CA Unpub Decisions

Tyler John Berryhill entered negotiated guilty pleas to six counts of residential burglary (Pen. Code, 459, 460)[1]and admitted he had two prior serious/violent felony or strike convictions ( 667, subds. (b)-(i)) and two prior serious felonies ( 667, subd. (a)(1)). As part of the plea bargain, Berryhill also admitted an allegation under section 667.5, subdivision (c)(21) that in one of the burglaries the victim was present. At sentencing, the trial court dismissed one of the prior strike convictions and sentenced Berryhill to 27 years four months in prison.
Berryhill did not obtain a certificate of probable cause.

Krystle H. and Eric S. appeal the judgment terminating their parental rights to Erika S. They contend the juvenile court erred by summarily denying their Welfare and Institutions Code section 388 petitions. Krystle also contends the court erred by declining to apply the beneficial relationship and sibling relationship exceptions to termination of parental rights ( 366.26, subd. (c)(1)(B)(i), (v)), and Eric joins in those contentions. Court determine the contentions to be without merit and affirm.

A jury convicted James L. Abbott, Jr. (Abbott) and Clifford R. Garrett (Garrett) of attempted murder (Pen. Code, 664 & 187),[1]burglary ( 459), torture ( 206), mayhem ( 205) and assault with a deadly weapon ( 245, subd. (a)(1)). As to Abbott, the jury further found that he inflicted serious bodily injury ( 12022.7, subd. (a)) and used a deadly weapon ( 12022, subd. (b)(1)) during the attempted murder and aggravated assault, and he used a deadly weapon during the torture and mayhem. In bifurcated proceedings, Abbott admitted having suffered two prior convictions for which he served prison terms ( 667.5, subd. (b)), two prior serious convictions ( 667, subd. (a)) and three strikes ( 667, subds. (c) & (e)). Garrett admitted having suffered four prior convictions for which he served prison terms. Abbott was sentenced to prison for 27-years-to-life plus 15 years and Garrett to life plus four years. The defendants appeal, making a number of arguments, all of which we reject. Therefore, we affirm Abbotts judgment, while directing the trial court to make an addition to his abstract of judgment. Court also affirm Garretts judgment, except that Court remand the matter so he can be sentenced for his burglary conviction, which the trial court neglected to do.

Defendant Walter Block appeals from a judgment awarding Melvin and Valondra Lesher $30,000 for breach of an option to purchase real property for $235,000. He contends that the option was invalid. He also contends that the Leshers presented no evidence that they attempted to exercise the option and that because they failed to prove that they were able to purchase the property, they were not entitled to damages. Finally, he contends that there is no evidentiary basis for the courts award of $30,000.
Court agree that the Leshers failed to present any evidence of their ability to purchase the property for the contract price on the date of the breach, and we reverse the judgment.

Defendant pled nolo contendere to possession for sale of a controlled substance in violation of Health and Safety Code section 11351. In return, defendant was sentenced to a total term of two years in state prison with credit of 367 days for time served. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) he is entitled to one more day of presentence custody credit. Court agree with the parties that defendant is entitled to one more day of custody credit but reject his remaining contention and affirm the judgment.

In this matter, we have reviewed the petition and have given real party in interest the opportunity to respond. Court have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Although Code of Civil Procedure section 1775 ff. authorize the court to direct the parties to participate in mediation in most cases where the matter would be subject to mandatory arbitration, cases that raise substantial equitable issuesas does this oneare exempt from arbitration. (Cal. Rules of Court, rule 3.811.) Furthermore, the court should take into account the parties views on the amenability of the case before ordering mediation. (Cal. Rules of Court, rule 3.871.)

Summer Vindiola, a minor, was struck by a car as she attempted to cross Prescott Road in a marked crosswalk. Vindiola, through her guardian ad litem, sued the City of Modesto alleging a dangerous condition of public property. The city moved for summary judgment, which was granted. Court will affirm the judgment.

Appellant Augustine Mejia appeals from the judgment entered following a jury trial in which he was convicted of possessing methamphetamine for sale (Health & Saf. Code, 11378; count 1), resisting, delaying, or obstructing a peace officer (Pen. Code, 148, subd. (a)(1); count 2), and possessing a device used for unlawfully injecting or smoking a controlled substance (Health & Saf. Code, 11364; count 3). The trial court found that appellant had previously been convicted of a violation of Health and Safety Code section 11378 (Health & Saf. Code, 11370.2, subd. (c)) and served a prior prison term (Pen. Code, 667.5, subd. (b)). Appellant was sentenced to six years in prison. Appellant contends (1) the trial court erred in instructing the jury with CALJIC No. 2.03, and (2) the trial court made comments to the jury that coerced the verdict, in violation of appellants right to due process. Finding no reversible error, Court affirm.

At the conclusion of a breach of contract trial before the court, sitting without a jury, the court granted a nonsuit (Code Civ. Proc., 581c) for defendant because of plaintiffs noncompliance with the notice provisions of Civil Code section 1799.91. Plaintiff filed a notice of appeal from the order granting nonsuit. Court reverse and remand for the trial court to consider and rule upon plaintiffs request to reopen the evidence on the question of whether statutory notice was given.

Chad Allen Groth was convicted of driving with a blood alcohol level of .08 percent or more. On appeal, he argues that his constitutional right to due process of law was violated when, before his trial, the state laboratory destroyed the blood sample upon which the charge was based. Court disagree. The sample had no apparent exculpatory value, and officials did not act in bad faith. The judgment is affirmed.

Plaintiffs and appellants Maria Castillo and her daughter Lizette, who was injured while using a rope swing, appeal from summary judgment entered in favor of defendants and respondents Raul and Rosa Monroy. Appellants contend the trial court erred in granting respondents summary judgment motion because a triable issue of fact existed. Court will affirm.

Appellant Matrix Motor Co., Inc. (Matrix) sued respondent Ridgecrest Redevelopment Agency (the Agency) for specific performance, breach of contract, declaratory relief, quiet title and mandamus. The Agency demurred to all causes of action and the trial court granted the demurrer on the grounds that Matrixs complaint did not comply with the Government Claims Act and was barred by the statute of frauds. On appeal, Matrix argues that the trial court erred in granting the demurrer because Matrix did properly file a claim with the Agency before commencing any action and because Matrixs contractual claims were rooted in a written and signed agreement between the parties. Court affirm.

Appellants Sergio and Sandra Miranda appeal from the judgment entered after the trial court found in favor of respondent, Carl W. Williams, in the Mirandas action for breach of a residential purchase agreement and specific performance. The court found that Williamss performance was excused by the defense of impossibility. On appeal, the Mirandas contend the trial court lacked substantial evidence to make that finding. Court affirm the judgment.

Defendant was convicted of one count of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under 14. He claims the court erred by allowing evidence of prior sexual misconduct and argues numerous other errors, mostly with respect to jury instructions. Court find no error and affirm the conviction.