CA Unpub Decisions

Plaintiff Brian Smith appeals from an order granting summary judgment and directing entry of summary judgment in favor of defendant Steve Dunham. Smiths complaint sought damages for breach of contract, dissolution of the parties alleged joint venture agreement, and declaratory relief. The trial court entered summary judgment in favor of Dunham upon a finding that plaintiffs claims were barred by the statute of limitations. Plaintiff argues there were triable issues of fact as to when he actually discovered that Dunham would not honor the parties alleged agreement. Court conclude that the statute of limitations began to run when Smith became aware of facts that would make a reasonably prudent person suspicious. Smiths testimony that at least as early as 2002 he knew that Dunham was using money earned as a result of the alleged joint venture on another project is susceptible of only one legitimate inference that he knew or should have known of the breach at that time. Since his complaint was not filed until July 2005, the two-year statute of limitations had expired. Court affirm the judgment.

C.C. (appellant), the mother of two-year-old J.T. (the minor), appeals from a juvenile court order terminating parental rights. (Welf. & Inst. Code, 366.26, 395; further section references are to the Welfare and Institutions Code unless otherwise specified.) She contends (1) the court erred by appointing a guardian ad litem for her, and (2) relevant Indian tribes were not adequately notified of the proceedings pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the order.

Defendant Victoriano Gauna pled no contest to possession of methamphetamine for sale and appeals the trial courts denial of his motion to suppress evidence. He contends the trial court erred when it admitted evidence that was the product of an invalid consent search. Court disagree and affirm.

Defendant Leah Burns was charged with 27 counts of theft-related offenses, including second degree burglaries, passing counterfeit checks, and felony petty theft. It was further alleged that she had served two prior prison terms.
Defendant entered negotiated pleas of guilty to four counts of felony petty theft (petty theft committed by a person who has previously been convicted of a theft-related offense), admitted having served a prior prison term, and agreed that she would be sentenced to a term of six years in state prison and that the other charges against her would be dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754).
The judgment is affirmed.

Plaintiff E. Miles Harvey appeals the judgment under Code of Civil Procedure section 437c for defendants (1) The Landing Homeowners Association, a California nonprofit mutual benefit corporation (LHA), (2) certain members of the board of directors (Board) of LHA, and (3) various residents of The Landing residing on the fourth floor of the condominium development (collectively defendants). Harvey contends the trial court erred when it granted summary judgment for defendants because: (a) the Board acted outside the scope of its authority when it determined fourth floor homeowners could exclusively use up to 120 square feet of inaccessible common area attic space, appurtenant to their units, for rough storage; (b) the Board lacked the power to make a material change in the restated declaration of restrictions (CC&R's) for The Landing by allowing fourth floor homeowners to use the attic space common area for storage; and (c) the various resolutions passed by the Board, permitting use of that space for storage, were invalid because the Board vote lacked a disinterested majority.
We conclude the Board acted within its authority under the CC&R's, and the undisputed evidence shows it properly exercised its discretion when it determined fourth floor homeowners could use up to 120 square feet of inaccessible attic space common area for storage. Court further conclude the actions of the Board were not invalid because directors who owned units on the fourth floor of the project voted in favor of allowing limited exclusive use of the attic space common area. Court therefore affirm the judgment.

Plaintiffs, Millbrae Serra Sanitarium, Inc., doing business as Millbrae Serra Convalescent Hospital, and 17 other nursing facilities that provide services to Medi-Cal patients,[1]appeal a judgment entered after the court sustained without leave to amend the demurrer of defendants, State of California, the Department of Health Services, and its director, Sandra Shewry (collectively the Department). Plaintiffs contend their second amended complaint stated causes of action for breach of contract and promissory estoppel, based on the Department's failure to reimburse them for increased wages they paid their employees in reliance on former section 14110.65 of the Welfare and Institutions Code. Court affirm the judgment.

Willie Edward Bennett pleaded guilty in three separate court cases to three counts of possession of cocaine base for sale (Health & Saf. Code, 11351.5), sale or transportation of cocaine not for personal use (id., 11352, subd. (a), Pen. Code, 1210, subd. (a)), possession of cocaine (Health & Saf. Code, 11350, subd. (a)), resisting an officer (Pen. Code, 148, subd. (a)(1)) and possession of a firearm by a felon (id., 12021, subd. (a)(1)). He admitted he was on bail when he committed the offenses (id., 12022.1, subd. (b)), possessed a firearm during the commission of an offense (id., 12022, subd. (c)), had a prior narcotics conviction (Health & Saf. Code, 11370.2) and had two prior strike convictions (Pen. Code, 667, subds. (b)-(i), 1170.12, 668). He was sentenced to a total prison term of 12 years.
The judgment is affirmed.

On appeal, Greg and S.W. assert the court erred in terminating their parental rights because (1) there is no substantial evidence to support the court's adoptability finding; and (2) the court failed to apply the sibling relationship exception. Subsequent to the filing of the appeal, appellate counsel for the minors (minors' counsel) asserted the viability of the "joint adoption" by the children's caregivers was in doubt. This court has been informed on appeal that the children's caregivers, Vera V., and her adult daughter, Juana P., seek to jointly adopt the children. Minors' counsel also filed a motion asking this court to take additional evidence on this issue, which Court ordered considered with the appeal. Court conclude the order terminating parental rights must be reversed because the finding of adoptability was not supported by substantial evidence. The assessment report prepared by the San Diego County Health and Human Services Agency (Agency) for the children was inadequate and failed to consider (a) whether Juana was qualified to adopt them, and (b) whether there was a legal impediment to a joint adoption by Vera and Juana. The report also inadequately assessed Gregory's medical condition. Court deny the motion to take additional evidence on appeal. We direct the court on remand to order the Agency to complete an assessment that is in compliance with section 366.21, subdivision (i), and that addresses the deficiencies in the original assessment report identified in this opinion. Court also direct the court to hold a new hearing under section 366.26 to select and implement a permanent plan for the children.

Damon Michael Carter entered a negotiated guilty plea to receiving stolen property (Pen. Code, 496, subd. (a)) while out of custody on bail (Pen. Code, 12022.1, subd. (b)). The court imposed a stipulated five-year prison term (the three-year upper term for receiving stolen property and two years for the enhancement), to be served consecutively to his sentence in another case. Carter appeals. Court affirm.

Jose A. Hernandez entered a negotiated guilty plea to possessing marijuana for sale (Health & Saf. Code, 11359) and admitted a prior strike conviction allegation (Pen. Code, 667, subds. (b)-(i), 1170.12, 668). The court sentenced him to prison for a stipulated term of 32 months (twice the lower term). Hernandez appeals. Court affirm.

In 1983, Larry Crafts was shot and killed just after locking up the Burger King where he was assistant manager. Although the police suspected that the shooting had occurred in the course of an attempted robbery, it did not appear that any property had been taken. The crime remained unsolved until 2005, when defendant Kenneth Duran Horne walked into a police station in Chattanooga, Tennessee, and, to ease his conscience, confessed. Presumably in consideration of defendants confession, the prosecution elected not to seek the death penalty. However, a jury found defendant guilty of first degree murder (Pen. Code, 187, subd. (a), 189), with a robbery-murder special circumstance (Pen. Code, 190.2, subd. (17)(A)) and a personal firearm use enhancement (Pen. Code, 12022.5, subd. (a)). In a bifurcated proceeding, defendant admitted two 5-year prior serious felony enhancements. (Pen. Code, 667, subd. (a).) As a result, defendant was sentenced to a determinate term of 12 years and an indeterminate term life without the possibility of parole. Reversal is necessary in that the court misinstructed the jury on a key element.

A jury found defendant guilty of four counts of assault with a firearm (counts 1, 2, 4 & 6). (Pen. Code, 245, subd. (a)(2).)[1] As to all four counts, the jury found true the allegations that defendant personally used a firearm during the commission of the assaults. ( 12022.5, subd. (a).) The jury also found defendant guilty of one count of burglary (count 7). ( 459.) The court sentenced defendant to state prison for a term of 26 years four months. Defendant makes five contentions: (1) the trial court erred by not instructing the jury on the offense of exhibiting a firearm, because it is a lesser included offense of assault with a firearm; (2) the trial court erred by not instructing the jury on defense of real or personal property; (3) the trial court erred by not instructing the jury on self-defense; (4) the trial court abused its discretion by denying defendants motion for self-representation; and (5) defendant was denied his constitutional rights to a jury trial and to proof beyond a reasonable doubt when the court found facts justifying the imposition of the upper prison terms. Court affirm the judgment.

A jury found appellant and defendant Jose Manuel Castro guilty of two counts of burglary (Pen. Code, 459, counts 1 & 3),[1]and two counts of committing a lewd act upon a child under 14 years old. ( 288, subd. (a), counts 2 & 4.) The jury also found true the enhancement allegations that, as to counts 2 and 4, defendant was a stranger to the child ( 1203.066, subd. (a)(3)), and he engaged in substantial sexual conduct with the child. ( 1203.066, subd. (a)(8).) In addition, as to count 4, the jury found true the allegation that defendant entered an inhabited dwelling with the intent to commit a violent sexual offense specified in section 667.61, subdivision (c), within the meaning of section 667.61, subdivision (d)(4). However, as to count 2, the jury found this same allegation not true, but did find true the allegation that defendant committed a violent sex offense during the commission of a burglary, within the meaning of section 667.61, subdivision (e)(2). The trial court sentenced defendant to state prison for 25 years to life on count 4 and a consecutive term of 15 years to life on count 2. The court stayed the sentences on the remaining counts under section 654. On appeal, defendant contends that: 1) there was insufficient evidence to support the burglary conviction in count 1; and 2) the minute order should be corrected to reflect that, as to count 2, the jury found not true the allegation that he entered the house with the intent to commit a violent sex offense. The People correctly concede that the minute order should be amended. Otherwise, Court affirm.

A jury found defendant guilty of one count of making criminal threats (Pen. Code, 422)[1](count 1); one count of elder abuse ( 368, subd. (b)(1)) (count 2); two counts of assault with a deadly weapon ( 245, subd. (a)(1)) (counts 3 & 4); and five counts of making criminal threats to a witness ( 140, subd. (a)) (counts 5-9). The trial court subsequently found true that defendant had sustained three prior prison terms ( 667.5, subd. (b)). Defendant was sentenced to a total term of 14 years in state prison as follows: the upper term of four years on count 3, plus consecutive one-year terms on counts 2 and 4 through 9, and a consecutive one-year term for each of the three prison priors. The court stayed the two-year term on count 1. On appeal, defendant contends (1) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1; (2) all but one of the sentences imposed on counts 5 through 9 should have been stayed pursuant to section 654; and (3) the trial court erred in failing to instruct the jury with the offense of simple assault as a lesser included offense of assault with a deadly weapon. Court reject these contentions and affirm the judgment.