CA Unpub Decisions

Defendants Howard R. Bass and Emmanuel Andrew Udeobong appeal from their respective judgments of conviction following a joint jury trial. The jury convicted both defendants of one count of grand theft (Pen. Code, 487, subd. (a)), convicted Bass of 12 counts of making a false health care claim (Pen. Code, 550, subd. (a)(6)), and convicted Udeobong of two counts of filing a false tax return (Rev. & Tax. Code, 19705, subd. (a)(1)). The court sentenced Bass to five years in state prison, and Udeobong to four years. On appeal, Bass contends that the trial court erred in not referring him for an evaluation under Welfare and Institutions Code section 3051 for possible commitment for narcotics treatment and rehabilitation. Udeobong contends that: (1) his trial counsel was ineffective for failing to object to an instruction on vicarious liability based on an uncharged conspiracy; (2) the trial court erred in failing to grant a new trial based on the conspiracy instruction; and (3) the convictions of filing a false tax return must be reversed because insufficient evidence on these counts was presented at the preliminary hearing. Court affirm the judgment as to both defendants.

Forest Construction Co., Inc. (Forest) sued Powers & Effler Insurance Brokerage, Inc. (Powers), alleging a single cause of action against Powers for negligence in failing to secure coverage for Forest as an additional insured on a subcontractors commercial general liability (CGL) policy. Forest appeals from the judgment entered after the trial court granted Powerss motion for summary judgment, as well as from the trial courts denial of its motions for leave to file an amended complaint and its motion for a new trial. Court affirm.

Douglas Mack, as beneficiary of the Janina M. Bowey Revocable Trust of 1997 (trust), appeals from an order awarding $51,356.91 fees and costs against the trust in a real estate matter. The award is based on an April 2, 2007 Order For Preliminary Distribution in which the probate court found the trust was contractually obligated to sell a Montecito estate (Ravenscroft) to respondents Jon R. Sorrell and Marie L. Sorrell. Court affirm.

The juvenile court conducted a jurisdictional hearing on a petition alleging that Joshua E. (minor) had committed two counts of attempted forcible rape (Pen. Code, 664/261, subd. (a)(2))[1](counts 1 and 2) and two counts of sexual battery by restraint ( 243.4, subd. (a)) (counts 3 and 4). During the hearing, the juvenile court granted the Peoples motion to amend counts 1 and 2 to allege that minor had committed assault with intent to commit rape in violation of section 220. At the close of the hearing, the juvenile court amended counts 1 and 2 to categorize the offenses as assault with intent to commit sexual assault and found true counts 1 and 2 as amended. The allegations in counts 3 and 4 were found not true and dismissed. Minor appeals on the grounds that: (1) his conviction must be reversed because he was convicted of a nonexistent crime, and (2) in the alternative, the juvenile courts true finding must be reversed because the petition was improperly amended after jeopardy attached and minor was denied his constitutional right to due process.

Defendants Way Off Broadway, LLC (WOB), et. al.,[1]appeal from the trial courts denial of their petition to compel arbitration of the claims made against them by plaintiff Beitler & Associates, Inc. dba Beitler Commercial Realty Services (plaintiff). Court reverse, and direct the trial court to enter a new order granting the petition to compel arbitration.

Lawrence Lovato appeals from the judgment entered following a court trial at which he was determined to be a mentally disordered offender (MDO). (Pen. Code, 2960 et seq.)[1] According to a psychiatrist, appellant suffered from two severe mental disorders: a "delusional disorder, persecutory type," and "pedophilia, sexually attracted to females." Appellant contends that the evidence is insufficient to show that (1) he in fact suffered from pedophilia, (2) he was in treatment for pedophilia for at least 90 days within the year preceding his parole release date, (3) the delusional disorder existed at the time of the MDO offenses; and (4) the delusional disorder was an aggravating factor in the commission of those offenses. Court affirm.

Nanette D. is the mother of Sabrina D., age nine in 2007, and Angelina D., then age two. The court found Sabrina and Angelina to be dependent children under subdivisions (a) and (b) of section 300 of the Welfare and Institutions Code. The care and custody of the children was taken from Nanette and the children were placed in the home of Rolando D., the father, under the supervision of the Department of Children and Family Services (DCFS). Nanette was allowed to reside in the home but she is not to be left alone with the children. Nanette appeals, principally on the ground that the evidence is insufficient to support the trial courts orders. Court affirm.

Plaintiff and appellant Discover Specialty Insurance Company (Discover) appeals from a judgment entered in favor of defendant and respondent Certain Underwriters at Lloyds London (Lloyds) following a trial by reference on Discovers action for declaratory relief, indemnity, and contribution to recover indemnity and defense payments made by Discover on behalf of its insureds in two underlying lawsuits. Court affirm the judgment.

In November 2002, Kerry MacDougall awoke to find his son shot in the head in the hallway. Fourteen-year-old Daniel MacDougall was killed in what proved to be a foiled home invasion robbery. The district attorney charged Victor Barragan, Terry Gonzales, Jr., Luis Dominguez and Gerardo Herrera with the crime. The information alleged the following felony offenses and enhancements as to all defendants: (1) in count 1, murder (Pen. Code, 187),[1]with the special circumstances of felony murder/attempted robbery and felony murder/attempted burglary ( 190.2, subds. (a)(17)(A) & (G)), and an enhancement for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)); (2) in count 2, burglary ( 459) with a personal firearm use enhancement ( 12022.5, subd. (a)); and (3) in count 3, attempted home invasion robbery ( 664/211) with enhancements for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)) and for committing the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The information also alleged in counts 4 and 5 that Barragan and Gonzales were each felons in possession of a firearm. ( 12021, subd. (a).) As to all relevant counts, the information alleged that Gonzales had a prior violent felony conviction. ( 667, subd. (b)-(i).)
On appeal, defendants collectively make over 20 claims of error. They argue that they are entitled to reversal because of evidentiary error, prosecutorial misconduct, instructional error, and sentencing error, among other claims. Court strike the section 186.22, subdivision (b)(1)(C) enhancement imposed on each defendant in count 1, and affirm the judgment as modified.

On February 26, 2008, a highway patrol officer activated his overhead lights and attempted to stop a car driven by defendant David Charles Jackson for weaving in a traffic lane. Defendant failed to stop and instead led the officer on a
high speed chase, exceeding a speed of 100 miles per hour, running red lights, and driving eastbound in the westbound lane around blind corners. Defendant lost control of his car and crashed into an embankment. Defendant attempted to flee but

This appeal is a companion to a petition for writ of habeas corpus, In re Michael Leyland Teague on Habeas Corpus, D049618. In light of the disposition in that matter, this appeal is moot and it is dismissed.

Michael Leyland Teague petitions for a writ of habeas corpus, asserting various claims. Court issued an order to show cause. court now vacate the judgment. Court conclude petitioner was denied the effective of assistance of counsel when his trial attorney failed to interview or investigate a witness whose testimony would have been highly useful to the defense.

William Lott appeals a judgment entered in favor of Coldwell Banker Residential Brokerage Company and its agents Linda Westcott and Shirley Ramey (collectively, Coldwell Banker) after the superior court sustained without leave to amend their demurrers to his second amended cross-complaint against them for breach of contract, negligence, equitable indemnity and breach of fiduciary duty. Lott contends that the court erred in concluding that his amended allegations were so inconsistent with his prior pleadings that they were a sham, and thus to be disregarded, and sustaining the demurrers without leave to amend based on that conclusion. Court agree with Lott's contention and reverse the judgment and remand the matter for further proceedings.

M.R. Contreras Construction, Inc. (the company) and Manuel R. Contreras appeal from a judgment awarding attorney fees and costs of almost $30,000 to Edmund M. Fansler and Kim L. Fansler as trustees of the Fansler Family Living Trust (together the Fanslers) under Civil Code section 1717 and the attorney fees provision of a home renovation contract (the contract) into which the parties had entered. The company sued the Fanslers for money they allegedly owed under the contract, and the Fanslers cross-complained against the company and Contreras for negligence and breach of contract (among other claims), alleging they failed to complete the project in a timely fashion and the work was substandard.
The company and Contreras contend (1) the court abused its discretion in finding that the Fanslers were the prevailing parties pursuant to Civil Code section 1717, and (2) the court abused its discretion in finding that the Code of Civil Procedure section 998 offer to compromise was ambiguous and not subject to acceptance. Court conclude the court did not abuse its discretion. Accordingly, Court affirm the order and judgment.