CA Unpub Decisions

A modification decision.

Appellant appeals from a judgment denying its petition for a writ of mandate challenging the issuance of an administrative citation by the City of San Diego Neighborhood Code Compliance Department (Code Compliance). Shaw contends that the administrative hearing violated its procedural due process rights and there is insufficient evidence to support the finding that it violated the municipal code in question. Court disagree and affirm the judgment.

This is a dispute between two sisters, Mary Watkins and Barbara Blanco, over the personal care of their mother, Narcita Olvera, and the management of her funds, which consisted primarily of $54,524 in pension benefits. While providing care for Olvera, Blanco used Olveras funds for her own benefit. Although Blanco sought $744,000 in compensation for providing care and paying Olveras expenses, the trial court ruled against her and ordered her to reimburse the estate. Blanco raises the following claims on appeal: whether the trial court erred in finding that she lacked authority to contract for services as Olveras attorney in fact under her power of attorney; if so, whether Blanco was entitled to compensation for those services; and whether the court failed to balance the equities in determining if Blanco should have received some compensation for her services.
Court conclude that, regardless of whether Blanco had the authority to contract for services as Olveras attorney in fact, substantial evidence in the record supports the trial courts findings that there was no implied contract for services. Based on the facts in this case, equity does not weigh in Blancos favor. Court affirm the judgment.

By information filed July 8, 2004, in Tulare County Superior Court, appellant was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code, 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault ( 182, subd. (a)(1); count 2), attempted robbery of Mark P. ( 211[2]; count 3), attempted robbery of Trajinder S. ( 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. ( 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang ( 186.22,, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5)), and involved the use of a deadly weapon ( 12022, subd. (b)(1)). As to all but count 4, it was also alleged that the offense involved the personal infliction of great bodily injury ( 12022.7, subd. (a)) and great bodily injury causing the victim to become comatose due to brain injury (id., subd. (b)).
In this timely appeal, appellant raises various claims of error, one of which has merit. For the reasons that follow, Court strike the finding of premeditation and deliberation on count 1, and remand the matter for resentencing.

By information filed July 8, 2004, in Tulare County Superior Court, appellant Christopher Rene Delgadillo was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code, 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault ( 182, subd. (a)(1); count 2), attempted robbery of Mark P. ( 211; count 3), attempted robbery of Trajinder S. ( 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. ( 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5).
Following a jury trial, appellant was convicted on counts 2, 3, and 4, and the gang enhancement allegations were found to be true. He was acquitted on counts 1 and 5. Appellant subsequently was sentenced to prison for three years on count 2 plus a consecutive five-year term for the gang enhancement; sentence on the remaining counts was stayed pursuant to section 654. In this timely appeal, appellant raises various claims of error relative to the gang enhancements. For the reasons that follow, Court affirm.

By information filed July 8, 2004, in Tulare County Superior Court, appellant was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code, 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault ( 182, subd. (a)(1); count 2), attempted robbery of Mark P. ( 211; count 3), attempted robbery of Trajinder S. ( 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. ( 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5). As to all but count 4, it was also alleged that the offense involved the use of a deadly weapon ( 12022, subd. (b)(1)), and the personal infliction of great bodily injury ( 12022.7, subd. (a)) and great bodily injury causing the victim to become comatose due to brain injury (id., subd. (b)).
Following a jury trial, appellant was convicted on all counts, and the gang enhancement allegations were found to be true. As to counts 1, 2, and 5, jurors found true both great bodily injury, and the weapon use, allegations; as to count 3, those three allegations were found not true.[3] Appellant subsequently was sentenced to prison for seven years to life with the possibility of parole on count 1, plus a consecutive 10-year term for the gang enhancement, a consecutive five-year term for the great bodily injury enhancement, and a consecutive one-year term for the weapon use enhancement. The court imposed concurrent terms on counts 2, 3, and 4, and stayed sentence on count 5 pursuant to section 654. In this timely appeal, appellant raises various claims of error, one of which has merit. For the reasons that follow, Court strike the finding of premeditation and deliberation on count 1, and remand the matter for resentencing.

Defendant appeals from an order extending for an additional year his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2972. Under section 2972 an MDOs involuntary commitment may be extended when the People demonstrate that (1) the patient has a severe mental disorder, (2) the disorder is not in remission or cannot be kept in remission without treatment, and (3) by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. ( 2972, subd. (e).) Appellant contends that case law, particularly the California Supreme Court case of In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), requires a fourth showing that by reason of the patients severe mental disorder the patient has serious difficulty controlling his or her dangerous behavior. He contends that the court erred in failing to instruct the jury on this fourth requirement. As Court explain, however, even if we assume (without deciding the issue) that the lack of such a control instruction was error, any such error in this case was harmless beyond a reasonable doubt. Court therefore affirm the courts order extending appellants commitment.

Defendant appeals from the judgment sending him to prison for a total of 12 years after a jury found him guilty of attempted voluntary manslaughter, attempted first degree robbery, assault with a firearm and residential burglary. (See Pen. Code, 192, 211, 213, 245, subd. (b), 459, 664.) All of these counts were enhanced because he personally used a firearm in the commission of the offenses. (See 12022.5, subd. (a), 12022.53, subd. (b).) The jury acquitted him of attempted murder and four counts of attempted robbery; and one count of making a criminal threat was dismissed before any evidence was presented to the jury.
He alleges in the petition that the prosecutor committed misconduct in a variety of ways: (1) by failing to disclose prosecution witnesses criminal records and a tape of a police interview of a prosecution witness; (2) by suppressing exculpatory evidence at the preliminary hearing; (3) by presenting and relying on allegedly false testimony; (4) by relying and presenting a case alleged by him to have been ineptly investigated; and (5) by making improper comments in its argument. Soderstrom also attacks his trial counsels representation, contending the attorney ineffectively represented him by failing to fully cross-examine multiple prosecution witnesses, to investigate potentially helpful information in cross-examining prosecution witnesses, to voir dire the jury panel as to possible racial bias or animus, and to investigate or develop a mental defense to the charges or his incompetency to stand trial. He also contends trial counsel rendered ineffective assistance by forcing him to testify even though Soderstrom had told him he desired to remain silent. He then attempts to attack the trial courts rulings regarding three instructions (see CALJIC Nos. 2.71, 2.72, 9.40) and its evidentiary ruling that the prosecution could present a firearm demonstration. After fully reviewing all materials, including his motion to augment the record which Court deny, Court deny the writ.

Defendant appeals from a judgment after a jury convicted him of aggravated assault and street terrorism and found true numerous enhancements. He argues insufficient evidence supports his street terrorism conviction and the true finding on the street terrorism enhancement, and there were sentencing errors. Alternatively, in his petition for writ of habeas corpus, Leon contends he received ineffective assistance of counsel. We ordered consolidation of the petition with the appeal. As we explain below, two of his contentions have merit, and the other is moot. Court affirm his conviction for aggravated assault, reverse his conviction for street terrorism and the true finding on the street terrorism enhancement, and remand for resentencing. Court deny the petition.

Defendant was convicted by a jury of first degree burglary, a felony (Pen. Code, 459). He filed a notice of appeal with this court, and Court appointed counsel to represent Ingram on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on appellants behalf. Appellant was given 30 days to file written argument in his own behalf. That period has passed, and Court have received no communication from him.
Court have examined the record ourselves to see if Court can find any arguable issue and cannot. Court have reviewed the transcript, the trial exhibits, the arguments considered and rejected by counsel, appellants complaints about his trial, and applied our own imagination and can find no arguable errors in this record.

Appellant appeal from a judgment against them in this collection action by Albert J. Schillinger, Jr., as trustee of Nationwide Mortgage Plan and Trust, a pension plan. Hathoot argues the debt was barred by an unreasonable delay in invoking an acceleration clause in the note, and by laches. Schillinger cross appeals, arguing the evidence does not support a finding that he failed to mitigate damages (and a corresponding reduction in the amount awarded). Court find no error and affirm.

Anthony S. appeals from an order, entered after a six-month review, that denied his motion to be declared the presumed father of Darius S. Anthony argues he was denied due process because he was not given certain notices, and the wrong standard was used in denying the motion. Court disagree and affirm.

Appellant was employed by Firsthand Capital Management, Inc. (Firsthand), a San Jose-based investment management company that provided investment advice to certain mutual funds. The president, chief executive officer, and majority shareholder of Firsthand is respondent Kevin M. Landis (Landis). Witt was terminated in April 2003 after seven years of employment with Firsthand. Shortly before his termination, he and Landis entered into a one-page agreement (drafted by Witt and his attorney-wife) entitled Privacy Agreement that is the subject of the instant appeal. Witt brought a wrongful termination suit against Firsthand and Landis in August 2003. In the second amended complaint, Witt asserted a claim for breach of the Privacy Agreement. Landis in turn filed a cross-complaint against Witt for breach of the same agreement. Witt moved to strike the cross-complaint under the anti-SLAPP (strategic lawsuits against public participation) statute, Code of Civil Procedure section 425.16.[1] Witt alleged in the motion that Landis, through the cross-complaint, was seek[ing] to have Witt pay speculative damages for allegedly exercising his First Amendment right to criticize [Firsthand] in a public forum and his constitutional right to seek redress for his grievances. The court below denied the motion.
Witt appeals from that order. He claims that the motion to strike should have been granted because (1) he established that the activity that was the subject of the cross complaint was protected speech under the anti SLAPP statute, and (2) Landis failed to meet his burden of demonstrating a probability of success. Witt contends (among other things) that the confidentiality provisions of the Privacy Agreement that he allegedly breached must be construed as applying only to the public disclosure of information shared privately between Witt and Landis after execution of the agreement. Because (Witt argues) the parties had no post-execution private communications, Landiss breach of contract claim is without merit. Court agree with the trial court that the agreement is ambiguous and is reasonably susceptible to Landiss interpretation that it prohibits disclosure of pre-execution private communications. Court therefore conclude that Landis met his burden under section 425.16 of establishing that his claim was meritorious. Accordingly, Court affirm the order denying the anti-SLAPP motion to strike.

This case returns to us on a remand from the Supreme Court. In the first appeal, we reversed a judgment in favor of plaintiffs Ray and Jo Kinsman because we concluded instructions read to the jury did not reflect the limitations on premises liability required by Privette v. Superior Court (1993) 5 Cal.4th 689 and related cases. The Supreme Court granted review, and in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the court announced a new rule for determining a premises owners liability for injuries to an independent contractors employee caused by a dangerous condition on the property.[1] Although the Supreme Court also concluded a new trial was required due to instructional error (id. at pp. 682-683), the court remanded the case to us to decide a sufficiency of evidence issue we did not reach in our first opinion. (Id. at pp. 683, fn. 8 and 684.)
Court conclude substantial evidence supports the jurys verdict of negligence and the trial court properly denied Unocals motion for judgment notwithstanding the verdict. Accordingly, Court remand the matter for a new trial to be conducted in accordance with the principles set forth in the Supreme Courts opinion. (See Kinsman v. Unocal Corp., supra, 37 Cal.4th at pp. 678-683.)