CA Unpub Decisions

A jury convicted George Munoz (appellant) of numerous offenses arising out of a 2002 incident in which he and a companion, armed, went to the house of an acquaintance and over the course of several hours, forced several inhabitants to do various things against their will. The convictions include four counts of oral copulation by acting in concert (Pen. Code,[1] 288a, subd. (d); counts 1-4); three counts of assault with an assault weapon, in violation of section 245, subdivision (a)(3) (counts 5-7); residential burglary of an inhabited dwelling house, with intent to commit a felony ( 459, 460; count 8); and three counts of first degree robbery in violation of sections 211 and 212.5, subdivision (a) (counts 9-11). In addition, appellant was convicted of count 12, unlawful taking or driving of a vehicle, in violation of Vehicle Code section 10851, subdivision (a); count 13, possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1); and count 14, receiving stolen property, in violation of section 496, subdivision (a). Court have examined the arguments and the record and affirm the convictions and the judgment, as modified to strike the prison priors only, with directions to the trial court to prepare an amended abstract of judgment and submit it to the Department of Corrections; in all other respects, the judgment is affirmed.

Jorge Perez Belman pleaded guilty to possession of a short-barreled shotgun and was sentenced to probation, subject to certain gang-related and other conditions. He appeals, contending that (1) the court violated his due process rights by imposing the gang-related probation conditions without first holding an evidentiary hearing, (2) it abused its discretion in relying on hearsay evidence from the probation report as the basis for imposing such conditions, and (3) four of the imposed gang-related conditions were unconstitutionally overbroad and vague. The Attorney General concedes that three of the gang-related conditions must be modified to preclude only knowing behavior and we modify the order to so provide. In all other respects, Court affirm the order.

A jury convicted Gerry L. Mansfield of sale and possession for sale of methamphetamine. (Health & Saf. Code, 11379, subd. (a) & 11378.) Mansfield was sentenced to the lower term of two years for the sale of methamphetamine. Mansfield appeals contending the court erred in excusing a juror during deliberations and in denying his motion to disclose personal identifying information regarding the members of the jury. Court reject both contentions and affirm the judgment.

Kenneth James Adams appeals a judgment entered after the court revoked his probation, sentenced him to six years in prison and imposed restitution and parole restitution fines of $1,200 each. He contends that the trial court (1) erred in revoking his probation because the prosecutor failed to comply with the requirements of the Substance Abuse and Crime Prevention Act of 2000 (the Act, which was adopted by the voters as Prop. 36, & codified in Pen. Code, 1210, 1210.1, 3063, & Health & Safety Code, 11999.4); (2) violated his plea agreement by imposing a greater prison term than the agreement specified; (3) abused its discretion in sentencing him to six years in prison rather than reinstating his probation; and (4) improperly imposed the probation and parole revocation fines after having imposed similar fines of $200 each at the time of his plea. As the Attorney General concedes, Adams's final argument is well taken and Court modify the judgment to reflect the imposition of two $200 fines. Court find his remaining arguments unavailing and thus affirm the judgment as so modified.

A jury convicted Keith Nowling of transportation of cocaine base not for personal use (Health & Saf. Code, 11352, subd. (a); Pen. Code, 1210, subd. (a)), possession of cocaine base for sale (Health & Saf. Code, 11351.5), transportation of more than 28.5 grams of marijuana (id., 11360, subd. (a)), possession of marijuana for sale (id., 11359) and possession of methamphetamine (id., 11377, subd. (a)). The jury acquitted Nowling of transporting or possessing ecstasy (id., 11379, subd. (a), 11377, subd. (a)) and unlawfully possessing ammunition (Pen. Code, 12316, subd. (b)(1)). Nowling admitted having a prior conviction for selling cocaine base (Health & Saf. Code, 11352, subd. (a)) within the meaning of Health and Safety Code, sections 11370, subdivision (a) and 11370.2, subdivision (a). The court sentenced Nowling to a prison term of seven years. Nowling contends his convictions must be reversed because the trial court erroneously allowed an expert witness to testify about the details of Nowling's previous sale of drugs. Court affirm the judgment.

Brandon James Jenkins entered a negotiated guilty plea to burglary (Pen. Code, 459) and admitted he had a prior serious/violent felony or strike conviction (Pen. Code, 667, subds. (b)-(i)). The plea bargain called for a stipulated sentence of four years and the dismissal of four other felony counts, two misdemeanor counts and an allegation that Jenkins had served a prior prison term. Jenkins was sentenced in accordance with the plea bargain. Jenkins did not obtain a certificate of probable cause. The judgment is affirmed.

Ricky L. appeals orders denying his petition under Welfare and Institutions Code sections 385/388[1]and terminating his parental rights to his son, Ricky L. (R.L.). He contends the court abused its discretion by denying his petition and erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply. Court affirm the orders.

Defendant Terry Carr appeals his indeterminate prison sentence of 28 years to life as cruel and unusual punishment in violation of the state and federal Constitutions. Court affirm.

Defendant Richard David Valencia appeals seeking a reduction of the upper term sentence imposed on one of two counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). He argues the trial court violated the Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), when it imposed the upper term based on prior convictions and parole violations. The judgment is affirmed.

Claude Cooper brought this action against five defendants: physicians Steven A. Stanten and Arthur Stanten, and First Surgical Consultants, Inc. (together the Stanten defendants), and physician Chi Lee and Berkeley Urological Associates Medical Group, Inc. (together the Lee defendants). The action was for medical malpractice and constructive fraud relating to diagnosis and treatment Cooper had undergone. Cooper appeals a judgment of dismissal and a judgment of costs issued after the court sustained, without leave to amend, demurrers to his third amended complaint. Court affirm the judgment.

Appellants Eric W. Lien (Lien) and Pi-Ching Yen (Yen) (collectively, Lien/Yen) appeal from the trial courts April 5, 2006 order determining prevailing party status and awarding attorney fees and costs. The court designated respondents[1](collectively, Woo) as the prevailing party in the underlying contract dispute, and awarded Woo $440,000 in attorney fees and $13,224.22 in costs. Lien/Yen contend that the court erred by (1) concluding that this courts decisions in prior appeals in this matter limited the litigation proceedings the court could consider in determining the prevailing party, and (2) separating the litigation into two phases and determining a prevailing party for each phase. Court agree with Lien/Yens contentions, and reverse and remand to the trial court to determine the prevailing party, if any, based on the final results of the litigation as a whole and to award appropriate attorney fees.

Plaintiffs brought this action against Milgard Manufacturing Incorporated, Milgard Tempering Incorporated, and Milgard Family Limited Partnership (collectively Milgard). According to the complaint, plaintiffs owned mass-produced single family homes in the Pheasant Run subdivision in Dixon, and Milgard supplied and delivered windows that were installed in those houses. The complaint alleged that the windows were inherently defective. Plaintiffs sought to bring the action on their own behalf and on behalf of all California homeowners into whose homes defendants window products had been installed. The complaint alleged causes of action for strict products liability, breach of the implied warranties of fitness and merchantability, breach of express warranty, negligence, and violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, 1750 et seq.).
Plaintiffs moved for an order certifying a class of California property owners whose buildings had one or more of certain models of Milgard aluminum single-hung windows and aluminum horizontal sliding windows.

Appellant Tracy Conrad Smith challenges the evidentiary sufficiency of his robbery conviction and asserts the trial court should have instructed on the lesser included offenses to that crime. Notwithstanding appellants assertions to the contrary, there was substantial evidence that (1) the robbery victim had constructive possession of the property taken; and (2) under longstanding precedent recently confirmed by our Supreme Court, the property was taken from the immediate presence of the victim. Further, the court did not err in refusing to instruct on lesser included offenses. Accordingly, Court affirm the judgment.

Hans R. appeals from a disposition entered after the juvenile court found true allegations that his children Rory and N. were dependent children within the meaning of Welfare and Institutions Code section 300.[1] He contends the disposition must be reversed because (1) the juvenile court erred when it proceeded with the jurisdictional and dispositional hearings even though the childrens maternal grandmother would not return them from Russia, (2) the court abused its discretion when it placed the children with their grandmother at disposition, and (3) the court erroneously denied him visitation rights. Court conclude the court did not commit any prejudicial errors and will affirm.