CA Unpub Decisions

Danny Santos entered a negotiated guilty plea to battery on a peace officer (Pen. Code, 243, subd. (c)(2))[1]with personal infliction of great bodily injury ( 12022.7, subd. (a), 1192.7, subd. (c)(8)) and admitted a strike ( 667 subds. (b)-(i), 1170.12, 668). The court sentenced him to prison for a stipulated term of five years eight months: two years eight months (twice the lower term) plus three years for the section 12022.7, subdivision (a) enhancement. Santos appeals. Court affirm.

The underlying lawsuit in this appeal arises out of a failed purchase of 36.5 acres of commercial property (Property) located in San Bernardino County. The Property was owned by Redlands Town Center, Ltd. (RTC). RTC is a limited partnership composed of the general partner, West Coast Land, LLC (WCL) and various European investors who were limited partners (Limiteds). Charles House (House) was the manager and sole member of WCL. In May 2003, Thomas Tooma (Tooma) entered into the purchase agreement and sale agreement (Agreement) with RTC. The sale never happened. Instead, Houses entity, Redlands Crossing, Inc. (RC) purchased the Property from the Limiteds in November 2003. Court find that the trial court correctly rejected Toomas claims of interference with contractual and economic relations.

In three separate appeals filed over the course of eight months, maternal grandparents Stephanie and Paul K., (Stephanie, Paul, maternal grandparents, or appellants) seek reversal of a number of juvenile court orders related to the dependency of their three-year-old granddaughter M.M. The orders appealed include two denials of petitions for Welfare and Institutions Code[1]section 388 hearings, two denials of petitions for de facto parent status, and an order continuing the suspension of their visitation with the child. M.M.s appellate counsel urges us to affirm all the appealed orders. Respondent Riverside County Department of Public Social Services (Respondent or the Department) argues vigorously in its latest reply brief that in view of M.M.s March 1, 2007, adoption, all the appeals are moot and should be dismissed. Court conclude that appellants appeals are indeed moot in that we are unable to grant effective relief. Court therefore dismiss them. As Court explain, however, even if appellants claims were not moot Court would find them meritless.

A modification decision.

Defendant Mario Fernandez appeals from judgment entered following jury convictions for simple assault (Pen. Code, 240),[1]a lesser included offense of assault with a deadly weapon ( 245, subd. (a); count 1); and for five counts of assault by force likely to produce great bodily injury ( 245, subd. (a); counts 2 through 6). The jury found defendant not guilty of actively participating in a criminal street gang ( 186.22, subd. (a); count 7), and rejected gang enhancements as to each count ( 186.22, subd. (b)). The trial court sentenced defendant to the upper term on counts 2 through 6, with count 2 serving as the principal term and the sentences on counts 3 through 6 imposed concurrently. A 180-day concurrent term was also ordered for the misdemeanor conviction in count 1. Defendant contends there was insufficient evidence to support his convictions for counts 1 through 4, which were premised on the theory of aiding and abetting. Defendant also challenges his upper term sentences on counts 2 through 6 based on Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856 (Cunningham). Court reject defendants challenges and affirm the judgment.

On March 2, 2006, a felony complaint was filed in the Superior Court of Merced County charging appellant Albert Angelo Campos with count I, felony evading arrest (Veh. Code, 2800.2, subd. (a)); count II, misdemeanor hit and run driving (Veh. Code, 20002, subd. (a)); count III, misdemeanor resisting arrest (Pen. Code, 148); and count IV, misdemeanor possession of an instrument with burglarious intent (Pen. Code, 466). Appellant pleaded not guilty. On May 16, 2006, appellant pleaded no contest to count IV. Thereafter, his jury trial began. On May 18, 2006, appellant was convicted of counts I, II, and III. The judgment is affirmed.

On August 16, 2006, the trial court issued an injunction that prohibited Eric Redler from contacting Celeste Schmidt, her teenage daughter, and her younger son. (Code Civ. Proc., 527.6.)[1] Redler argues the trial court violated his right to due process of law when it allowed Schmidt, who appeared in propria persona, to read from a prepared statement instead of subjecting herself to direct examination and by not providing him a copy of this statement until the day of trial. He also challenges the sufficiency of the evidence to support the courts order. Court find no merit in either contention. Consequently, the courts order and its subsequent judgment are affirmed.

Defendant Jorge Arturo Marquez-Ortiz was convicted of first degree residential burglary (Pen. Code, 459, 460, subd. (a)). On appeal, he contends the court erred in failing to give a sua sponte instruction on loitering or prowling, and that, in the alternative, defendant received ineffective assistance of counsel, because counsel did not request the instruction.
The court did not err in failing to give the instruction and defense counsel did not provide ineffective assistance for failing to ask for the instruction. Only first degree residential burglary was charged, and the offense of loitering or prowling is not a lesser included offense. Therefore, defendant had no entitlement to the instruction. Court affirm.

Ronald Rose was determined by a jury to be a sexually violent predator (SVP) and committed by the court to the custody of the California Department of Mental Health under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, 6600 et seq.). On appeal, he claims that he was denied due process and a fair trial as a result of instructional error and the admission of unreliable hearsay evidence. He also asserts that the SVPA violates the ex post facto clause and the equal protection clause of the United States Constitution. Court affirm the order of commitment.

In a declaratory judgment interpreting a settlement agreement between appellant Denise Boucher and her uphill neighbors, the trial court ruled that respondents Stephen and Jeanne Wisniewski had the right to drain surface and subsurface waters over and through Bouchers real property. On the Wisniewskis cross-complaint, a jury found Boucher liable for breach of the settlement agreement. On appeal, Boucher challenges these rulings, asserting that the trial court misinterpreted the settlement agreement and misinstructed the jury about it. Court affirm the judgment.

Cleghorn Bar Enterprises, a partnership, and J. Kern Hamilton, individually and as trustee for the J. Kern and Betty Hamilton Revocable Trust (collectively plaintiffs) were limited partners in a partnership that owned a parcel of property in San Francisco. After the property was sold to Third & Folsom, LLC (Third & Folsom), plaintiffs brought this action against Third & Folsom and William F. Garlock, trustee for the William F. Garlock Family Trust. (collectively defendants) seeking damages under an indemnity agreement defendants had executed at the time of the sale. The trial court found in favor of defendants. Court affirm.

Lakhpal Bharji appeals from a judgment entered after jurors rejected his civil causes of action alleging workplace retaliation. He contends several errors were committed prior to and during his trial. Court reject appellants arguments and affirm.

Defendant Jerlyn L. Smith appeals a judgment awarding plaintiff Nicole R. Lee specific performance of a contract to convey real estate. She contends on appeal that no contract was formed; that the trial court wrongly awarded specific performance, incidental damages, and attorney fees; and that the trial court should not have dismissed her cross complaint. Court affirm.

Defendant Jerlyn L. Smith appeals a judgment awarding plaintiff Nicole R. Lee specific performance of a contract to convey real estate. She contends on appeal that no contract was formed; that the trial court wrongly awarded specific performance, incidental damages, and attorney fees; and that the trial court should not have dismissed her cross-complaint. Court affirm.