CA Unpub Decisions

Joseph Leno Sabala was convicted of committing numerous sex crimes against his daughters L. and N. He contends: 1) The court erred in admitting evidence of uncharged sex crimes; 2) there is insufficient evidence to support one of his convictions; and 3) the prosecution of the crimes involving L. was time barred. Court reject these contentions and affirm the judgment.

Defendant Lawrence D. Stern appeals the trial courts orders (a) denying his motion to enforce a settlement agreement, and (b) releasing funds Stern deposited with the court to satisfy a judgment entered in this case (OC Judgment) on the settlement agreement. Stern contends the settlement agreement required plaintiff Robert L. Jones to assign Stern a judgment Jones obtained in another case brought in Los Angeles County (LA Judgment) once Stern satisfied the OC Judgment. Jones, however, contends the settlement agreement required him to assign the LA Judgment only if Stern made specified payments in a timely manner. Because Stern failed to make timely payment, Jones asserts Sterns full satisfaction of the judgment did not entitle him to assignment of the LA Judgment. Jones also argues the trial court had no jurisdiction over the matter.
Court conclude the trial court properly denied Sterns motion to enforce settlement, but erred in releasing the deposited funds to Jones. Sterns payment of the OC Judgment after a third party fully satisfied the LA Judgment resulted in an improper double recovery for Jones. Court therefore reverse the trial courts order releasing the funds and remand with instructions the trial court order Jones to repay the funds improperly released, with interest at the legal rate.

David K. challenges the juvenile courts adjudication he possessed methamphetamine for sale. Relying on the so-called Kelly/Frye rule, he contends the court should have excluded evidence regarding a presumptive drug test because the prosecution failed to show the test has been proven to be scientifically reliable. (See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) However, because defense counsel never objected to the test evidence on this basis, the issue has been waived. Moreover, because there could be a rational explanation for counsels failure to invoke Kelly/Frye, Court reject Davids alternative claim he was denied effective representation. The judgment will stand.

The juvenile court found Brenden B. committed several offenses including residential burglary (Pen. Code, 459-460),[1]street terrorism ( 186.22, subd. (a)), receiving stolen property ( 496, subd. (a)), possession of burglary tools ( 466), and misdemeanor false representation to an officer ( 148.9), and declared him a ward of the court pursuant to Welfare and Institutions Code section 602. The trial court found Brenden committed the residential burglary and receiving stolen property offenses for the benefit of a criminal street gang ( 186.22, subd. (b)[enhancement]). Brenden challenges the sufficiency of the evidence to support the conclusion he was an active participant in a criminal street gang, a necessary element of the street terrorism charge. Additionally, Brenden also argues there was no substantial evidence demonstrating he committed residential burglary or received stolen property for the benefit of a criminal street gang. Court disagree and therefore affirm the judgment.

Plaintiff De La Secura, Inc. (DLS) appeals from the trial courts order under Code of Civil Procedure section 664.6,[1]enforcing a settlement reached before the court between DLS and defendant Salem Lutheran Church of Orange, California (Salem). The parties reached their agreement after the trial court granted Salems in limine motion excluding evidence DLS relied on to support its claims. Under the settlement, the parties agreed to dismiss with prejudice their respective claims against each other, with Salem being designated as prevailing party for attorney fee purposes. DLS contends the settlement constituted a stipulated judgment for challenging on appeal the trial courts ruling on Salems motion in limine, which DLS contends precluded it from presenting its case at trial. Court conclude the settlement between DLS and Salem was not a stipulated judgment entered into merely for the purpose of facilitating DLSs appeal of the trial courts in limine ruling, but represented the agreement of the parties to end the litigation between them. Because DLS may not appeal the trial court in limine ruling following a voluntary settlement, Court grant Salems motion to dismiss the appeal.

Alana L. (mother) appeals from the juvenile courts dispositional order declining to declare Tyler R., now age 11, a dependent of the court, instead ordering continued conjoint therapy, counseling services, and informal supervision of the child by Orange County Social Service Agency (SSA) under Welfare and Institutions Code section 360, subdivision (b) (all further statutory references are to this code). Mother does not attack the juvenile courts decision to leave Tyler in the home of William R. (father) and his fiance, Rachel, a policewoman who left marks on Tyler after spanking him over his jeans with a belt. Rachel and father impressed the juvenile court with their remorse and full cooperation with SSA. Mother acknowledges father and Rachels agreement that father would assume sole responsibility for disciplining Tyler sounds like it could work. But she argues the juvenile court abused its discretion by failing to declare dependency ( 360, subd. (d)) so the court, rather than SSA, could formally supervise Tyler in father and Rachels home. As mother phrases it, Given the severity of the physical abuse and . . . that Tyler was left with the very person who physical[ly] abused him, Tylers best interest required the court to declare dependency and have formal supervision in this matter.
The appeal is dismissed.

Defendant Charles Dewey Cage appeals from his 22 year sentence, raising two issues. First, defendant argues, and the Attorney General agrees, that the trial court could not impose both a one year sentence for a prior prison term enhancement, and a five year sentence for a prior serious felony strike conviction enhancement, when the same conviction was the basis for both enhancements. The trial court should have stayed imposition of the prior prison term enhancement sentence. Second, although the trial court erred by using the same prior conviction as a serious felony strike enhancement and as the articulated aggravating factor justifying the imposition of the upper term sentence, Court affirm as modified because it is not reasonably probable a more favorable result to defendant would have been reached in the absence of this error.

Katrina H. appeals from the termination of parental rights to her daughter, K.H. Katrina claims the evidence does not support the finding of the juvenile court that K.H. is adoptable. Alternatively, she claims the court should have refused to terminate parental rights because of the significant bond between her and K.H. Court find no error and affirm the judgment.

Defendant Jose Meza[1] appeals from an order revoking probation and committing him to state prison. He contends that his trial attorney was prejudicially ineffective in failing to request that the trial court state its reasons for sentencing defendant to prison rather than reinstating probation. Although we are troubled by counsels failure to draw the courts attention to its statutory duty to state reasons for its sentence choices, Court see no reasonable likelihood on this record that counsels omission had any effect on the courts decision. Accordingly, Court affirm the judgment.

Defendant Sergio Ortiz brings this appeal from a judgment of conviction entered after this court reversed the original judgment in part and remanded for retrial or resentencing. The trial court conducted no further trial, instead resentencing defendant to a term including consecutive sentences on various counts. The sole question on this appeal is whether the imposition of consecutive sentences based on facts not found by a jury beyond a reasonable doubt violated the federal constitutional proscription against criminal punishment not predicated on jury findings. Since this appeal was filed, the California Supreme has authoritatively answered this question in the negative. (People v. Black (2007) 41 Cal.4th 799, 923 (Black).) As defendant acknowledges, that decision is binding on us. Court are therefore obliged to affirm the judgment.

Defendant John Howland was charged by first amended information FF409284 (consolidated with FF615447) with two counts of possession for sale of methamphetamine (Health & Saf. Code, 11378;[1] counts 1 and 3), and one count each of possession of methamphetamine ( 11377, subd. (a); count 2), possession for sale of marijuana ( 11359; count 4), possession of nunchaku (Pen. Code, 12020, subd. (a)(1); count 5), being under the influence of methamphetamine ( 11550, subd. (a); count 6, a misdemeanor), and possession of drug paraphernalia ( 11364; count 8, a misdemeanor). The information further alleged that defendant was out of custody on bail at the time of the offenses in counts 1 through 3 (Pen. Code, 12022.1), and that he had two prior strikes (Pen. Code, 1170.12). Court affirm.

Defendant Gary James Sumrall appeals from a judgment entered after he pleaded no contest to one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), one count battery on a cohabitant (Pen. Code, 242-243, subd. (e)), one count of battery on a specified person (Pen. Code, 242-243, subd. (b)), and admitted four prison priors. The trial court placed defendant on four years of formal probation. As one of the conditions of probation, the trial court imposed a $35 probation supervision fee. On appeal, defendant contends that the trial court erred in imposing the probation supervision fee as a condition of probation. The Attorney General agrees, and requests that we amend the judgment. Court remand for the appropriate modification of judgment.

A jury found Ernesto Luis Vargas guilty of driving under the influence (count oneVeh. Code, 23152, subd. (a)) and with a blood alcohol level of 0.08 or more (count twoVeh. Code, 23152, subd. (b)), and the court, in bifurcated trial on allegations of three prior such convictions (Veh. Code, 23550), found them true for both counts. Granted probation with execution of a prison term suspended, Vargas claims jury selection error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), plus several errors relating to results of a preliminary alcohol screening (PAS) test. Court affirm the judgment.

Kelvin Simpson challenges the validity of an alleged stay away order in effect while he serves a state prison sentence. Because there is no evidence of such an order in the record, Court affirm the judgment.