CA Unpub Decisions

Plaintiff Lanny Jay appeals from a judgment dismissing his third amended complaint after the trial court sustained demurrers to each of plaintiffs claims without leave to amend. Court affirm.

Mary J. (Mother) has petitioned this court for extraordinary writ challenging the juvenile courts continued placement of T.F. in foster care rather than with his maternal aunt (Aunt). Mother also seeks to compel the juvenile court to divest the child welfare worker of discretion related to visitation. These rulings were included in the courts order of October 4, 2007, which otherwise terminated Mothers reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan. As discussed post, Court find no error and deny Mothers petition on the merits.

George Harrison Rowans appeals the order recommitting him to the Department of Mental Health pursuant to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, 6600 et seq.) Court appointed counsel to represent Rowans in this court. After counsel's examination of the record, he filed an opening brief raising no issues and asking us to independently review the record pursuant to Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal.3d 436. In light of Ben C., Court conclude that Anders/Wende review is not required in SVPA proceedings. Accordingly, Court dismiss the appeal.

A real estate broker and one of its agents challenge a jury verdict awarding damages to a homeowner in a dispute over a listing agreement for the homeowners residence. The broker and agent contend the trial courts instruction on damages was erroneous as a matter of law, and there was insufficient evidence to support the damages awarded. Finding no error, Court affirm the judgment.

After his motion to suppress evidence was denied, appellant Pablo Casas Garcia was convicted by jury of one count of driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (a). In bifurcated proceedings, appellant admitted four prior convictions within the meaning of sections 23550 and 23550.5 and a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced appellant to a total term of four years, consisting of the upper term of three years and one consecutive year for the prison prior.
Appellant appeals on the grounds that: (1) the trial court erred in denying appellants motion to suppress evidence; (2) the trial court violated appellants federal and state constitutional rights to due process and trial by jury when it refused the defense pinpoint instruction; and (3) imposition of the upper term was based on a prohibited dual use of fact and violated appellants federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments.

Plaintiff and appellant Kenneth Joel Niems appeals from a judgment entered against him following a bench trial on his action brought against defendants and respondents Kevin and Sydney Niems. After appellant executed a quitclaim deed in favor of his son, Kevin, he brought an action seeking cancellation of the deed and/or quiet title on the grounds of undue influence and fraud. In a detailed statement of decision, the trial court ruled that the evidence did not support appellants claims. Appellant contends that the trial court erred by disregarding testimony from his psychiatrist and by applying Evidence Code section 662, the latter of which he claims had the effect of improperly shifting the burden of proof and imposing on him the obligation to prove his claims by clear and convincing evidence. Court affirm.

Terry Michael Hansen appeals from the judgment entered following his pleas of guilty to 12 counts of robbery (Pen. Code, 211; counts 1 - 12) with admissions as to each offense that he personally used a firearm (Pen. Code, 12022.53, subd. (b)), and with admissions that he suffered three prior felony convictions (Pen. Code, 667, subd. (d)) and two prior serious felony convictions (Pen. Code, 667, subd. (a)). The trial court sentenced him to prison for 70 years 8 months. Appellant claims the trial court committed sentencing errors. Court remand for resentencing but otherwise affirm the judgment.

Appellant Virgil Pinero Narvaez challenges his multiple lewd act upon a child convictions on the grounds the trial court erred by excluding the greeting cards the victim had given him, Evidence Code section 1108 violates due process and equal protection, the trial court abused its discretion by admitting prior sexual offense evidence, and the trial judge lacked jurisdiction to reconsider and reverse the prior decision of a different judge regarding the admissibility of the prior offense evidence. We conclude appellant forfeited his claims regarding exclusion of greeting cards by failing to articulate a theory of admissibility at trial. Evidence Code section 1108 does not violate due process or equal protection. The trial court did not abuse its discretion by admitting the prior sexual offense testimony. Following a mistrial, the second trial judge permissibly reconsidered the first trial judges ruling excluding prior sexual offense evidence under Evidence Code section 352.
Narvaez also challenges his conviction by a petition for writ of habeas corpus alleging ineffective assistance of counsel. Court conclude the petition does not establish a prima facie claim, as it does not establish that counsels waiver of closing argument was prejudicial.

A jury convicted appellant Thomas Esparza of one count of first degree robbery (Pen. Code, 211).[1] The jury found true the allegations that a principal was armed with a firearm ( 12022, subd. (a)(1)), that a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), and that the crime was committed for the benefit of a street gang. ( 186.22, subd. (b)(1)(C).) After finding that appellant had suffered a prior strike conviction ( 667, subds. (b) - (i), & 1170.12, subds. (a) - (d)) and a prior serious felony conviction ( 667, subd. (a)(1)), and that he had served a prior prison term ( 667.5, subd. (b)), the trial court sentenced appellant to a total term of 28 years in state prison. Defendant appeals, contending: (1) the evidence was insufficient to prove the gang enhancement; (2) the trial court erred by telling the jury the nature of defendants prior conviction; (3) the evidence was insufficient to establish that the Varrio Norwalk gang engaged in one or more of the enumerated felonies as a primary activity and therefore failed to prove it was a criminal street gang; (4) the court erred in imposing enhancements pursuant to both section 667.5, subdivision (b), and section 667, subdivision (a)(1), based on a single prior conviction; and (5) the imposition of the upper term violated his constitutional rights to due process and a jury trial. Court modify the judgment by striking the prior prison term enhancement ( 667.5, subd. (b)) and otherwise affirm.

Defendant Diversified Product Industries, Ltd. (DPI) appeals from the judgment entered in favor of plaintiff FNF Construction, Inc. (FNF) after the court granted summary judgment on FNFs cause of action for unjust enrichment and on DPIs cross-complaint. Defendant contends that the court ignored evidence of a triable issue and that the declaration of Jack Pryor, the president and CEO of DPI, established a triable issue. Court reverse and remand.

Appellant Andrew Cook appeals from his conviction on one count of second degree robbery. He contends the prosecutor alluded to his failure to testify during closing argument and thereby committed misconduct and violated Griffin v. California (1965) 380 U.S. 609 where the United States Supreme Court held: [T]he Fifth Amendment, in its direct application on the Federal Government, and in its bearing on the states by reason of the Fourteenth Amendment, forbids . . . comment by the prosecution on the accuseds silence . . . . (380 U.S. at p. 615). Appellant also contends that the trial court erred in imposing an upper term sentence based on facts not submitted to the jury or found true beyond a reasonable doubt. Court conclude that no misconduct or error occurred and affirm.

James Calbert was convicted of four rapes and three robberies and sentenced to state prison for 413 years to life. He challenges various aspects of his conviction and sentence. Court conclude that one of the restitution orders was unauthorized and must be vacated, but Court otherwise affirm the judgment.

Principles of due process require that the juvenile court not terminate a presumed fathers parental rights without first finding, by clear and convincing evidence, that the father is unfit. Because no such finding was made in this case, and based on our conclusion the court improperly terminated parental rights based on a fathers poverty, we will reverse the order terminating parental rights and remand for reconsideration whether a proper basis for such termination exists, and if not, for renewed efforts aimed at returning the children to their fathers custody. Court also conclude reversal of the order terminating parental rights is required, and remand the matter, so the juvenile court may properly determine whether the Indian Child Welfare Act (ICWA), 29 U.S.C. section 1900 et seq., governs this proceeding.

Jay Curtis Brooks appeals from the judgment entered following his guilty plea to robbery (Pen. Code, 211, count 1),[1]possession of a controlled substance (Health & Saf. Code, 11350, subd. (a), count 2) and misdemeanor possession of an opium pipe (Health & Saf. Code, 11364, subd. (a), count 3). His request for a certificate of probable cause was denied. Appellant admitted seven prior felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), two prior felony convictions within the meaning of section 667, subdivision (a) and a prior prison term within the meaning of section 667.5, subdivision (b). After denying appellants Romero[2]motion, the trial court sentenced him to a term of 25-years-to-life on count 1 and a concurrent 25-years-to-life term on count 2. It dismissed count 3 in furtherance of justice under section 1385 and struck the two 5 year priors under section 667, subdivision (a).
Court have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The order under review is affirmed.