CA Unpub Decisions

Defendant was charged with being a felon in possession of a firearm (count I – former Penal Code[1] § 12021, subd. (a)(1)[2]) and ammunition (count II – former § 12316, subd. (b)(1)[3].) Defense counsel stipulated to the prior felony conviction for purposes of the two charges. After a jury convicted defendant on both counts, the court suspended sentence and placed defendant on three years’ formal probation.[4]

Richard James Muratalla shot Fernando Delarosa in the buttocks after driving up to Delarosa in a stolen car. He was convicted of attempted murder, assault with a firearm, carrying a loaded firearm in a public place while an active gang member, being a felon in possession of a firearm, and unlawful taking of a vehicle. Gang allegations, among other sentence enhancement allegations, were found true.
Muratalla correctly argues that under the California Supreme Court’s recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), the evidence does not support the conviction of carrying a loaded firearm in a public place while an active gang member. Rodriguez held that a person cannot be found to be an active gang member without proof that he committed a crime in concert with another gang member. Because the facts here did not involve perpetration of an offense with any other gang member, we reduce the offense to carrying a loaded firearm in a public place, a misdemeanor, and remand for resentencing on that count.
Muratalla also makes the following arguments: reliance by the prosecution’s gang expert on hearsay violated Muratalla’s rights under the confrontation clause of the Sixth Amendment; there was insufficient evidence to support the gang enhancement findings; and defense counsel rendered ineffective assistance by conducting deficient voir dire during jury selection, choosing not to make an opening statement, not objecting to evidence of prior crimes, making an inadequate closing argument, and not objecting to the prosecutor’s closing argument. We reject these contentions.

In this matter we have reviewed the petition and the opposition filed by real parties in interest. While real parties’ failure to address the essential merits of the case could be deemed a concession, we have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance with respect to certain issues is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
First, while we have been unable to determine exactly what legal theories real parties intend to present in the cause of action labeled “negligence,” we conclude that it is appropriate to sever out whatever claim real parties make based on petitioners’ alleged misuse of funds and/or the “waste” of real parties’ time and effort. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.) Insofar as real parties may intend to press claims for defamation or the failure to provide insurance coverage, we will deny the petition as petitioners did not address any such claims.[1]
“The primary responsibility for supervising charitable trusts . . . for ensuring compliance with trusts and articles of incorporation, and for protection of assets held by charitable trusts and public benefit corporations, resides in the Attorney General.” (Gov. Code, § 12598; City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613.) It is quite true that in an appropriate case, an action to enforce the terms of a trust may be brought by fiduciaries of the trust or by the direct, identifiable beneficiaries of the trust. (See generally San Diego etc., Boy Scouts of America v. City of Escondido (1971) 14 Cal.App.3d 189.) But that is a far cry from allowing any disgruntled donor to pursue personal litigation seeking personal damages against the current fiduciaries based on alleged breach of the charitable intention. Indeed, real parties’ cross-complaint does not even purport to state a claim on behalf of any charitable organization or the beneficiaries thereof.
We note that this matter does not involve a claim that charitable donations were induced by false promises as to the use of the funds, and we express no opinion on any such claim.
Accordingly, we have no difficulty in determining that, as a matter of law, this claim fails and petitioners were entitled to summary adjudication of the issue.
We grant the petition in this respect.

J.P. (Mother) appeals after the termination of her parental rights to N.P. and L.P. at a Welfare and Institutions Code section 366.26[1] hearing and the ordered permanent plan of adoption.
Mother makes the following claims on appeal: (1) the juvenile court lacked substantial evidence of the wishes of L.P. and N.P. as to whether they understood that adoption would preclude contact with Mother or that legal guardianship was an alternative plan to adoption as required by section 366.26, subdivision (h); (2) the beneficial parent exception to terminating Mother’s parental rights (§ 366.26, subd. (c)(1)(B)(i)) applied to preclude termination of her parental rights; (3) the sibling exception to terminating Mother’s parental rights (§ 366.26, subd. (c)(1)(B)(v)) applied; and (4) the juvenile court erred by finding N.P. was adoptable.[2]
We affirm the juvenile court’s order terminating Mother’s parental rights and finding N.P. and L.P. adoptable.

Defendants and appellants, A.N. (Mother) and C.P. (Father), are the parents of O.P. In this case initiated by plaintiff and respondent, San Bernardino County Children and Family Services (CFS), the juvenile court removed O.P. from the parents’ custody because of the parents’ drug use and domestic violence issues. O.P. was placed with his maternal grandparents. After the parents failed to reunify with O.P., CFS recommended that the maternal grandparents adopt O.P.
At a hearing held pursuant to Welfare and Institutions Code section 366.26,[1] the trial court terminated the parental rights of O.P.’s parents and selected adoption as the permanent plan for O.P. The maternal grandparents are the prospective adoptive parents.
On appeal, Mother argues the court erred by: (1) failing to grant an evidentiary hearing on Mother’s request for change of court order, or section 388 petition; and (2) failing to apply the beneficial parental relationship exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(i). Father joins in Mother’s arguments. We reject these arguments and affirm the court’s orders.

No appearance for Plaintiff and Respondent.
Defendant and appellant Edward Dwayne Brooks appeals after the trial court denied his petition for resentencing under Penal Code section 1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2012)).[1] Defendant filed a notice of appeal on July 24, 2013. We affirm.

Defendant and appellant Nicole Renee Jones pled guilty to one count of felony fraud in obtaining government aid in an amount more than $400.00 (Count 1—former Welf. & Inst. Code § 10980, subd. (c)(2)).[1] Pursuant to the plea agreement, the court reduced count 1 to a misdemeanor upon the People’s motion pursuant to Penal Code section 17, subdivision (b).[2] After a later, contested victim restitution hearing, the court ordered defendant pay $56,952 to the County of Riverside Housing Authority (Housing Authority). On appeal, defendant contends the court was unaware it could grant restitution in less than a full amount if it found compelling and extraordinary reasons for doing so. The People contend the trial court knew it had discretion to impose less than full restitution and did so. We affirm.

Defendant George William Scally appeals his conviction for second degree robbery (Pen. Code, § 211;[1] count 1) as the getaway driver in a robbery. The jury also found true allegations that defendant had two prior strike convictions (§ 667, subds. (d) & (e)(2)(A)) and a prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced defendant to 30 years to life in prison. Defendant appeals the judgment, contending the trial court abused its discretion in denying his Romero[2] motion, requesting the court to strike one or both of his prior convictions under the Three Strikes law. We conclude there was no abuse of discretion and affirm the judgment.

A.H. is the mother of L.V., who turned three years old in November 2013. The juvenile court entered judgment after it terminated parental rights; found that the exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] (the "continuing benefit exception"), did not apply; and ordered adoption as L.V.'s permanent plan.
The mother appeals, first arguing that the court erred when it summarily denied her section 388 petition when it found she had not met her burden to make a prima facie showing of changed circumstances. We conclude the court did not err because the mother did not present evidence of changed circumstances. She next argues that substantial evidence does not support the court's finding that the continuing benefit exception did not apply. We conclude that substantial evidence supports the court's findings and affirm the judgment.

Kathleen Ann Helms pled guilty to four counts of conspiring with another to treat the sick and afflicted without a license, in violation of Business & Professions Code section 2052, subdivision (b). The trial court sentenced Helms to a total term of three years, and ordered Helms to pay approximately $67,500 in restitution to four victims. We affirm the judgment.
II.

Appellant Judith Pedery-Edwards appeals from a judgment entered in favor of defendants JP Morgan Chase Bank, N.A. (Chase) and the Federal National Mortgage Association (Fannie Mae) after the trial court sustained the defendants' general demurrer to her second amended complaint, without leave to amend.
On appeal, Pedery-Edwards, appearing in propria persona, asserts that the trial court erred in concluding that her second amended complaint fails to state any cause of action. After reviewing the operative complaint and considering the parties' arguments on appeal, we conclude that the trial court properly sustained the defendants' general demurrer to the second amended complaint. We further conclude that the trial court did not abuse its discretion in denying leave to amend and dismissing the action in its entirety. We therefore affirm the judgment.

In 1992, as one of the conditions for approving a Final Map for a real estate development, County of San Diego (County) entered into an agreement with Pointe Communities of San Diego, Inc. (PCSD) and Pointe San Diego Residential Community, L.P. (Pointe Residential) requiring PCSD and Point Residential (together Pointe) to construct specified street improvements (the street improvement agreement), and also entered into two other agreements requiring Pointe to build certain water and sewer improvements (collectively the Subdivision Improvement Agreements). The Subdivision Improvement Agreements required completion of the improvements within 730 days of County's approval of the Final Map, but permitted County's Board of Supervisors (Board) to extend the time for completing the required improvements.

Roger Springer was involved in an automobile collision with another driver who was at fault for the accident. The other driver's insurer paid Springer in full for damages to his vehicle and wrote the check jointly to Springer and his selected automobile repair shop. However, the automobile shop failed to repair Springer's vehicle and wrongfully kept the money. Springer then requested his own automobile insurer (Geico General Insurance Company (Geico)) to pay him for the unrepaired damages to his vehicle. Geico denied the claim on the basis that the policy did not cover losses for the automobile shop's wrongful conduct and/or that the policy excluded the claimed losses.
Springer then sued Geico and two related entities seeking a declaration of coverage. After a brief trial based primarily on stipulated facts, the court found Springer did not prove he was "entitled to coverage . . . under the terms of the subject policy of insurance." The court thus entered judgment in defendants' favor. Springer appeals. We affirm.

Guillermo Trujillo was charged by information with robbery (Pen. Code, § 211),[1] assault with a deadly weapon (§ 245, subd. (a)(1)) with an allegation he personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)), and assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)). The information charged gang enhancements as to all counts (§ 186.22, subd. (b)(1)), and alleged a prison prior (§§ 667.5, subd. (b), 668), and a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). The parties entered into a plea bargain; Trujillo pleaded guilty to robbery and admitted the gang enhancement allegation in return for a stipulated term of 16 years. Thereafter, he was sentenced in accordance with the plea agreement. Trujillo subsequently filed a notice of appeal challenging the validity of the plea, alleging he was not given all of the discovery he requested, but the court denied his request for a certificate of probable cause.
Trujillo appeals. We affirm the judgment.