CA Unpub Decisions

J.C., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further section references are to the Welfare and Institutions Code unless otherwise specified). Petitioner also requests a stay of proceedings in the respondent court. Court shall deny the petition, rendering moot the request for a stay.

This is a companion case to New Hampshire Indemnity Co. v. Professional Claim Services, Inc. (Dec. 5, 2008, D051230 [nonpub. opn.]), in which we affirmed a defense summary judgment. New Hampshire Indemnity Co., doing business as AIG Specialty Auto (AIG) challenges a postjudgment order awarding Professional Claims Services, Inc. (PCS) contractual attorney fees as the prevailing party. Court affirm the order and remand the matter for the trial court's determination of attorney fees on appeal.

Timothy Michael Caban entered a negotiated guilty plea to battery with serious bodily injury (Pen. Code,[1] 243, subd. (d)) and admitted personally inflicting great bodily injury ( 12022.7, subd. (a)) and committing a hate crime ( 422.75, subd. (a)). Caban also admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)) and a prior serious felony conviction ( 667, subd. (a)(1)). The plea bargain called for a stipulated prison sentence of 17 years for this case and a companion case. At sentencing, the trial court sentenced Caban to 12 years in prison in this case by imposing the low term of two years on the battery, which was doubled under the Three Strikes Law, plus a five-year enhancement for the prior serious felony ( 667, subd. (a)(1)) and a three-year enhancement for inflicting great bodily injury.[2] The court stayed imposition of the hate crime enhancement pursuant to the stipulation of the parties. ( 654.) In addition, the court imposed a restitution fine of $3,400 ( 1202.4, subd. (b)) and imposed victim restitution ( 1202.4, subd. (f)) in the amount of $1,088.86, subject to modification at a later date if additional bills were submitted. The court awarded Caban a total of 240 days custody credit. Caban did not obtain a certificate of probable cause.

Stephen J. Gill appeals the judgment recommitting him as a mentally disordered offender (MDO) (Pen. Code, 2970, 2972). Citing Peoplev.Wende (1979) 25 Cal.3d 436 (Wende), Anders v. California (1967) 386 U.S. 738 (Anders), Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), and People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor), his appointed counsel asks that we independently review the record to determine whether there are any arguable appellate issues. Pursuant to Anders, counsel lists, as a possible, but not arguable issue, whether Gill's "waiver of his rights and presence at the hearing and his stipulation to extend his commitment made under oath and witnessed by a social worker at the institution after his personal consultation with counsel was properly accepted by the court below?" Gill has filed a supplemental brief, contending he was forced by the threat of jail confinement to waive his right to a jury trial on the extension of his commitment and appointed appellate counsel is ineffective. The appeal is dismissed.

Plaintiffs Maria Guerrero, individually (Guerrero) and as guardian ad litem for Robert Guerrero, Raymond Rangel, individually and as heir at law to Hermila Rangel, the Estate of Hermila Rangel and Vanessa Rangel (collectively Plaintiffs), who were victims of a single vehicle rollover accident, appeal from a judgment entered in favor of defendant Ford Motor Company (Ford) after a jury trial. They claim that the trial court erred in refusing to grant their motion for a new trial because the jury gave inconsistent answers to questions on the special verdict form, and because the evidence was insufficient to support the jurys finding that Guerreros use of the vehicle was not foreseeable. Court disagree and affirm.

A police officer started following a car, which soon pulled into the driveway of a house. Defendant was the driver; he had two passengers. On the front console of the car, the police found rock cocaine. They also found rock cocaine in one passengers hat. That passenger, however, denied having anything to do with the rock cocaine found on the console; he testified that it was defendants. Meanwhile, in a bedroom of the house, the police found a pistol and ammunition. There was substantial evidence that defendant was staying in the bedroom. After a two-day trial, in which defendant represented himself, it took the jury just 55 minutes to find defendant guilty of possession of possession of a controlled substance, namely rock cocaine (Health & Saf. Code, 11350, subd. (a); see also Health & Saf. Code, 11054, subd. (f)(1)); unlawful possession of a firearm (Pen. Code, 12021, subd. (a)(1)); and unlawful possession of ammunition (Pen. Code, 12316, subd. (b)(1)). In a bifurcated proceeding, the trial court found true one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) and one 1-year prior prison term enhancement (Pen. Code, 667.5, subd. (b)). Accordingly, defendant was sentenced to a total of six years four months in prison. The judgment is affirmed.

In 1989, plaintiffs William and Susan Pritchard built a house on property that they owned in the rural mountain community of Cedarpines Park. Local law required that the house be set back 15 feet from the lot line between the Pritchards and their neighbors. A surveyor, however, made a mistake in determining the location of the lot line. As a result, while the Pritchards house was entirely on their own property, it had less than the required 15 foot setback from the true lot line. Here matters rested for about 15 years, until defendant Verna Avarell bought the property on the other side of the lot line and, together with her husband Kory Avarell, began building a house that assertedly penetrated 18 inches into the 15-foot setback. The Pritchards then filed this action, seeking to quiet title to the entire setback based on adverse possession. The trial court sustained a demurrer without leave to amend, on several grounds, including that the Pritchards had failed to allege facts showing that they had enclosed, cultivated, or improved the disputed area. Court agree with the trial court. Hence, Court will affirm.

Defendant Melvin Lamar Hodge shot his neighbor, Herbert Daire, after defendant, along with his cousin, exchanged words with Daire in the stairwell of their Barstow apartment complex. Defendant was convicted of attempted murder and assault with a firearm. Defendant now contends:
1. Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3517 did not fully instruct the jury on reasonable doubt as it pertained to the greater and lesser offenses.
2. The trial court did not adequately poll the jury after receiving unnecessary verdict forms on the lesser offense enhancements and erred by refusing to release the jurors names and addresses in order to investigate the additional verdicts for a possible new trial motion.
3. CALCRIM Nos. 603 and 604 deprived him of his due process rights and improperly intruded into the deliberative process. Court conclude that there was no prejudicial error and affirm the judgment.

Defendant Lanny Bennett Woosley was found guilty on 11 counts, including two counts of murder. In his appeal from the original judgment, we affirmed with respect to the conviction; however, we reversed with respect to the sentence and remanded with directions for resentencing. (People v. Woosley (Sept. 21, 2007, E039885) [nonpub. opn.] (hereafter Woosley I).)

The trial court duly resentenced defendant. He appeals again, asserting one sentencing error and one error in the abstract of judgment. The People concede both errors. With respect to the asserted sentencing error, Court reject their concession. With respect to the error in the abstract, Court accept it. Accordingly, Court affirm the judgment, but Court direct the trial court to prepare an amended abstract.

Codefendants and roommates Ray Panagiotis Southerd and Jacob Douglas Wheldon pled no contest to marijuana charges following the denial of a motion to suppress evidence found during a search of their apartment. On appeal, Southerd contends (1) the officers did not have probable cause to believe Southerd resided at the apartment before they entered, (2) the knock-and-talk procedure did not result in consent for the officers to enter the apartment, (3) no exigent circumstances justified the entry, and (3) no legitimate justification supported a protective sweep. Wheldon contends (1) the officers did not have probable cause to believe Southerd resided at the apartment before they entered and (2) the knock and talk rule did not apply because the officers did not have the honest intent to ask questions. Court affirm.

Appellant Miguel Angel Ayon appeals from the judgment entered following a jury trial in which he was convicted of corporal injury on a cohabitant (Pen. Code,[1] 273.5, subd. (a)), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), two misdemeanor counts of violating a court order ( 273.6, subd. (a)), and one misdemeanor count of resisting, delaying, or obstructing a peace officer ( 148, subd. (a)(1)). Appellant contends the trial court erred by (1) restricting his use of leading questions during cross-examination of the victim, and (2) restricting his cross-examination of the victim regarding her arrest and incarceration after failing to appear as a witness at appellants trial. Court affirm.

Plaintiff Russell Miura sued defendant Jessica Eliseo for injuries arising out of a car accident. A jury found in defendants favor and the trial court denied plaintiffs motion for judgment notwithstanding the verdict. Plaintiff appeals contending the trial court erroneously denied his motions in limine to exclude evidence of his prior workers compensation claims and testimony by defendants biomechanical expert. Court agree with plaintiffs contention regarding the prior claims but conclude no prejudice occurred and reject his claims with respect to the biomechanical expert. Accordingly, Court affirm.

A jury convicted defendant Wenceslao Calera of second degree robbery, street terrorism, and possession of a firearm by a felon. It also found true he personally used a firearm in committing the robbery. Subsequently, the trial court found true the allegations defendant had five prior strikes, four prior serious felonies, and two prior prison terms. Defendant was sentenced to state prison for a total of 30 years plus 25 years to life. He appeals, contending there was insufficient evidence to support his street terrorism conviction. We agree. Defendants conviction for street terrorism is reversed and the case remanded for resentencing. In all other respects, the judgment is affirmed.

Defendant and cross-defendant Fladeboe Volkswagen, Inc. appeals from a summary judgment in favor of defendant and cross-complainant Volkswagen of America, Inc. (VW) against plaintiff Nathan J. Sheridan in an action for breach of express and implied warranty and violation of the Song-Beverly Consumer Warranty Act (Civ. Code, 1790 et seq.; Song-Beverly Act). Fladeboe contends that the court erred in finding VW met its initial burden to negate the causation element under the express warranty claim, arguing in part that its objections to VWs declarations should have been sustained, and that it raised a triable issue of fact as to causation. We agree Fladeboe raised a triable issue of material fact as to causation and the courts order granting summary judgment erroneously included a finding to the contrary. But, as both parties agree, the motion was properly granted on other grounds. Therefore, Court affirm the judgment but order the trial court to modify the order by striking the provision as to causation. Court filed a motion to dismiss the appeal on the grounds the appeal is premature because the notice was filed before the judgment was entered and Fladeboe has no standing to appeal. Court disagree and deny the motion.