CA Unpub Decisions

A jury convicted defendant of residential burglary (count 1Pen. Code, 459)[1]and assault with a deadly weapon (count 2 245, subd. (a)(1)), along with additional special allegations ( 667, 1192.7, subd. (c)(23)). At a bench trial thereafter, the court found true allegations that defendant had suffered three prior serious felony convictions. ( 667, subd. (a).) In addition to imposition of sentence on the substantive counts, special allegations, and other prior conviction allegations, the court sentenced defendant to three consecutive five-year terms on the section 667, subdivision (a) enhancements, for an aggregate term of 15 years plus 25 years to life. On appeal, defendant contends the court erred in imposing three 5-year terms, rather than merely one 5-year term, because the three prior convictions were not brought and tried separately. ( 667, subd. (a).) The People concede that one 5-year term must be stricken because it was not brought and tried separately from another conviction in the same case number for which sentence had already been enhanced; however, the People maintain that imposition of two separate five-year terms is appropriate because two of defendants prior convictions derived from separately brought and tried actions. Court agree with the People and, therefore, order one of the consecutive five-year terms imposed pursuant to section 667, subdivision (a) stricken. In all other respects the judgment is affirmed.

Appellant Dusty S. (father) appeals from the juvenile courts order terminating his parental rights to his son, D.S. (the child). Father argues that the order should be reversed because the Riverside County Department of Public Social Services (the department) failed to comply with requirements under the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Court disagree and affirm.

Following a jury trial, Jorge Francisco Fregoso was convicted of one count of premeditated murder (Pen. Code, 187, subd. (a))[1]and one count of kidnapping ( 207, subd. (a)). It was found true that both counts were committed for the benefit of a street gang ( 186.22, subd (b)(1)); that Fregoso was a principal in the offense and at least one principal personally discharged a firearm causing great bodily injury ( 12022.53, subds. (d) & (e)(1)); and that the murder was committed in the commission or attempted commission of a kidnapping ( 190.2, subd. (a)(17)(B)). The trial court sentenced Fregoso to an indeterminate term of life without the possibility of parole and a term of 25 years to life. On appeal, Fregoso claims: (1) Batson/Wheeler[2]error occurred; (2) the trial court erred in allowing the prosecution to reopen its case; (3) the prosecutor committed prejudicial misconduct; (4) the stop and subsequent search of the vehicle was unconstitutional; and (5) cumulative error occurred. Court find no prejudicial error and affirm.

Following a jury trial, Julian Garza was found guilty of one count of premeditated murder (Pen. Code, 187, subd. (a))[1]and one count of kidnapping ( 207, subd. (a)). The jury found true the allegations that the offenses were committed for the benefit of a street gang ( 186.22, subd (b)(1)), that Garza was a principal in the offense and at least one principal intentionally and personally discharged a firearm causing great bodily injury ( 12022.53, subds. (d) & (e)(1)), and that the murder was committed in the commission or attempted commission of a kidnapping ( 190.2, subd. (a)(17)(B)). The trial court sentenced Garza to an indeterminate term of life without the possibility of parole and a term of 25 years to life.
On appeal, Garza contends the trial court erred: (1) when it denied his Batson/Wheeler[2]motion; (2) when it denied the defenses request to impeach a prosecution witness with a crime of moral turpitude; (3) when it allowed the admission of a witnesss videotaped statement; and (4) when it instructed the jury with CALCRIM No. 318. Court reject his claims and affirm.

Defendants, Rebecca and Gerald Escalera, individually and as co-trustees of the Escalera Revocable Living Trust, and the Estate of Waldo M. Pike, appeal from a judgment against them, entered after a two phase court trial, in which the court invalidated two deeds to real property, confirmed ownership of the properties in plaintiffs, ordered partition by sale of another piece of real property, and awarded plaintiffs, James Russell Coker, Evangelina Coker, and the Waldo M. Pike McFarland Limited Partnership, a total of $253,570.22 for unpaid partnership profits. Court affirm.

Defendant filed an unverified coram nobis petition in the superior court. In his petition, he sought an order discharging him from the obligation to register as a sex offender. Relying on the California Supreme Courts decision in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), defendant asserted that his 1984 Penal Code section 288a, subdivision (b)(1) conviction could not serve as the basis for a mandatory registration requirement. The superior court summarily denied his petition. On appeal, although he concedes that he was not entitled to a writ of error coram nobis, defendant contends that the superior court erred in failing to treat his petition as one seeking a writ of mandate. We conclude that the superior court did not err in denying defendants petition because his petition did not allege the requisite facts that, if true, would have established his entitlement to mandamus relief. Court affirm the superior courts order.

In this appeal, plaintiff Susan R.,[1]guardian ad litem for her daughter Danielle, seeks review of an order denying her motion to vacate a judgment entered after judicial arbitration. Plaintiff contends that the superior court's refusal to set the judgment aside was error under the mandatory and discretionary relief provisions of Code of Civil Procedure section 473, subdivision (b). Court affirm the judgment.

Appellant Ronald Lee Canada challenges his conviction for assault with a firearm following two trials on multiple counts. Under the longstanding rule of Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett) and the plain language of Penal Code[1]section 654, ordinarily an acquittal bars a prosecutor from pursuing new charges in successive prosecutions based on the same acts and course of conduct. The questions framed by this appeal are whether a door for an amended information with new charges otherwise banned under Kellett and section 654 is nevertheless opened because (1) there was a mistrial on another count in the first trial and that count was properly subject to a second prosecution; and (2) the newly charged offense was submitted to the jury in the first trial under erroneous instructions that it was a lesser included offense of the acquitted crime (attempted murder), and the jury likewise failed to reach a verdict on that charge. We conclude that Kellett and section 654 precluded the subsequent prosecution for assault with a firearm and accordingly reverse the judgment as to that conviction only. The conviction for assault with a firearm is reversed. In other respects, the judgment is affirmed.

Mehdi and Fereshteh Mohammadian (the Mohammadians) appeal from a judgment entered after the trial court sustained Neff Rental, Inc.s (Neff) demurrer to their third amended complaint without leave to amend. The Mohammadians contend the trial court erred in ruling that the litigation privilege applied to Neffs act of recording a mechanics lien on their property. We conclude there was no error and affirm the judgment.

Milton Eaton pleaded no contest to a misdemeanor count of driving with a suspended license, and was convicted by jury of one count of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) and one count of receiving stolen property (Pen. Code, 496d). He contends that his due process rights were violated as a result of precomplaint delay, and delay after charges were filed but before defendant was notified, arraigned and provided with appointed counsel. Court shall conclude that defendant failed to demonstrate the delay resulted in any prejudice, and shall affirm the judgment.

Appellant, the former conservator of the Estate of Gladys McDaniel (Estate), appeals from an order of the San FranciscoProbate Court granting a petition filed by the attorney for the Estate removing him as its conservator. Finding no abuse of discretion by that court, Court affirm the order.

Michael M. (Father) and Tamara M. (Mother) are the parents of Timothy and Phillip. The two boys were detained after their parents were found to have provided an unsanitary home and poor supervision. The boys were subsequently found to have significant mental and emotional impairments attributable to parental neglect. The juvenile court entered an order removing the boys from the home, and we affirmed that order in a prior nonpublished decision. (In re Timothy M. (Nov. 20, 2007, A116214).)
During the following six months, the Alameda County Social Services Agency (Agency) arranged for individual counseling for the parents and conducted caregiver competence evaluations, in addition to providing the parents the deposit on a new apartment. At the six-month review hearing, the parents argued that the Agency had not provided them reasonable reunification services. The juvenile court disagreed and continued the boys in foster care. Court affirm.

Willie and Maggie Roberson filed a bad faith insurance action against Allstate Insurance Company and also sued several inspectors and contractors who were involved in the repair of their home after a fire. Allstate filed a petition to compel appraisal of the amount of the Robersons loss. The trial court granted the petition but indefinitely stayed the appraisal and denied a stay of the court action. Court affirm.

Pursuant to People v. Wende(1979) 25 Cal.3d 436, appellant appeals from the sentences imposed in three separate cases in which he had entered pleas of no contest consistent with a plea agreement negotiated with the prosecution. The trial court granted his request for a certificate of probable cause to contest the validity of his pleas, but appellant never filed a motion seeking to withdraw any of his pleas. Court affirm the judgments rendered and sentences imposed in all three cases.