CA Unpub Decisions

On an early evening on December 6, 2007, a group of teenagers stole some ice cream from an elderly (almost 70-years old) ice cream vendor, then soon surrounded and attacked a young man who had an iPod. Jesus P., who was just shy of 14 years old at the time, was later adjudged a ward of the court based on his participation in the two thefts, with the court finding true allegations of one count of robbery (Pen. Code, 211[1]) and one count of petty theft ( 484, 488). On appeal, he contends that there was insufficient evidence (1) that he participated in the ice cream theft and (2) that he knew his acts were wrongful (see 26 [requiring clear and convincing evidence juvenile offenders under age of 14 knew about wrongfulness of the act charged against them]). Court affirm.

Rex Lee Bell was convicted by a jury of committing lewd and lascivious acts against two 13-year-old girls and sentenced to five concurrent terms of 15 years to life in prison. He asserts that (1) the court abused its discretion when it admitted photographs of Bell vacationing with various unidentified young women; (2) the prosecutor committed prejudicial misconduct; and (3) Bells sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. For the following reasons, Court affirm.

Defendant Thomas Lee Frazier appeals a judgment entered upon a jury verdict finding him guilty of numerous counts of lewd acts with a child under the age of 14, including oral copulation, sodomy, and digital penetration (Pen. Code,[1] 288, subd. (a)); sodomy of a child under the age of 14 by force, duress, menace, or fear ( 269, subd. (a)); and attempted lewd act with a child under the age of 14 ( 664, 288, subd. (a)). He was sentenced to serve a total of 225 years to life in prison for the violations of section 269, subdivision (a), and his sentences on the other counts were ordered to run concurrently to the 225 years. He contends his confession was obtained in violation of his rights under the Fifth Amendment, that he received ineffective assistance of counsel, and that the trial court committed sentencing error. We order the sentences on counts 18 through 32 stayed pursuant to section 654, direct the trial court to amend the abstracts of judgment, and affirm in all other respects.

In this personal injury action, plaintiff Joseph Royse appeals from summary judgments entered in favor of defendants Lexington Insurance Company and DC3-E, LLLP. He contends there are triable issues of fact on the questions of his employment status, and his claims for premises liability and civil conspiracy. He also argues that the trial court erroneously ruled on evidentiary objections. Court affirm.

Jorge Montiel sued his employer, the City and County of San Francisco (City), for allegedly violating his rights under Californias Fair Employment and Housing Act (Gov. Code, 12940 et seq. (FEHA)). Montiels complaint set forth two causes of action, which in essence amounted to three distinct FEHA-based claims. The trial court granted the Citys motion for summary adjudication on two of the claims, for discrimination and retaliation, but denied it as to the third, for race-based harassment. That cause of action went to a jury, which returned a verdict in favor of the City.Montiel has appealed, contending first that the Citys motion for summary adjudication was erroneously granted. We reject this contention because our de novo review leads us to agree with the trial court that Montiel failed to make the required prima facie case and did not rebut the Citys legitimate nondiscriminatory or nonretaliatory explanation. We also reject Montiels contention that an in limine motion prejudiced him in presenting his harassment claim to the jury. In light of these conclusions, Court affirm.

In a complaint filed July 25, 2006, naming as defendants Lucky United Properties Investments, Inc., Chin Teh Shih, in her capacity as Trustee of the Woo Family 2000 Trust, and Salvio Street LLC, plaintiffs Eric W. Lien and Pi-Ching Yen sought a declaration that Lien and Yen owned a 62.5 percent interest in certain property located in San Francisco. The trial court rejected Lien and Yens complaint on summary judgment, ruling it was barred under principles of res judicata. The court also ruled that Salvio Street had purchased the property free and clear of any interest that Lien and Yen were asserting. Lien and Yen now appeal arguing the court applied the principles of res judicata incorrectly and that Salvio Street purchased the property subject to their ownership claim.

Plaintiff and appellant, Brad Sanders, appeals from an order denying his petition for writ of mandate. He contends that defendants and respondents City of Pleasant Hill, Pleasant Hill Planning Commission and Pleasant Hill City Council (the City) unlawfully applied, to a project put forward by real party in interest Harman Management Corporation, a categorical exemption under the California Environmental Quality Act (CEQA). He also argues that the Citys approval of a use permit and development plan permit for the project violated the Citys Municipal Code. Court disagree and affirm the order.

Plaintiff Ron Patton is a construction contractor who rebuilt the residence of defendants, John Candelori and Polly Vandersyde-Candelori, after a fire. He appeals from a judgment dismissing his causes of action for breach of contract and foreclosure of a mechanics lien against the Candeloris and the Polly Vandersyde Trust. Plaintiff maintains that the trial court erred in (1) limiting his recoverable damages for breach of contract and dismissing his mechanics lien claim; and (2) sanctioning his trial counsel in the amount of $162.50 for failing to appear for trial on May 30, 2007. Court affirm the judgment and decline to reach the merits of plaintiffs sanctions argument.

As part of a negotiated disposition, defendant Brian Stephen Abrao pleaded no contest to evading a pursuing police officer causing serious bodily injury to another motorist, and admitted a Penal Code[1] section 12022.7 enhancement allegation that he personally inflicted great bodily injury on the victim. Before sentencing, defendant moved to strike the enhancement allegation on the ground that great bodily injury was also an element of the underlying offense. The trial court stayed punishment on the enhancement, but declined to strike it. Defendant contends the trial court erred in so ruling. Court agree, and will reverse the judgment and remand the matter to the trial court to strike the section 12022.7 finding and redetermine defendants custody credits.

After the lower court denied his motion to suppress, appellant Alfonso Gomez pleaded no contest to one count of being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a).) On appeal, Gomez contends that the trial court erred in denying his motion to suppress evidence obtained pursuant to a search warrant. He does not challenge the validity of the warrant, but rather the manner of its execution. He argues the police officers should have known they were searching multiple rental units rather than a single family dwelling, and improperly accessed his bedroom and a locked drawer. Court disagree, and Court affirm.

After a jury trial, appellant was convicted on two of three charged counts and acquitted on the third. The court found two prior theft conviction allegations to be true. It sentenced him to a total of four years in state prison, that sentence being composed of the two-year term on the felony theft count plus a consecutive two-year term for a probation violation in another case. Appellant appeals, claiming that the prosecutions use of peremptory challenges against two African-American and two Latino prospective jurors violated his constitutional rights, and that the trial court thus erred in denying his Batson-Wheeler motion. Court disagree, and hence affirm the judgment.

C.C. appeals from a disposition declaring him to be a ward of the court. He contends the trial court erred when it failed to characterize one of his offenses as either a felony or a misdemeanor. Court agree and will remand so that the trial court can make that determination.

D.S. appeals from a judgment declaring him a ward of the juvenile court under Welfare and Institutions Code section 602 and placing him on probation. Court-appointed counsel has briefed no issues, but has asked this court to independently review the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Court affirm.

Appellant D.H. was declared a ward under Welfare and Institutions Code section 602.[1] The juvenile court determined that appellant had committed a second degree robbery under Penal Code section 211 when he brandished what appeared to be a gun and threatened to shoot a security guard who was apprehending one of his cousins as she stole two bottles of liquor from a grocery store. Appellant contends the court erred in denying his motion to dismiss under Welfare and Institutions Code section 701.1 because the evidence at the close of the prosecutions case was insufficient to support the charge of robbery. Court affirm.