CA Unpub Decisions

Richard David Welsh, Jr., entered a negotiated guilty plea to residential burglary (Pen. Code,[1] 459/460) and admitted that another personnot an accomplicewas present during the burglary within the meaning of section 667.5, subdivision (c)(21). Welsh also admitted that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Under the plea bargain, the prosecution agreed to dismiss charges of petty theft with a prior count ( 484/666) and being under the influence of methamphetamine count (Health & Saf. Code, 11550, subd. (a)). The parties stipulated to a three-year prison sentence. The trial court denied Welsh's Marsden (People v. Marsden (1970) 2 Cal.3d 118) motion and sentenced Welsh to three years in prison in accordance with the plea bargain.

Jose H. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error. The appeal is dismissed.

Defendant was charged with 19 counts of sexual offenses against the victim, Jane Doe, a 14-year-old girl.[2] The court dismissed count 19. As invited by the prosecutor, the jury acquitted defendant of count 10 and convicted him of the other 17 counts. The court sentenced defendant to 13 years in prison. Court conclude there was no prejudicial error and, in view of the strength of the prosecutions evidence, Court affirm the judgment.

Defendant appeals from the convictions and sentence relating to 12 counts of lewd acts committed on two different minors. (Pen. Code, 288, subd. (a).) He contends: (1) the generic testimony of one of the victims violated his due process right to notice of the charges against him, and (2) the 30 year to life sentence constitutes cruel and unusual punishment. Court affirm.

Defendant and appellant Ricky Lee Gaustad was convicted of, among other things, robbery and dissuading a witness by force. During the sentencing hearing, the trial court indicated that it was required to impose a consecutive sentence for the dissuading a witness by force conviction. On appeal, defendant contends, and the People concede, that the trial court failed to recognize that it had the discretion to impose a concurrent term. Court agree with the parties. Therefore, the sentence is reversed; in all other respects, judgment is affirmed. The trial court is directed to conduct a new sentencing hearing.

Appellant, Desman, Inc., challenges the trial courts finding that its complaint for specific performance and declaratory relief filed against respondents, City of San Joaquin and San Joaquin Development Agency, was barred by the statute of limitations. The court concluded that this complaint was subject to the Government Claims Act (GCA) and, accordingly, the shorter two-year statute of limitations applied. Appellant disagrees. According to appellant, the GCA does not apply because the complaint did not contain a claim for money or damages. Rather, the complaint sought specific performance of respondents promise to clear or assume appellants tax liens.
As discussed below, although couched in terms of specific performance, the complaint seeks money from respondents. If ordered to clear or assume appellants tax liability, respondents would, in effect, be making a payment of money to appellant. This procedure simply deletes one step in the process, i.e., appellant physically making its own tax payment. Therefore, appellants complaint is subject to the two-year GCA statute of limitations. Since appellants complaint was not filed within two years of the accrual of the cause of action, it is time barred. Accordingly, the trial court properly granted summary judgment in respondents favor.

This appeal arises out of a commercial contract dispute. In May 2000, Mid Prairie Products, Inc., and Mid Prairie Genetics, Inc.,[1]entered into a contract (Yosemite contract) with respondent Yosemite Meat & Locker Service, Inc. (Yosemite). Under the terms of the contract, Mid Prairie agreed to supply Yosemite with up to 450 high-quality roaster pigs per week for a period of five years. Yosemite entered into the agreement after determining that Mid Prairie had a superior genetic breeding stock and was capable of producing 100,000 baby pigs a year. Yosemite was looking for approximately 25,000 roaster pigs a year. Roaster pigs are sold whole, weigh between 70 to 100 pounds, and must be healthy with no signs of sickness or abnormalities. It was Yosemites intention that Mid Prairie would provide a steady source of healthy, good-quality roaster pigs to supply Yosemites market for whole pigs. Yosemite believed the pigs supplied under the Yosemite contract would be grown by Mid Prairie. In exchange, Yosemite paid Mid Prairie an interest-free access fee of $234,000 at the start of the contract for the purpose of further developing Mid Prairies herd and assuring a sufficient supply of roaster pigs. The access fee was to be repaid to Yosemite at a rate of $2 per pig delivered to Yosemite over the course of the five-year contract term. The parties agreed that the $2 repayment fee would be waived for the first 17,000 pigs. The judgment is affirmed.

Defendant Lisa Gay Davis was convicted, along with codefendant Mellon Moseley, of possessing methamphetamine for sale, maintaining a place for the sale or use of methamphetamine, and other charges. We agree with her claim that the trial court erred in excluding from evidence a statement Moseley made to a police officer during the trial. The error, however, was harmless. The excluded statement would have provided additional support to a defense Davis presented through other evidence. Yet it is not reasonably probable, under the circumstances of this case, that the added increment of support would have altered the outcome. Court reject Daviss claims that the evidence was insufficient to support the convictions, that there was prejudicial error in the jury instructions, and that her trial counsel rendered ineffective assistance when, at the close of the prosecutions case, she failed to join Moseleys motion for acquittal. Court affirm the judgment.

The court readjudged appellant, Gonzalo B., a ward of the court after it sustained two counts each of indecent exposure (counts 1 & 2/Pen. Code, 314, subd. (1)) and sexual battery (counts 4 & 5/Pen. Code, 243.4, subd. (e)(1)) and one count of violation of probation (count 7/Pen. Code, 1203.2, subd. (a)). The court also set Gonzalos maximum term of physical confinement at three years nine months.
On June 14, 2007, the court committed Gonzalo to the custody of the probation department pending placement with his mother. On appeal, Gonzalo contends the court erred by its failure to stay the term it imposed on one of his indecent exposure convictions and by using the term to calculate his maximum term of physical confinement. Court find this issue moot because Court conclude the court erred in sustaining count 2. In all other respects Court affirm.

A modification decision.

On April 19, 2007, defendant George Anthony Olmos pleaded no contest to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and admitted to the personal use of a knife in the assault (Pen. Code, 667, 1192.7).[1] Pursuant to a negotiated plea agreement, the trial court dismissed a great bodily injury enhancement ( 12022.7, subd. (a), 1203, subd. (e)(3)) and placed defendant on formal probation for three years. The trial court also ordered defendant to serve one year in county jail and imposed a number of fines and fees. On appeal, defendant objects to the order to pay $300 in attorneys fees pursuant to section 987.8. He also contends that the sentencing minute order does not accurately reflect the trial courts order relating to a probation supervision fee. We strike the attorneys fees award and direct the trial court to amend the minute order in regard to the probation supervision fee. The modified judgment is affirmed.

Defendant Dominique Wright was convicted of two counts of first degree murder (Pen. Code, 187)[1], and one count of first degree robbery ( 211 and 212.5, subd. (a)). The jury also found true (1) felony murder special circumstance as to the first count of murder ( 190.2, subd. (a)(17)), (2) a multiple murder special circumstance ( 190.2, subd. (a)(3)) as to the second count of murder, and (3) firearm enhancement allegations as to both counts ( 12022.53, subds. (b), (c), and (d)). Wright was sentenced to two consecutive life terms without possibility of parole for the two murders and two consecutive terms of 25 years to life for the gun enhancements. The court stayed sentences on the robbery and firearm enhancements under section 654. Court affirm the judgment, with the exception of the sentence on the robbery count, which the People concede must be reduced.

Appellant Eugene Darrell Rutledge (appellant) appeals from a judgment of conviction entered after a jury found him guilty of nine counts of second degree robbery (Pen. Code, 211)[1]and one count of attempted second degree robbery ( 211/664). Appellant argues the trial court erred in admitting and considering testimony and in-court identifications that were tainted by an impermissibly suggestive lineup.

Defendant Della Rene Sadler appeals the judgment of conviction and sentence imposed after a jury returned guilty verdicts on charges of felony first degree burglary, theft, and vandalism, and on misdemeanor charges of elder abuse and battery of an elder. Defendant contends the trial court should have instructed the jury sua sponte on the defense of accident with respect to the misdemeanor charge of elder abuse, and, in the alternative, that if the trial court had no such sua sponte duty then her counsel was ineffective for failing to request the instruction. Defendant also contends the trial court abused its discretion by imposing consecutive terms on the three vandalism counts. Court affirm.