CA Unpub Decisions

John Batto commenced this action to quiet his title to an easement across property owned by Don and Jil Schutz. After a court trial, the superior court found that Battos easement does not extend across the Schutzes property, denied Batto declaratory and injunctive relief, and ordered Batto to execute a quit claim deed in favor of the Schutzes. Court reverse.

Appellant Erik S. Wong contends the trial court erred by imposing penalty assessments in connection with a laboratory analysis fine (Health and Safety Code, 11372.5, subd. (a)) and a drug program fine ( 11372.7, subd. (a)). Court affirm.

The People appeal from a judgment dismissing the information against Robert Burdette after granting his motion to suppress evidence. While this appeal was pending, Burdette died. Despite the mootness of the appeal, the People argue that we should nevertheless resolve the issue raised on appeal challenging the trial courts grant of Burdettes motion to suppress evidence. We decline to do so. All proceedings in this action have permanently abated by reason of Burdettes death, and the matter will be remanded to the superior court for the entry of an order to that effect. (People v. Dail (1943) 22 Cal.2d 642, 659.)
Contrary to the Peoples argument, Court conclude this appeal does not present any issue that warrants the exercise of our discretion to resolve it now, despite the evident mootness of the appeal.

Defendant and appellant Karl Selitsch appeals the sentence imposed following his guilty-plea conviction on the charge of conspiracy to commit burglary in the first degree, in violation of Penal Code sections 182, 459 and 460, subdivision (a). Appellant contends the trial court violated his Sixth Amendment right to a jury trial by imposing the aggravated term of six years based on facts determined by the trial court rather than by a jury. Court agree. Accordingly, Court vacate the sentence and remand for further proceedings.

Mary Sue Little (seller) appeals the trial courts decision after a bench trial that her claims of breach of contract, rescission, and cancellation were time barred. She argues there is no evidence to support the trial courts finding that all of the contractual obligations of David Lai (buyer) were due on October 11, 1999, and that the court erred in determining the statute of limitations began to run on this date. Court affirm the judgment.

Defendant Mark Engram appeals from a judgment entered after the superior court revoked a probationary sentence following a contested hearing on the alleged probation violation and imposed a sentence of seven years in state prison. Defendant does not challenge the order revoking his probation but contends the trial court misunderstood its sentencing options and requests that the matter be remanded for resentencing. The Attorney General acknowledges that [t]he record of the sentencing hearing is arguably ambiguous and, consequently, a remand for the trial court to have the opportunity to articulate the reasons for its sentencing decision appears to be appropriate. Although we share the Attorney Generals skepticism that the trial court misunderstood its options, Court agree there is an ambiguity and that the prudent course is to remand for resentencing.

In this juvenile dependency matter regarding her son Edward O., Wanda O. (Mother) appeals orders of the juvenile court denying her Welfare and Institutions Code section 388 petition without a hearing and terminating her parental rights. Court affirm because Mother did not present a prima facie case that there were changed circumstances or that the modification would be in Edwards best interests; and thus, she was not entitled to a hearing on her section 388 petition.

On November 30, 2006, following a bench trial, the trial court issued a tentative decision finding in favor of plaintiffs Eduardo and Dulce Geluz on a cause of action seeking specific performance of a contract. Pursuant to this decision, defendants Charles and Maria Richards were ordered to convey to plaintiffs their interest in certain real property upon plaintiffs payment of $51,121.10. The tentative decision directed plaintiffs to prepare a proposed statement of decision but noted that if plaintiffs failed to comply with the time limitations of California Rules of Court, rule 232 (now rule 3.1590), the tentative decision would be deemed the courts statement of decision. The appeal is dismissed.

In a prior appeal, we affirmed the conviction of appellant, Keith Rene Marchand, for unlawfully driving and taking a vehicle, and evading an officer in disregard for the safety of others. (Veh. Code, 2800.2, subd. (a), 10851, subd. (a).) We remanded the matter for a determination of whether his prior Nevada robbery conviction qualifies as a "strike" under California's Three Strikes law. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court found that the Nevada robbery qualifies as a strike and resentenced Marchand accordingly. Marchand appeals. Marchand also contends that the court improperly sentenced him to the upper term without a jury. The United States Supreme Court granted Marchand's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] overruling People v. Black (2005) 35 Cal.4th 1238 in part. Court once again affirm, but remand for resentencing in light of Cunningham.

The United State Supreme Court has vacated the sentence in this case and has remanded the matter for our reconsideration in light of Cunningham v. California (2007) 549 U.S., [127 S. Ct. 856, 868]. Court have modified the opinion in this matter accordingly.

A modification decision.

Beach Wire and Cable, Inc. ("Beach Wire") appeals a judgment entered in favor of defendant Gail Winsayer following a court trial. Court affirm.

Mehdi Alamouti appeals from a judgment entered on resentencing. He contends that imposition of the upper term on the principal offense (count 1) constituted reversible error under Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). Court agree, reverse the judgment on count 1, remand the matter for resentencing, and affirm the judgment in all other respects.

Lee Frederick Minard, II, appeals a judgment after the court revoked his probation following his conviction for robbery (Pen. Code, 211)[1]with findings that he personally used a deadly weapon ( 12022, subd. (b)(1)), and had a prior serious felony conviction ( 667, subd. (a)(1)). We conclude, among other things, that 1) the probation revocation hearing complied with due process standards, 2) there was substantial evidence that Minard violated his probation conditions by using drugs, and 3) the court did not abuse its discretion in revoking his probation and sentencing him to state prison. Court affirm.