CA Unpub Decisions

Accordingly, the petition for writ of mandate is denied in part and granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino to vacate its order denying summary judgment and summary adjudication, and to enter a new order granting summary adjudication of the contract cause of action and denying summary adjudication as to the fraud cause of action. Petitioners are DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

On December 23, 2004, Kern County resident Willis Warrant Lazelle (Lazelle) signed a handwritten, witnessed will leaving all of his properties, assets, and belongings to respondents Mary Lou Lee and/or Ray Hacker (Hacker and Lee). Shortly afterward, on December 26, 2004, Lazelle died of prostate cancer. Ray Hacker (Hacker) on April 25, 2005, signed a written disclaimer of any interest he might have had under the will. On June 13, 2007, Keffer filed a timely notice of appeal from the May 17, 2007, order for probate. The May 17, 2007, order for probate is affirmed. Costs on appeal are awarded to Hacker and Lee.

Defendant Andrew Arlington Ring was committed for an indeterminate period of time to the California Department of Mental Health (DMH) as a sexually violent predator (SVP). On appeal, defendant contends that his commitment for an indeterminate period violates his right to due process and equal protection. Court disagree and affirm the commitment.

On February 23, 2007, the prosecutor filed an information charging appellant, Mark Anthony Rodriguez, with felony possession for sale of a controlled substance (Health & Saf. Code, 11378, count one)[1], misdemeanor possession of 28.5 grams, or less, of marijuana ( 11357, subd. (b), count two), giving false information to a peace officer (Pen. Code, 148.9, subd. (a), count three), and public intoxication (Pen. Code, 647, subd. (f), count four). The information alleged three prior prison term enhancements (Pen. Code, 667.5, subd. (b)), two prior drug conviction enhancements pursuant to section 11370.2, subdivision (a), and one prior drug conviction enhancement pursuant to section 11370.2, subdivision (b). Rodriguezs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Rodriguez was advised he could file his own brief with this court. By letter on May 28, 2008, we invited Rodriguez to submit additional briefing. To date, he has not done so.

On July 19, 2007, the prosecutor filed an information charging appellant, Monique Leiva, with residential burglary (Pen. Code, 460, subd. (a), count one).[1] The information alleged one prior prison term enhancement ( 667.5, subd. (b)) and that the offense was a serious felony ( 1192.7, subd. (c)(18)) disqualifying Leiva from probation ( 462, subd. (a)). At the conclusion of a jury trial, Leiva was found guilty of the burglary allegation. Leivas appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Leiva was advised she could file her own brief with this court. By letter on May 21, 2008, Court invited Leiva to submit additional briefing. To date, she has not done so.

It was alleged in an amended information filed May 23, 2007,[1]that appellant David Franklin McMillon III was guilty of possession of cocaine base for purposes of sale (Health & Saf. Code, 11351.5; count 1) and actively participating in a criminal street gang (Pen. Code, 186.22, subd. (a); count 2), and that he had suffered a prior serious felony conviction (Pen. Code, 667, subd. (a)), which also qualified as a strike,[2]he had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)), and in committing the count 1 offense he acted for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1).
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant, apparently in response to this courts invitation to submit additional briefing, has submitted a letter in which he challenges the denial of his motion to withdraw his plea. Court affirm.

The court found appellant, T.X., was a person described in Welfare and Institutions Code section 602 after it sustained allegations charging him with battery on a school employee (Pen. Code, 243.6), battery on school property (Pen. Code, 243.2, subd. (a)(1)), and disturbing the peace of a school campus (Pen. Code, 415.5, subd. (a)). On November 20, 2007, the court committed T.X. to the Elkhorn Correctional Facility boot camp for a period not to exceed 365 days after which he would be released on probation to the custody of his parents.
On appeal, T.X. contends that one of his conditions of probation is ambiguous and overbroad. Court agree with T.X. and will modify the probation condition at issue. In all other respects Court affirm.

By extraordinary writ petition (Cal. Rules of Court, rule 8.452), petitioner asks this court to vacate the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing[1]as well as its jurisdictional and dispositional findings and orders as to his son R. and to direct the juvenile court to conduct a new jurisdictional hearing. Court deny the petition.

Michael R. Haltom appeals from the judgment following a jury trial in favor of his former employer, Southland Title of Orange County and Southland Title Corporation (hereafter collectively and in the singular Southland), in this wrongful termination action. Haltom contends reversal is required due to: (1) the trial courts refusal to give certain jury instructions; (2) inconsistent special verdicts; and (3) lack of substantial evidence to support the verdict. Court find his contentions without merit and affirm the judgment.

Pedro Cervantes appeals from a judgment of conviction of possession of methamphetamine, a lesser included offense of possession of methamphetamine for sale, active participation in a criminal street gang, and resisting arrest. The information also alleged that Cervantes committed the crime of possession of methamphetamine for sale for the benefit of, at the direction of, or in association with [the Plas] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (See Pen. Code, 186.22, subd. (b).) However, the jury found Cervantes not guilty of possession for sale and found not true the related enhancement allegation. The judgment is affirmed.

We appointed counsel to represent Rodriguez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Rodriguez was given 30 days to file a written argument on his own behalf. That period has passed, and we have received no communication from him. Rodriguezs appellate counsel refers this court to the following item in the record that might arguably support the appeal: the trial courts denial of his motion to vacate the imposition of a state restitution fund fine. Finding no error, Court affirm the judgment.

A jury convicted defendant Carlos Javier Aquino of premeditated attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. On appeal, defendant contends that (1) no substantial evidence supports his identification as the perpetrator, (2) the trial court abused its discretion by denying his motion for a mistrial grounded upon his inability to cross-examine a witness whose testimony was stricken after the witness invoked his Fifth Amendment privilege against self-incrimination, (3) the trial court erred by admitting over objection evidence that had been untimely disclosed by the prosecution, and (4) the trial court erred by refusing his request to give the jury a contemporaneous no sympathy for the victim instruction during the victims testimony. Court affirm the judgment.

Jessie Annie Bell McGee (mother) had four children, Sharron Wilkins (Wilkins), Raoul Jerome Robinson (Robinson), Odell McGee, Jr. (McGee), and Deborah Brown (Brown). When mother died, the only asset in her estate was a home in Oakland (Oakland property). Wilkins attempted to sell the Oakland property prior to any probate proceeding, but the sale did not close because Wilkins did not own the house. The buyer, James Beverly (Beverly), sued Wilkins and the real estate agent and company representing Wilkins in the real estate transaction for, among other things, breach of contract and fraud (Beverlylawsuit or Beverlyaction). Charla R. Duke (Duke)[2] provided legal representation for Wilkins in the Beverlyaction. Robinson filed a motion pursuant to California Rules of Court, rule 8.276(a)(1), requesting monetary sanctions in the amount of $75,495 against Wilkins and Duke for filing a frivolous appeal. Court award sanctions in the amount of $20,000 against Duke for challenging that portion of the judgment related to her $20,000 fee, and refer the matter to the State Bar of California. (Bus. & Prof. Code, 6086.7, subd. (a)(3).) The judgment is affirmed.

Eric Stanley Primas (appellant) appeals after a jury convicted him of residential burglary (Pen. Code, 459[1]) and the trial court sentenced him to 21 years in state prison. He contends the court (1) erred in denying his request to have the jury instructed on matters central to his defense; (2) erred in imposing a five-year enhancement that had not been pled against him; and (3) violated his constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) by imposing the upper term sentence. Court agree with appellants second contention and reject the remaining contentions. Court therefore affirm the judgment as amended to reflect a total sentence of 16 years.