CA Unpub Decisions

Via a fourth amended complaint, plaintiff sued defendants for price discrimination in the sale of petroleum and related causes of action. The trial court granted defendants’ motions for summary judgment. On appeal, plaintiff contends that he raised triable issues of fact. Court disagreed. Court therefore affirmed the judgment.

Defendant was charged by information filed with one count of second degree robbery. The information further alleged that the offense was committed for the benefit of a criminal street gang, and that defendant had served a prior prison term. Defendant entered a negotiated no contest plea to the charge and admitted the enhancement allegations. On appeal, Defendant requested the court independently review the record. Court reviewed the entire record and defendant’s brief and have concluded that there is no arguable issues on appeal. The judgment is affirmed.

A modification decision.

After a contested jurisdictional hearing the court found two counts to be true: possession of a controlled substance and possession of marijuana. On appeal, Defendant requested the court to independently review the record. After reviewing the entire record, the court concluded that there is no arguable issues on appeal. The judgment is affirmed.

Appellant appeals from the order committing him to the Department of Mental Health for two years, based upon a jury’s determination that he is a sexually violent predator. Appellant contends that: (1) he did not receive an adequate number of peremptory challenges to prospective jurors; (2) the trial court erred in instructing the jury on consciousness of guilt, pursuant to a modified version of CALJIC No. 2.03, based on false pretrial statements; and (3) the jury’s determination that he is an SVP is not supported by substantial evidence. Court affirmed.

Appellant was convicted of felony murder. Defendant contends the trial court should have instructed the jury that in order to convict appellant of this crime, it had to find both that the homicide was part of one continuous transaction with the underlying burglary or robbery, and that the underlying crimes were still in progress at the time of the homicide, despite the victim’s intervening sexual assault on appellant. Court rejected these contentions, and affirmed the judgment.

The court entered an order terminating the parental rights of Mother and Father. On appeal from that order, Mother contends that the juvenile court and the Contra Costa Children and Family Services Bureau (Bureau) erred by failing properly to assess minor’s maternal grandfather (Grandfather) for preferential placement pursuant to section 361.3. She also claims the court violated her constitutional right to freedom of association and her right to marry, by terminating her parental rights solely because of her desire to continue her relationship with Father. Court affirmed the order.

Defendant was charged with one count of selling cocaine and one count of possessing cocaine Counsel appointed for defendant Emiliano has asked this court to independently examine the record. Court conducted that review, concluded there are no arguable issues. Judgment affirmed.

By this petition for writ of habeas corpus, appellant, seeks a declaration that his notice of appeal in was constructively and timely filed.
Respondent concedes that petitioner is entitled to the relief he seeks and waives issuance of an order to show cause. Respondent also waives oral argument and stipulates to the immediate issuance of the remittitur.
Therefore, the petition for writ of habeas corpus is granted to the extent that the notice of appeal filed by the superior court is deemed constructively and timely filed.

A modification decision.

Wife appeals from the order modifying the amount of monthly spousal support paid by her former husband, from $11,727 to zero, while reserving jurisdiction. Appellant contends the trial court abused its discretion because Husband did not prove a material change of circumstances to justify the modification, because the order requires her to liquidate her entire estate including her primary residence, and because the trial court improperly considered loan applications she made to purchase or refinance investment properties. Appellant further contends the trial court erred when it refused to increase spousal support and when it denied her request for an award of attorney fees.
Court observed that while appellant presents the contentions as errors of law, they involve questions of fact. They were resolved adversely to her by the trial court which expressly ruled that she lacked credibility. Court affirmed.

A modification decision.

A subcontractor on a project had its license suspended due to an unpaid judgment. The subcontractor obtained reinstatement of its license, but still found itself in dire financial straits, and sought assistance from the contractor. The subcontractor executed a promissory note by which it agreed to repay, with interest, any amounts advanced by the contractor. The promissory note expressly provided that the contractor had no obligation to advance funds and that any advance of funds would be solely at the contractor’s discretion. Some months later, the subcontractor’s license was suspended for failure to resolve outstanding liabilities. The relationship between the contractor and the subcontractor deteriorated, and they brought cross-actions against each other for breach of the subcontract. The subcontractor also alleged the contractor had fraudulently induced it to execute the promissory note by falsely promising to advance the funds necessary for it to remain afloat.
The contractor successfully demurred to the subcontractor’s cross-complaint. As to the cause of action for breach of the subcontract, the demurrer was sustained on the basis that the subcontractor’s license had been suspended during its performance of the work. As to the promissory fraud cause of action, the demurrer was sustained on the basis that a contracting party cannot sue on a promise that was superseded by, and is inconsistent with, the written contract the promise allegedly induced. The subcontractor appeals; court affirmed.

Defendant was convicted by jury of forcible rape with great bodily injury and unlawful sexual intercourse with a minor under the age of 16 with special findings that he inflicted great bodily injury. Sentenced to 13 years state prison, he appeals contending, among other things, that the trial court committed evidentiary and instructional error. Court affirmed.