CA Unpub Decisions

On March 19, 2007, the United States Supreme Court granted a petition for writ of certiorari filed by defendant Ceariaco Cabrellis, vacated the judgment, and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Cunningham concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Id. 127 S.Ct. at p. 870.) Following the California Supreme Courts recent decision in People v. Black (2007) 41 Cal. 4th 799 (Black II), Court affirm the judgment.

Robert W. Petty, Lynne I. Petty, and Leisa Petty (the Pettys) appeal a judgment awarding damages to Lake Berryessa Enterprises, Inc., II (LBE) in connection with the parties agreement that the Pettys would purchase the Putah Creek Park Resort (the Resort). The Pettys contend the court erred when it determined that the parties agreement was mutually cancelled rather than rescinded and awarded LBE damages in the form of the balance of the Pettys down payment. Court affirm.

Allie James Bell appeals his jury convictions for first degree murder with special circumstances, and attempted robbery. He argues that one of the trial witnesses identified him as a result of a stationhouse lineup that was impermissibly suggestive, and that he was denied his right to confront the witness because the court excluded certain impeachment evidence bearing on credibility. Court disagree, and affirm.

Robert W. Petty, Lynne I. Petty, and Leisa Petty (the Pettys) appeal a postjudgment order awarding contractual attorney fees to Lake Berryessa Enterprises, Inc., II (LBE) as prevailing parties, following a 17-day court trial. The Pettys and LBE agree that resolution of this appeal depends on the outcome of the related appeal of the judgment entered in favor of LBE in the underlying action. Because we today affirmed the underlying judgment in A111217, Court affirm the attorney fees order contested in this appeal.

Chris Gilbreth appeals his convictions for voluntary manslaughter and possession of a firearm by a convicted felon. Defendants principal argument is that his conviction for possession of a firearm by a convicted felon must be reversed because his predicate felony conviction had been reduced to a misdemeanor. We agree with defendant on this point, reverse his conviction for firearm possession, and remand for resentencing. In all other respects Court affirm the judgment.

A jury convicted defendant Derran Smiley of kidnapping to commit rape and five counts of forcible rape (Pen. Code, 209, subd. (b)(1); 261, subd. (a)(2)), all involving victim Chanelle Doe. The trial court sentenced defendant to 25 years to life, consecutive to a determinate term of 24 years. Defendant challenges the sufficiency of the evidence to support the aggravated kidnapping conviction, and raises several other contentions including improper admission of prior sexual offenses, instructional error, and ineffective counsel. Court reject defendants contentions and affirm.

Defendant Terence Michael Singleton appeals after pleading no contest to a charge of first degree burglary. (Pen. Code, 459.) His sole contention on appeal is that the trial court erred in denying his motion to suppress evidence. Court affirm.

Defendants and appellants Vintners Lodge Sonoma LP, and Vintners Grove, Inc. (defendants), appeal from the trial courts order granting the request of plaintiffs and respondents Anthony and Laura Ponter and Spirits in Stone, Inc. (plaintiffs), for a preliminary injunction prohibiting defendants from obstructing a gravel driveway subject to an easement dispute. Defendants contend plaintiffs failed to establish a likelihood of success on their claim for reformation of the easement language and failed to demonstrate that the equities favored granting the preliminary injunction. Court disagree and affirm.

Liza Lasser appeals the dismissal of her petition for a writ of mandate seeking to compel the City and County of San Francisco, its assessor, and its controller (when referred to collectively, the City) to pursue recovery of a $12.6 million property tax refund paid to the IBM Personal Pension Plan (the Plan) or its trustee, JP Morgan Chase Bank, N.A. (the Trustee). Appellant argues that the tax refund was an illegal gift of public funds prohibited by article XVI, section 6 of the California Constitution. Court disagree and affirm.

G.M. (Mother), the mother of 17 month old Amanda M., petitions under California Rules of Court, rule 8.452 to vacate an order of the trial court setting a hearing under Welfare and Institutions Code section 366.26. Mother claims the Contra Costa County Department of Children and Family Services (the Department) failed to offer her reasonable reunification services and that there is a reasonable probability Amanda can be safely returned to her if reunification is extended for an additional six months. Court deny the petition on its merits.

Here we hold that under People v. Black(2007) 41 Cal.4th 799, Manuel Zamudio was not entitled to a jury trial on the factors used to impose the upper term. Court affirm.

A modification decision.

The juvenile court declared appellant Aaron G. to be a ward of the court after finding that he had committed one count of forcible lewd acts on a child (Pen. Code, 288, subd. (b)(1); count 3) and two counts of lewd acts on a child (Pen. Code, 288, subd. (a); counts 1 & 2). He was ordered into suitable placement. The victim was appellants younger brother, Anthony. At the time of the incidents, appellant was 12 years old and Anthony was 11 years old. At the adjudication hearing two years later, Anthony described three separate incidents in which he submitted to anal sex by appellant, against his will, after appellant forcibly bound his wrists and feet with masking tape (count 3), and after appellant blackmailed him (counts 1 & 2) by threatening to tell their grandmother about Anthonys consensual sexual relationship with another boy, Chris.
On appeal, appellant complains about his inability to cross-examine Anthony about the sex acts that Anthony had performed with Chris. He further maintains that there was insufficient evidence that he appreciated the wrongfulness of his conduct under In re Gladys R. (1970) 1 Cal.3d 855, 858 (Gladys R.). Finally, he argues that the trial court should not have admitted evidence that Anthony saw appellant place a two year old girl inappropriately on his lap, which was the reason Anthony decided to tell his grandmother what appellant did to him.
Court find no merit in the contentions, and affirm.

Appellant Alton Lionell Sterling and a codefendant, Randell Nashan Yoakum, committed a series of armed robberies at small, family-operated stores. At that time, appellant was 19 years old, and Yoakum was 14 years old. During one of the robberies, they both shot at Jose Chitay, who died from a bullet fired by Sterling. They both confessed to a police detective following their arrests. They were tried jointly in the criminal court. Appellant was tried by a jury; Yoakum elected a court trial. They were convicted of most of the charges against them. Court recently affirmed Yoakums conviction, in a nonpublished opinion, People v. Yoakum (July 31, 2007, B190194). Respondent concedes the first issue. Court reject the second issue, based on People v. Black (2007) 41 Cal.4th 799 (Black II). Court order a modification in the abstract of judgment, and otherwise affirm.