CA Unpub Decisions

Following a jury trial, Javier Villarreal (appellant) was acquitted of burglary (Pen. Code, 460, subd. (a))[1]in count 2, but found guilty of aggravated mayhem ( 205) in count 3, mayhem ( 203) in count 4, and assault with a deadly weapon ( 245, subd. (a)(1)) in count 5. As to counts 3 and 4, the jury found true the allegations that appellant used a deadly weapon within the meaning of section 12022, subdivision (b)(1). The jury deadlocked on a charge of attempted murder ( 664, 187, subd. (a)) in count 1, and the court declared a mistrial as to that count. In a bifurcated proceeding, the trial court found true that appellant had a prior strike conviction ( 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( 667, subd. (a)).
The trial court sentenced appellant on count 3 to state prison for a term of life with the possibility of parole, plus one year for the deadly weapon enhancement and five years for the prior serious felony conviction. The court imposed upper term, enhanced sentences on counts 4 and 5 but ordered them stayed pursuant to section 654.
On appeal, Court agree with appellants contention that his conviction for simple mayhem in count 4 must be reversed. We disagree with his claims that the prosecutor committed prejudicial misconduct during closing argument and that imposition of the upper term sentence on count 5 violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham).

Following a jury trial, Heraclio Yanes-Zavala (appellant) was found guilty of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a); count 1), possession of methamphetamine (id., 11377, subd. (a); count 2), a lesser included offense of possession for sale, and possession of paraphernalia (id., 11364; count 3). In a bifurcated proceeding, after appellant waived his right to a jury trial on the issue, the trial court found true that appellant had a prior serious felony conviction for violating Penal Code section 288, subdivision (a).( 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) The trial court refused appellants request for Proposition 36 drug treatment and sentenced appellant to the upper term of eight years in state prison on count 1 and the upper term of six years on count 2, the latter stayed pursuant to section 654. On appeal, appellant argues that the upper term sentences imposed on counts 1 and 2 violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). He also claims that the trial court erred when it found him ineligible for Proposition 36 treatment due to an immigration hold. Court disagree with both of his contentions.

Appellant, Juan Nava Fernandez, was granted probation following his convictions for transportation of methamphetamine (Health & Saf. Code, 11379. subd. (a)) and two misdemeanor Vehicle Code violations. At sentencing, the court ordered appellant to pay $401 for the cost of preparation of the presentence report and $40 per month in probation supervision fees. However, the probation officer had not made a determination of the ability of the defendant to pay all or a portion of the reasonable cost of probation supervision and the preparation of the report as required by Penal Code section 1203.1b, subdivision (a). Appellant was also not advised of his statutory right to a hearing on his ability to pay and the payment amount. (Pen. Code, 1203.1b, subd. (a).) Appellant argues the trial court erred in ordering him to make these probation-related payments without first inquiring into his ability to pay. Thus, appellant contends, the order to pay these costs must be stricken.
Appellant is correct that these requirements imposed by Penal Code section 1203.1b were not met. Nevertheless, appellant did not object to the probation-related fees in the trial court. The failure to object to statutory error in the imposition of a probation fee under Penal Code section 1203.1b in the trial court waives the matter for purposes of appeal. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)
The judgment is affirmed.

Appellant, Gary Fant, challenges the grant of summary judgment in favor of respondent, Standard Trust Deed Service Company (STD), on Fants complaint for wrongful foreclosure and unfair business practices. According to Fant, STD unlawfully foreclosed on the subject property because the sale took place after five postponements whereas former Civil Code section 2924g permits only three. However, postponements due to court order or a stay by operation of law are not considered postponements for purposes of determining the maximum number of postponements permitted before a new notice of sale is required. (Former 2924g, subd. (c)(2).) The trial court concluded that a bankruptcy filed by parties claiming an equitable interest in the subject property stayed the foreclosure sale at least twice by operation of law. Fant contends this was error.

A jury convicted Terry Lance Wolfe of second degree murder. He argues on appeal that the court erred by failing to instruct on imperfect self-defense, failing to initiate proceedings to review his competency to stand trial, and imposing a restitution fine in excess of the statutory minimum. In a consolidated petition for writ of habeas corpus, he complains the trial court violated his due process right to a fair trial because his trial competence depended on taking the medication Paxil, which authorities withheld during trial. For the reasons expressed below, Court affirm the judgment and deny the petition.

James Lee Mohoff appeals from a judgment after a jury convicted him of nine counts of second degree commercial burglary and one count of passing a fictitious instrument. Mohoff argues the trial court erroneously denied his motion for acquittal, we should remand the matter to the trial court for it to consider summary probation, and pursuant to Penal Code section 654, the court erroneously sentenced him to concurrent sentences on counts 9 and 10 because they were part of a continuous course of conduct. court agree with his claim concerning concurrent sentences and stay his sentence on count 10. Neither of his other contentions have merit, and Court affirm the judgment as modified.

This is Jennifer Lorraine Turners second appeal regarding her purported interest in her ex-husbands stock options. In the first appeal, we rejected Jennifers claims she was not adequately compensated for her share of the Broadcom stock options Robert Edward Turner had obtained through his employment.[1](In re Marriage of Turner (Aug. 3, 2004, G032937) [nonpub. opn.].) We affirmed the trial courts order requiring Robert to transfer 4,474 shares to her account. The trial court determined the number of shares by using a calculation that took into account $68,857 for Roberts tax liability. In our prior opinion, we noted there remained an issue as to whether Robert actually incurred any tax liability in purchasing the shares, and we recognized this issue would soon be decided by the trial court. Our record showed the court had appointed a forensic accountant who would be asked to review the tax documents and determine if Jennifer was owed any additional money. (Ibid.)
Jennifers sole contention on appeal is the trial court erred in failing to adhere to our prior decision under the doctrine of law of the case. Court find her contention lacks merit, and Court affirm the postjudgment order.

Mitchell Land and Improvement Co. (Mitchell), brought an unlawful detainer action (Code Civ. Proc., 1161 et seq.), against its lessee, Ristorante Ferrantelli, Inc. (Ferrantelli), based on alleged violations of a lease provision requiring the premises only be used for lawful purposes. Mitchell contended Ferrantelli had erected an outdoor tent and fire pit in a patio dining area without proper permits. Mitchell later voluntarily dismissed its action after Ferrantelli filed a motion for summary judgment. Mitchell appeals from the trial courts subsequent order awarding Ferrantelli its attorney fees contending Civil Code section 1717, subdivision (b)(2), which prohibits an award of attorney fees when an action on a contract has been voluntarily dismissed, precludes such an award. We agree that because this unlawful detainer is one based upon an alleged breach of contract, section 1717, subdivision (b)(2), applies and the attorney fees award was improper. Accordingly, Court modify the order to strike the award of attorney fees.

Court appointed counsel to represent James G., on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. James was given 30 days to file written argument on his own behalf. That period has passed, and Court have received no communication from him. Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

Defendant, Jorge Aguilar Vallejo, appeals from a judgment of conviction entered after he pleaded no contest to felony possession of methamphetamine and various misdemeanors and admitted suffering a prior burglary conviction for which he served a term in prison. The trial court sentenced him to three years in prison. Court affirm the judgment.

Maunice Sandefur and Michael J. Crummer were jointly tried and convicted by a jury of felony assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)[1]) and second degree robbery ( 211; 212.5, subd. (c)). The jury also found true allegations that appellants personally inflicted great bodily injury and personally used a deadly weapon ( 12022.7, subd. (a); 12022, subd. (b)(1)). A second jury found true numerous prior conviction allegations with respect to each appellant. Thereafter, the trial court sentenced Sandefur to a total term of 13 years in prison and Crummer received a Three Strikes sentence of 37 years to life. Sandefur raises a single issue on appeal. She contends the trial court erred by permitting the prosecutor to file an amended information alleging additional prior prison term allegations against her after the jury that had convicted her was discharged. Approaching this issue from a different direction, Crummer contends that his trial counsel rendered ineffective assistance by consenting to the filing of the amended information after the jury that convicted appellants had been discharged. We agree with Sandefur and modify her sentence to correct the courts error. However, we find that Crummer has failed to substantiate his ineffective assistance claim on appeal.
On appeal, Crummer also contends the judgment against him must be reversed because of an evidentiary error relating to Sandefurs trial testimony and that the trial court made a sentencing error. In a separately filed in pro per petition for writ of habeas, corpus, which we consider along with this appeal, Crummer seeks reversal of the judgment on a variety of grounds. Aside from the sentencing error, which the People concede we must correct, Court reject Crummers contentions, affirm the judgment and deny the petition.

Timothy J. Anderson was sentenced to an aggravated term of imprisonment following his plea of guilty to three counts of arson of forest land (Pen. Code, 451, subd. (c)counts 1, 3 and 8)[1]and two counts of arson of an inhabited structure ( 451, subd. (b)counts 5 and 6) and his admission as to each count that he had used a device to accelerate or delay ignition ( 451.1, subd. (a)(5)). Appellant contends imposition of the upper term denied him his rights under the Sixth Amendment as explicated in Cunningham v. California (2007) U.S., 127 S.Ct. 856 (Cunningham), and that the error was prejudicial. Court agree that imposition of the upper term violated the Sixth Amendment in this case and so Court remand to the trial court for resentencing.

Here we conclude that the payment of property taxes on an encroaching structure does not necessarily satisfy the requirement that taxes be paid on land which is sought through adverse possession. (See Code Civ. Proc., 325.) Court affirm the judgment entered on a jury verdict in favor of respondent Sulpicio Mariano (Mariano) and against the adverse claimants, plaintiffs William and Patricia Sigman (the Sigmans).

This is the second appeal brought by Keenan & Associates (Keenan), in which it seeks to compel nonsignatory, public entity plaintiffs to arbitrate their claims against Keenan by virtue of their membership in various joint powers agencies (JPAs).[1] In an unpublished opinion (San Francisco Unified School District v. Keenan & Associates (May 15, 2007, A112106 [Keenan I]), we affirmed orders denying Keenans motion to compel arbitration with respect to claims asserted by San Francisco Unified School District (SFUSD) in the first and second amended complaints.[2] The instant appeal pertains to the order denying Keenans motions to compel arbitration of the claims asserted by SFUSD, San Francisco Community College District (SFCCD), Tuolumne Joint Powers Authority (TJPA),[3]and the People of the State of California, by and through San Francisco City Attorney Dennis Herrera (Herrera or the People) (collectively the named plaintiffs), in the fourth amended complaint. Once again, Keenan has failed to establish an applicable exception to the general rule that a nonsignatory is not bound by an arbitration agreement. Equally unavailing are Keenans assertions that SFCCD is bound to arbitrate its existing claim by virtue of a subsequent arbitration agreement with Keenan, and that the People are required to arbitrate its unfair competition law (UCL) claim. (Bus. & Prof. Code, 17200.) Accordingly, Court affirm the order denying Keenans motions to compel arbitration.