CA Unpub Decisions

Owner-builder Hillcrest-Thousand Oaks Associates (Hillcrest) filed a breach of contract action against contractor DSD Construction, Inc. (DSD) and DSD's surety, Insurance Company of the West (ICW) for failure to complete the engineering and site work for a residential development. After a jury trial, judgment was entered awarding damages to Hillcrest in February 2000. This is the third appeal following that judgment.
In this third appeal, DSD and ICW contend that the trial court's ruling that Hillcrest qualified for the section 7044, subdivision (b) exemption was contrary to the law of the case and to the evidence. Court affirm.

Appellant appeals from an order of the juvenile court sustaining a petition alleging that appellant committed first degree residential burglary in violation of Penal Code section 459.
Appellant contends that there was insufficient evidence to sustain the juvenile adjudication against him. Appellant further contends that his trial counsel provided ineffective assistance in failing to make a motion to exclude witness Jason Holbrooks (Holbrook) in court and out of court identifications of appellant. Court affirm.

A modification decision.

Father appeals the juvenile court's dismissal of the dependency petition without prejudice, contending that it should have been dismissed with prejudice. Court conclude that father has no standing to appeal, and so dismiss the appeal.

Mother appeals from a judgment of the juvenile court terminating parental rights to her infant daughter and establishing adoption as her permanent plan. (Welf. & Inst. Code, 366. 26.) Father is not a party to this appeal. Mother contends the juvenile court's finding of adoptability is not supported by substantial evidence and the court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). Court affirm.

Terrell Varnado (Varnado) appeals the judgment entered following his plea of no contest to inflicting corporal injury on a spouse or cohabitant (Pen. Code, 273.5, subd. (a)) and his admission he previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Pursuant to a negotiated plea agreement, the trial court sentenced Varnado to six years in state prison. Court dismiss the appeal as inoperative for failure to obtain a certificate of probable cause.
Varnados petition for writ of habeas corpus, which is being considered concurrently with this appeal, is denied as the contentions raised fail to warrant relief.

Jacquelyn H., mother of the minors, appeals from orders of the juvenile court denying a petition to invalidate proceedings due to alleged violations of the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C. 1901 et seq.). Appellant contends the court erred in denying the petition and reversal is required because the tribe was not provided proper notice before the minors were moved to an out of county placement. Court affirm.

A jury convicted defendant Frances Ann Madeiros of unlawfully possessing four tablets of Vicodin, a narcotic painkiller (Health & Saf. Code, 11350, subd. (a)) and twenty shotgun shells (Pen. Code, 12316, subd. (b)(1)). The jury also found true the allegations she served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). On appeal, she contends the trial court abused its discretion by allowing the prosecution to introduce evidence that she gave conflicting stories to the arresting police officers about a knife they found in the same cedar chest as the ammunition. (Evid. Code, 352.) Finding no abuse of discretion, Court affirm.

Following the rejection of its protest to the award of a public contract to real party in interest Sharp Electronics Corp. (Sharp), plaintiff Imagistics International, Inc. (Imagistics) filed the present petition for a peremptory writ of mandate directing defendant DGS to accept its protest, or for a declaration that the award of the contract to Sharp was void. In bifurcated proceedings, the trial court first found that the standard of strict compliance was appropriate for the procedures for filing a protest, which plaintiff Imagistics had not satisfied. In its subsequent order, it did not find any basis for excusing plaintiff Imagistics from exhausting this administrative remedy.
Plaintiff Imagistics promptly appealed. It renews its arguments here, as well as invoking new ones for the first time. Court affirm.

This is an appeal by plaintiffs Chet Vogt et al. from a decision of the trial court awarding defendant SX Ranch, Inc., attorney fees as the prevailing party under Civil Code section 1717 following a decision of this court (Vogt v. Superior Court (Apr. 4, 2006, C050675) [nonpub. opn.]), that denied a petition seeking to overturn the granting by the trial court of a summary adjudication of plaintiffs cause of action for the specific performance of a contract by plaintiffs to purchase the SX Ranch on the ground they did not have the ability to purchase the property by the close of escrow and were not prevented from doing so by SX Ranch. The judgment is affirmed.

The sole issue raised in this appeal is whether the trial court erred by refusing to give defendant Dwayne John Mills credit for time actually served in state prison when the trial court consolidated his sentences on two separate cases from two different counties. At the sentencing hearing, the prosecutor acknowledged that defendant had not been credited with 51 days he spent in state prison and urged the court not to include the credit in the abstract of judgment because all that will be calculated by the Department of Corrections. Court agree with defendant that the trial court erred.

Christopher Brunner obtained a verdict against DaimlerChrysler Corporation (DaimlerChrysler) for breach of warranty under the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C. 2301 et seq.) for a defective 2002 Jeep Grand Cherokee (the Jeep). The jury awarded the full purchase price of the Jeep, $28,040.58. The trial court denied DaimlerChrysler's motion for a judgment notwithstanding the verdict but granted it a new trial on the issue of damages.
On appeal, DaimlerChrysler contends it was entitled to a judgment notwithstanding the verdict because Brunner failed to present any evidence of his damages; Brunner's attorney misled the jury as to the proper measure of damages; the instructions on the Magnuson Moss cause of action were misleading; and a new trial should have been granted as to both liability and damages. Court affirm the judgment and the order.

William D. contends the court erred when it set a hearing to select and implement a permanency plan for his son, Edward K., under Welfare and Institutions Code section 366.26. Court deny the petition.

Defendant Myron Lee Perkins was convicted by a jury of four counts of second degree commercial burglary (Pen. Code, 459) and two counts of forgery ( 470, subd. (a)). Based on these and prior convictions, defendant was sentenced to 13 years in prison. He contends the trial court violated section 654 because it did not stay the execution of sentence on three out of the four burglary charges. Defendant also argues his sentence is unconstitutional for two reasons: First, defendant claims he was denied his right to retained counsel of his choice at sentencing. Second, defendant claims the trial court imposed the upper term for the burglary charged in count 1 based on factors not found true by a jury in violation of the Supreme Courts recent decision in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].
The trial courts imposition of the upper term on count 1 is reversed, and Court remand this matter for further proceedings not inconsistent with this opinion and Cunningham. The judgment is affirmed in all other respects.