CA Unpub Decisions

Plaintiff Violet Realty, Inc. (Violet) filed suit against the County of Riverside (the County) and Chicago Title, seeking to set aside a nonjudicial foreclosure sale of Violets 10-acre property in Romoland. The sale was conducted pursuant to a trust deed securing a note in the principal sum of $500,000, which Violet originally executed in favor of the County in 1990. Chicago Title acted as trustee and conducted the sale. In May 2002, the County took title to the property pursuant to the trustees deed. Court affirm. Corut conclude there are no triable issues of material fact and the FAC is indeed barred by the doctrine of res judicata. Our conclusion is based on the allegations of Violets current FAC, the allegations of its prior complaint against the County in the 1992 action, and the dismissal of that action, with prejudice. Court further conclude that Violets motion to file a second amended complaint was properly denied.

The passenger in a green Honda robbed two sisters at gunpoint. Later, defendant was found in possession of some of the loot from the robbery (along with other stolen property and some methamphetamine) and was arrested. The owner of the Honda was with him at the time, but he was not arrested. One of the sisters had given a description of the robber that sounded more like the Honda owner than defendant. Nevertheless, in a photo lineup, she identified defendant, not the Honda owner, as the robber. In an informal lineup before the preliminary hearing, she identified defendant again. Finally, at trial, both sisters identified defendant as the robber yet again.
Court therefore conclude that Judge Haight did not err by requiring the jury to deliberate further.

Tamir Mekahel, an individual doing business as M.T.K. (MTK or Mr. Mekahel), entered into a subcontract with J. Murrey Construction, Inc. (Murrey), a general contractor, to install ceramic tile at a high school and five elementary schools in the Fontana Unified School District (FUSD). MTK sued Murrey, its alleged payment bond surety, Great American Insurance Company (Great American), and its alleged performance bond surety, Safeco Insurance Company of America (Safeco), seeking $494,493.27 for extra work MTK claims was not included within the scope of work described in the project documents. Following a five-day bench trial, the court issued a statement of decision finding that MTK failed to prove its claims against any of the defendants and entered judgment in favor of defendants.
Court therefore affirm the judgment.

Father Patrick P. appeals the denial of his petition to modify the prior order denying reunification services. Both Patrick P. and mother, F.G., appeal from the judgment terminating their parental rights to the children, freeing them for adoption. Mother did not join in fathers petition for modification in the trial court, although she joins his brief on appeal. Finding no errors, Court affirm.

On March 23, 2007, defendant and appellant Bobby Lewis Moore pleaded guilty to leaving the scene of an accident that caused injury to another person under Vehicle Code section 20001, subdivision (a), under the terms of a negotiated plea agreement. The plea agreement included a stipulated sentence of three years in state prison, to run concurrent to two other felony sentences. It also included a Cunningham waiver of defendants right to have the jury find circumstances in aggravation to support the upper term. (Cunningham v. California (2007) 549 U.S. 270.) Moreover, under the terms of the plea agreement, an allegation that defendant committed the offense while on probation was to be dismissed.
On August 20, 2007, defendant personally filed a timely notice of appeal challenging the sentence and the validity of the plea in the current case only. His notice of appeal, however, did not designate the probation revocation cases in which he was sentenced to state prison concurrently. In his request for certificate of probable cause, defendant alleged that he was denied effective assistance of counsel and due process because his rights and acknowledgements [sic] were not waive[d] or read to [him] per [R]ules of [C]ourt. On August 24, 2007, the trial court issued a certificate of probable cause.

On August 31, 2006, the Tulare County District Attorneys office, at the request of the Valley Mountain Regional Center, filed a Welfare and Institutions Code section 6500 petition requesting an order extending the commitment of appellant Scott James Carter to the State Department of Developmental Services because he is mentally retarded and a danger to himself and others. On April 6, 2007, jury trial commenced. On April 10, 2007, the jury found the petition to be true. The order for a one-year commitment was filed on April 17, 2007. Appellant filed a timely notice of appeal. Appellant contends the jury was improperly instructed on the burden of proof. Court disagree and will affirm.

Appellant Isidro Anthony Anaya pled no contest to felony vandalism (Pen. Code, 594, subd. (a))[1]. The court imposed a two-year midterm prison sentence and ordered appellant to pay $13,000.14 to the victim as restitution. On appeal, appellants sole contention is that the amount of restitution ordered exceeded the replacement value of the damaged items, and therefore the court, in ordering restitution in that amount, abused its discretion. Court affirm.

Following his conviction and sentencing for residential burglary, petitioner Joseph Garcia conferred with his trial counsel, Kirt Hopson, to discuss his appellate rights. Petitioner asked, and counsel agreed, to file a notice of appeal. Unfortunately, the notice of appeal was served by counsel on the court reporter and not the superior court clerk. When counsel realized his error, the time within which to file a timely notice of appeal had expired by about two weeks. A petition for relief for failure to file a timely notice of appeal has been filed. (In re Benoit (1973) 10 Cal.3d 72.) The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.

A jury convicted defendant Dana Clark Anderson of lewd or lascivious act upon a child age 14 or 15. On appeal, defendant contends that the trial court erred by instructing the jury with CALCRIM No. 358 (extrajudicial statements by a defendant). Court disagree and affirm the judgment.

Defendant Wayne Eliot Jackson appeals following his convictions for attempted murder and possession of a firearm by a felon. He contends the trial court erred in giving certain jury instructions, in imposing a probation investigation fee, and in imposing a prison term for a great bodily injury enhancement. Court modify the judgment to strike the enhancement and otherwise affirm.

On September 27, 2006, a jury found defendant Ronnie August Johnson to be a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,[1] 6600 et seq.). The trial court committed defendant for an indeterminate term, pursuant to an amendment to section 6604 that became effective six days earlier, on September 20, 2006. ( 6604; see Stats. 2006, ch. 337, 55, 62.) Defendant contends the court committed prejudicial error by admitting unreliable hearsay evidence. He also challenges his commitment to an indeterminate term on the ground that applying the new law violated his due process right to notice of the consequences he was facing if found to be an SVP and other provisions of the federal and state Constitutions. Court affirm the order of commitment.

Defendant Randall Harris Woods appeals a judgment entered upon a jury verdict finding him guilty of transporting marijuana. (Health & Saf. Code, 11360, subd. (a).) He contends the trial court erroneously instructed the jury on the transportation of marijuana intended for his medical use and that his counsel rendered ineffective assistance. Court affirm.

A jury convicted appellant Martin Anthony Campbell of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). In connection with that count, it also found true an enhancement of personal infliction of great bodily injury ( 12022.7, subd. (a)). However, it found him not guilty of battery with serious bodily injury ( 243, subd. (d)). The trial court suspended imposition of sentence and granted formal probation for a period of three years, which included various conditions, including that appellant serve a 90-day county jail term. Appellant appeals, contending the trial court prejudicially erred by failing to instruct the jury with CALCRIM No. 240 (Causation). He also contends the court committed reversible error when it instructed the jury with CALCRIM No. 359 (Corpus Delicti) and CALCRIM No. 362 (Consciousness of Guilt). Court affirm.

A jury convicted defendant Lenard Andrus of first degree burglary. Determining that defendant had suffered a prior strike conviction and served a prior prison term, the trial court sentenced defendant to an aggregate state prison term of 17 years. Seeking to preserve certain federal claims, defendant contends that (1) his conviction should be reversed because the trial court erroneously granted his motion to represent himself at trial under Faretta v. California (1975) 422 U.S. 806 (Faretta), and (2) the trial court erred in sentencing him to the upper term sentence of six years for his offense. Court affirm.