CA Unpub Decisions

On appeal from a jury verdict, defendant Pablo Perez argues that his sentence on three different counts violates the proscription in Penal Code section 654 against multiple punishments. The judgment is affirmed

Pecuniary Capital, LLC (Pecuniary Capital) and Jalisco Land Corporation (Jalisco) sued Orchard Heights Development, LLC (Orchard Heights) for claims arising from the sale of certain vacant land. According to Pecuniary Capital and Jalisco, they agreed to sell the land to Orchard Heights and Orchard Heights promised to develop the property; Orchard Heights then failed to develop the property. Orchard Heights filed a demurrer, contending that the alleged promise to develop the property was an oral promise barred by the statute of frauds and an integration clause in the written agreement. Orchard Heights further argued that Pecuniary Capital lacked standing to sue because it had conveyed its interest in the property to Jalisco. Court reverse in part and affirm in part with directions set out below.

This appeal arises out of nine years of highly contentious litigation, primarily over child custody, support and visitation of David Stagner and Mary Lou Stagners two children. David Stagner (father) has persistently sought to regain contact, visitation and custody of his children following dissolution of his marriage with Mary Lou Stagner (mother). Court conclude the trial court did not abuse its discretion in denying fathers section 473 motion since the orders and judgment were not void and it was too late to set them aside. In addition, the vexatious litigant order is sufficiently supported by the record. Mothers request for sanctions is denied on procedural grounds, as well as on the ground the appeal is not sufficiently frivolous to warrant this court to award sanctions on its own motion. The judgment is affirmed.

A jury convicted defendant of possession of methamphetamine. (Health & Saf. Code, 11377, subd. (a).) Thereafter, defendant admitted the truth of allegations that he had suffered a prior strike conviction (Pen. Code, 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and served two prior prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced defendant to an aggregate term of eight years imprisonment, consisting of the upper term of three years, doubled pursuant to the strike prior, and an additional one year, consecutive, on each of the two prior prison terms. On appeal, defendant contends the court committed Cunningham[1]error in imposing the upper term, that defendants counsel below was constitutionally ineffective for failing to object on that basis, that the court violated constitutional principles against ex post facto punishment by proceeding pursuant to the amended version of Penal Code section 1170, subdivision (b), and that the court abused its discretion in imposing the upper term. Court find defendants contentions unavailing and, therefore, affirm the judgment in full.

Defendant was convicted by a jury of three counts of robbery and one count of kidnapping for robbery. On appeal, defendant contends that the trial court erred in (1) admitting the in-court identification of defendant by a witness who had previously viewed an unduly suggestive photographic lineup, (2) instructing the jury that they could consider the extent to which the witnesses were certain of their in court identifications of defendant, and (3) failing to stay one of the robbery sentences pursuant to Penal Code section 654. Court agree with defendant as to the application of section 654 but reject his other arguments.

An information charged defendant and appellant Tyrone Ingram with willfully and unlawfully possessing a weapon, a shank, in a penal institution under Penal Code section 4502, subdivision (a).[1] The information also alleged four strike priors under section 667, subdivisions (c) and (e)(2)(A). Following a bifurcated trial, the jury found defendant guilty of the charge and found true the special allegations. The trial court sentenced defendant to state prison for 25 years to life.
On appeal, defendant contends that the trial court abused its discretion (1) in denying defendants discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); and (2) in failing to dismiss his strike priors. In a supplemental brief filed by defendant, he further contends that he was rendered ineffective assistance of counsel (IAC). For the reasons set forth below, Court shall affirm the judgment.

This is an appeal from a judgment of dismissal on a petition for writ of mandate entered after the trial court granted a motion for judgment on the pleadings. The appellants are four court reporters employed by the San Bernardino County Superior Court (hereafter referred to as plaintiffs). The respondents (hereafter referred to as defendants) are the San Bernardino County Superior Court, and its executive officer. Plaintiffs filed their petition for writ of mandate in order to compel defendants to pay plaintiffs the higher rate of compensation set out in Government Code section 69950, subdivision (a)[1]when unforeseen circumstances require plaintiffs to reproduce in whole or substantial part a transcript that previously had been produced. Plaintiffs also sought declaratory relief, and the compensation, or fees, defendants allegedly owed as a result of having paid plaintiffs the lower rate set out in section 69950, subdivision (b) for reproducing transcripts that previously had been produced. Defendants moved for judgment on the pleadings on the ground that plaintiffs had not filed a claim under the Government Claims Act, section 900 et seq., in particular sections 905, 910, and 945.4, which is a prerequisite to recovering damages from a public entity. The trial court agreed, granted defendants motion, and entered judgment of dismissal against plaintiffs.
Plaintiffs contend in this appeal that in addition to recovering fees allegedly owed by defendants, their petition for writ of mandate seeks declaratory relief and a writ of mandate compelling defendants to comply with section 69950, neither of which is subject to the Government Claims Act. Therefore, plaintiffs contend that the trial court erred in granting defendants motion for judgment on the pleadings. Court agree with plaintiffs, for reasons Court explain below, and therefore will reverse the judgment.

A jury found Clarence Roberts, Jr., defendant and appellant (hereafter defendant), guilty of attempted robbery (Pen. Code, 211 & 664)[1]and robbery ( 211), and after defendant waived his right to a jury, the trial court found true the special allegations that defendant had two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction ( 667, subd. (a)(1)). The trial court sentenced defendant to serve a determinate term of five years in state prison on the section 667, subdivision (a)(1) prior conviction, and in accordance with the mandate of the three strikes law, imposed terms of 25 years to life in state prison on count 2 and count 3, to be served consecutively. Court disagree with defendants claims, for reasons explained below. Therefore Court will affirm.

Defendant and appellant Robert Forest Bobbitt pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and was granted probation for three years pursuant to Proposition 36 (Pen. Code, 1210.1). Probation was terminated on December 18, 2007, and defendant was sentenced to the upper term of three years in state prison. Citing the Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant argues the trial court violated his constitutional right to a jury trial when it imposed the upper term.

This case presents the not infrequent, but nevertheless difficult, question of whether the parents dramatic, yet short term, correction of the long-term problems leading to a minors removal from custody is sufficient to justify granting them reunification services, pursuant to Welfare and Institutions Code section 388[1]petitions, which, due to the parents previous failure to reunify with other children, were never initially provided. We hold that, under the facts of this case, it was not an abuse of discretion to deny the parents section 388 petitions when the parents long term drug abuse and failure to reunify with previous children is weighed against their short term efforts to remain clean and provide minor with suitable housing. Court further find that substantial evidence supported the courts finding that the beneficial parental relationship exception was inapplicable and, therefore, affirm its order terminating parents parental rights.

The father of E.B. appeals following a judgment terminating his parental rights. He challenges the summary denial of his petition to modify the prior order terminating services (Welf. & Inst. Code, 388[1]), in which he sought to reinstate reunification services. Court affirm.

The San Bernardino County District Attorney filed an information charging defendant and appellant Craig Alan Steinwand with possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. The information further alleged that defendant had three prior convictions for possession of a controlled substance for sale within the meaning of Health and Safety Code section 11370.2, subdivision (b), and that he served three prior prison terms, within the meaning of Penal Code section 667.4, subdivision (b). On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence. For the reasons set forth below, Court affirm the judgment.

On July 6, 2005, defendant pled guilty to one count of possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)), and one count of being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).) In accordance with the terms of the plea bargain, defendant was granted probation, on specified terms, including, among other conditions, a requirement that he serve 120 days in local custody on weekends, register as a drug offender (Health & Saf. Code, 11590), and report to the probation officer. A month after the guilty plea, defendants probation was revoked because he did not report to the probation officer or surrender to serve his weekend jail term, and the probation department had no valid California address for him. On October 18, 2005, defendant failed to appear at the revocation hearing, so a bench warrant was issued for defendants arrest.
Probation condition No. 16 is modified to read: Not associate with any unrelated person known to you to be on probation or parole. As modified, the judgment is affirmed.

This court issued an alternative writ on January 17, 2008. In it, respondent California Department of Corrections and Rehabilitation was ordered to grant petitioner a reconsideration of his gang status or, in the alternative, show cause why this court should not grant relief. Respondent chose the latter course. Court now deny Carlos Montess petition for habeas corpus.