CA Unpub Decisions

Randall and Trudy McAvoy in their capacity as trustees of a family trust (McAvoys) owned a commercial building (property) that housed their carpentry studio (business) and four tenants. McAvoys sold the property and business to Charles Hughes, who formed two entities Charvania Investments LLC (Charvania), and Willster Construction, Inc. (Willster) for the transaction. In June 2004, Charvania bought the property for $2.7 million, and Willster bought the business for $750,000. The buyers deposited cash and obtained Small Business Administration (SBA) loans through Community Bank, and McAvoys carried back secured notes on the property and business. Let a peremptory writ of mandate issue directing the superior court to vacate its order denying the motion for summary judgment, to reconsider the motion, and to enter an order in compliance with statute. McAvoys are entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

A jury convicted defendant of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)),[1]assault with a firearm ( 245, subd. (a)(2)) and making criminal threats ( 422), during all of which he used a firearm ( 12022.5, subds. (a) & (d)). The jury also convicted defendant of assault with a deadly weapon ( 245, subd. (a)(1)) and found, in connection with inflicting corporal injury on a cohabitant, that he inflicted serious bodily injury ( 12022.7, subd. (e)). He was sentenced to prison for 21 years and appeals claiming the jury was misinstructed and sentencing error occurred. Court reject his contentions and affirm.

Defendant, Jesse Adrian Wagner, impersonated a peace officer while he worked as a bail bondsman. One night, defendant drove a Crown Victoria Interceptor automobile, which was equipped with police gear, and pulled over Pedro Pacheco (Pacheco/victim). Defendant searched Pacheco, removed his wallet, and took his cash and identification cards. When defendant was arrested three and a half months later, police discovered a baton on his person. On appeal, defendant contends that (1) his trial counsel rendered ineffective assistance, (2) the prosecution committed a Brady[3]violation by failing to disclose evidence, (3) the photo identification procedure was so suggestive as to violate due process, (4) the courts failure to remove a nondeliberating juror violated his right to an impartial jury, (5) the trial court improperly imposed the upper term on the robbery count, and (6) cumulative error requires reversal. Court reject all of defendants claims and affirm the judgment.

Pursuant to a plea agreement, defendant Darius Isaac Nazari pled guilty to assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)),[1]and admitted the truth of the allegation that he personally inflicted great bodily injury upon the victim ( 12022.7, subd. (a)). The court denied probation and sentenced defendant to the low term of two years for the conviction on the assault, plus a consecutive term of three years on the enhancement. On appeal, defendant contends that: 1) his plea was not voluntary, intelligent, and knowing, since the court failed to tell him there was a statutory presumption against granting him probation, but instead represented that there were no legal restrictions on probation being granted; 2) the court failed to abide by the terms of the negotiated plea agreement; and 3) he was not statutorily ineligible for probation. Court affirm.

Defendant Rogelio Fuentes was charged with first degree burglary (Pen. Code, 459), robbery (Pen. Code, 211), and the first degree murder of 16-year-old Miguel Hernandez (Pen. Code, 187, subd. (a)). A jury found defendant guilty on all three counts. The jury also found defendant had used a dangerous and deadly weapon, a knife, in the commission of the murder (Pen. Code, 12022, subd. (b)(1)) and that the murder was committed during the course of the robbery and burglary (Pen. Code, 190.2, subd. (a)(17)(A) & (G)). Defendant was sentenced to an aggregate term of life without the possibility of parole plus one year. Lastly, defendant contends the trial court erroneously allowed the prosecutor to introduce evidence of his illegal methamphetamine use to show he had a motive to commit the crimes. He maintains the evidence was both irrelevant and unduly prejudicial. Court conclude that the evidence was properly admitted.

After a bench trial, a trial court found defendant and appellant Gilbert Davidson guilty of first degree residential burglary. (Pen. Code, 459.)[1] The court further found true the allegation that defendant had two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he was sane at the time of the commission of the crime. The court sentenced defendant to a total indeterminate term of 25 years to life in state prison. On appeal, defendant contends that his conviction should be reversed because he did not expressly waive his right to a jury trial, and nothing in the record demonstrates a knowing, intelligent, or voluntary waiver. Court disagree and affirm.

Defendant Ramon Cantu was found guilty of first degree murder in the death of Albert Casey. (Pen. Code, 187, subd. (a).)[1] The jury also found that he used a deadly weapon, a metal file, in the commission of the offense. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) Defendant was sentenced to an indeterminate term of 25 years to life in prison, plus a one year determinate term for the enhancement. Defendant appeals, contending the evidence was insufficient to support a verdict of first degree murder. He also argues that the trial court erred in instructing the jury that it had to find him not guilty of first degree murder before it could find him guilty of second degree murder. Finally, he argues that the trial judge erred in admitting a report from a state forensic laboratory through the testimony of a supervisor rather than the person who actually prepared the report.

The Cahuilla Band of Indians (Cahuilla) appeals from a judgment entered in favor of Mary DiCara (DiCara), doing business as Scott Leasing Company, after the trial court granted DiCaras petition to confirm an arbitration award and denied Cahuillas petition to vacate the award. The principal issue presented is whether equitable considerations such as unjust enrichment may properly be applied to enforce a seemingly illegal contract to lease video gaming devices for use in an Indian reservation casino. After conducting an independent review, Court conclude, as did the trial court, that enforcement is appropriate under the circumstances of this case.

Defendant and appellant Raul H. (minor) admitted as true the allegations in a Welfare and Institutions Code[1]section 602 petition that charged him with three misdemeanor counts of taking a vehicle without the consent of the owner. (Veh. Code, 10851, subd. (a).) The juvenile court found that he came within section 602, adjudged him a ward of the court, and placed him on probation. On appeal, minor contends that 1) the juvenile court erred in denying his section 700.1 motion to suppress evidence, and 2) the $200 fine imposed by the court must be stricken. The People concede and we agree that the matter should be remanded for the limited purpose of clarifying the fine(s) that should be imposed against minor. Otherwise, Court affirm.

Defendant pled guilty to child abuse (Pen. Code, 273d, subd. (a)),[1]child endangerment ( 273a, subd. (a)), resisting a police officer ( 69), the last while released on his own recognizance on a earlier case ( 12022.1), spousal battery ( 243, subd. (e)(1)), battery ( 242), and possession of marijuana (Health & Saf. Code, 11357, subd. (b)). He also admitted having suffered two prior convictions for which he served prison terms ( 667.5, subd. (b)) and a strike prior. ( 667, subds. (c) & (e)(1)). He was sentenced to prison for 10 years. Defendants request for a certificate of probable cause was denied by the trial court. Defendants conviction and enhancements are affirmed.

A jury found defendant guilty of attempted first degree murder (Pen. Code, 664, 187, subd. (a))[1](count 1); assault with a deadly weapon likely to produce great bodily injury ( 245, subd. (a)(1)) (count 2); and first degree burglary ( 459) (count 3). The jury also found true that defendant had personally used a weapon and inflicted great bodily injury in the commission of the attempted murder. ( 12022.7, subd. (a), 12022, subd. (b)(1).) The trial court subsequently found true that defendant had sustained two prior prison terms ( 667.5, subd. (b)) and two prior serious felony convictions ( 667, subd. (a)). Defendant was sentenced to a total term of 33 years to life in state prison as follows: eight years for the burglary (count 3), 14 years to life for the attempted murder (count 1), three years for the enhancement for great bodily injury, one year for the weapon enhancement, two 1-year terms for the prison priors, and five years for the prior serious felony. Sentence on count 2 was stayed pursuant to section 654. On appeal, defendant contends (1) the abstract of judgment should be corrected to reflect that the court imposed a sentence of five years pursuant to section 667, subdivision (a), rather than section 667.5, subdivision (b); (2) there was insufficient evidence to support his conviction for attempted murder; and (3) the sentence imposed on count 3 should have been stayed pursuant to section 654. We agree with the parties that the abstract of judgment must be modified and that defendants sentence on count 3 must be stayed. However, Court reject defendants remaining contention and affirm the judgment.

Pursuant to a plea agreement, defendant pled guilty to possession of methamphetamine for sale. (Health & Saf. Code, 11378.) In return, the remaining allegations were dismissed, and defendant was sentenced to formal probation on various terms and conditions. Defendants sole contention on appeal is that probation condition No. 11, that she not associate with any unrelated person on probation or parole, is unconstitutionally vague and overbroad. Court agree with the parties that the term must be modified to include a knowledge requirement; however, we reject defendants remaining contention that the word associate is vague.

Defendant Steven John Olson was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated low term of years, concurrent with any other term. Defendant filed a postjudgment motion which has been treated as an appeal. Defendant has filed a supplemental brief in propria personato which he has appended an unfiled petition for writ of habeas corpus.

A.D. (Mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26[1]as to her nine year old daughter, Angelina V., and her 22 month old daughter, K.M.[2] Mother contends (1) the juvenile court erred when it summarily denied her section 388 petition; and (2) the juvenile court erred in failing to apply the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). Court reject these contentions and affirm the judgment.