CA Unpub Decisions

The only issue in this case is whether a parole revocation fine (Pen. Code, § 1202.45),[1] which was imposed on appellant after the trial court sentenced him to life without the possibility of parole, was unauthorized. For reasons that follow, we have determined that it was. Accordingly, we strike the parole revocation fine and otherwise affirm.

Plaintiff and appellant Larry Nixon appeals from the judgment entered on his claims for breach of contract and negligence against his neighbors Adrienne Lafler and Marvin Bucholz (collectively, respondents) and on respondents’ cross-claims against Nixon for breach of contract. This dispute among neighbors arose out of the rebuilding of a wall between their adjacent properties. The project was subject to a written agreement between the neighbors. Nixon contends that the trial court erred in denying his claims based on respondents’ failure to remove dirt left on his property, and in granting respondents’ breach of contract claim based on Nixon’s refusal to allow them to access his property to retrieve the dirt which they needed to replace on their own property. He also contends that the trial court erroneously awarded respondents damages for their costs to purchase replacement dirt. We find that substantial evidence supported the trial court’s findings and thus affirm the judgment.

In a case engendered by the 2008 housing crisis and the ensuing Home Affordable Modification Program (HAMP),[1] Ara Haritunian appeals from the judgment entered after the trial court sustained without leave to amend demurrers to his second amended complaint. Haritunian sued Wells Fargo Bank, N.A. and Wells Fargo & Co. (collectively Wells Fargo) for breach of contract and other related claims, based upon a purported mortgage modification agreement. The trial court found that Haritunian failed to state a claim and entered a judgment of dismissal. We affirm.

Terran Maurice Wyatt appeals a judgment after conviction by jury of one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one count of being under the influence of a controlled substance (id., § 11550, subd. (a)). In a bifurcated proceeding, the jury found true allegations that Wyatt suffered a prior conviction for transporting cocaine base in 2007 (id., § 11352, subd. (a)) and for assault with a firearm in 1993 (Pen. Code, § 245, subd. (a)(2)). The trial court found Wyatt suffered a prior prison term. It sentenced him to four years in state prison for the possession offense, consisting of the midterm doubled for the prior strike (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (b) & (c)(1)); a consecutive one-year term for the prior prison term (id., § 667.5, subd. (b)); and a concurrent 90-day term in jail for being under the influence of a controlled substance.

Elisa Bertha Sherman appeals a judgment following her conviction for possession for sale of a controlled substance‑‑methamphetamine (Health & Saf. Code, § 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). We conclude, among other things, that 1) the trial court did not err by admitting evidence of Sherman's prior convictions; 2) the trial court gave proper guidance to jurors about audio recordings of conversations that were admitted into evidence and a written transcript that contained English translations of Spanish language conversations; and 3) the trial court should have given a sua sponte instruction on an uncharged conspiracy, but the error was harmless. We affirm.

Thomas R. appeals from the juvenile court’s order sustaining a petition and finding true the allegations that Thomas R., a minor, possessed a firearm and live ammunition. Thomas R. contends that the trial court erred in denying his motion to suppress his statement to police officers. We agree and reverse.

Plaintiff John C. Sarno (Plaintiff) appeals from the judgment entered in favor of Defendant Wells Fargo Bank, N.A. (Wells Fargo) after the trial court sustained Wells Fargo’s demurrer without leave to amend. We affirm.
In November 2010, Wells Fargo provided Plaintiff a Good Faith Estimate (GFE) for a home loan. The GFE quoted an initial interest rate of 4.25 percent. Closing was to occur at the end of November, but it was postponed for two months. Immediately prior to the closing, Wells Fargo allegedly informed Plaintiff that the interest rate had increased to 4.625 percent. Plaintiff accepted the new interest rate and proceeded with the closing.
Over a year later, Plaintiff sued Wells Fargo, claiming the GFE constituted a binding agreement to make a loan at the listed 4.25 percent interest rate and that, under the GFE’s terms, the quoted interest rate was “available indefinitely.” The trial court rejected this contention, as do we.
The federal regulations governing GFEs expressly provide, “[i]f the interest rate has not been locked, . . . loan terms related to the interest rate may change.” (24 C.F.R. § 3500.7(f)(5).) Plaintiff admits he did not lock the 4.25 percent interest rate quoted in the GFE. And, contrary to Plaintiff’s contention, the GFE cannot reasonably be interpreted as a binding agreement to make a loan at the quoted interest rate for an indefinite period of time. The judgment is affirmed.
Because this appeal is from a judgment following the sustaining of a demurrer without leave to amend, we recite the material facts pled in the complaint without passing on the truth of the allegations, but disregard contentions, deductions and legal conclusions. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Petitioner Jeffrey Pearlman was employed by the Bureau of Street Services of the City of Los Angeles Department of Public Works (the Department). The Department terminated his employment following a hearing held pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194. Petitioner appealed that decision to the Board of Civil Service Commissioners (the Board), which upheld the Department’s decision. He then petitioned the superior court for a writ of mandate to compel the Board to set aside his dismissal. After conducting an independent review, the trial court denied the petition, finding substantial evidence to support the Board’s decision. We hold that the trial court’s ruling was supported by substantial evidence, and so affirm the judgment.

Oscar Cervantes was charged with (count 1) rape of Jennifer H. in violation of Penal Code section 261, subdivision (a)(2); (count 2) assault with intent to commit a felony against Jennifer H. in violation of section 220; (count 3) lewd act on Jacqueline H., a child under 14 years of age in violation of section 288, subdivision (a); and (count 4) lewd act on Tanya H., a child under 14 years of age in violation of section 288, subdivision (a).[1]
It was further alleged as to counts 1, 3 and 4 that Cervantes committed an offense specified in section 667.61, subdivision (c) against more than one victim within the meaning of subdivisions (b) and (e)(5) of that section and that at the time of the offense Cervantes was 14 years of age or older within the meaning of Welfare and Institutions Code section 602, subdivision (b)(2).
Cervantes waived a jury and the case was tried by the court. The court found Cervantes guilty on all charges and found all special allegations to be true. The court sentenced Cervantes to the middle term of four years on count 2 and three consecutive 15-year-to-life terms on counts 1, 3 and 4 to run consecutively to the term imposed on count 2.
We affirm.

Plaintiff Adrienne Robinson appeals from an order of dismissal entered after a demurrer was sustained to the first amended complaint alleging the wrongful foreclosure of her residence. We reverse because plaintiff alleged that she received no notice of the increase in her monthly payments on which the foreclosure was based.

A jury convicted defendant Basim Elias Zayer of making criminal threats (Pen. Code, § 422, subd. (a)), a felony.[1] The jury could not reach a verdict on a misdemeanor battery charge. On appeal, defendant contends there was insufficient evidence of criminal threats and, in the alternative, that the jury should have been instructed on the lesser included offense of attempted criminal threat. Defendant also contends the trial court erred when it instructed the jury with CALCRIM No. 361 (a testifying defendant’s failure to explain or deny evidence against him). We find no prejudicial error and affirm defendant’s conviction, but order the judgment modified to include additional presentence conduct credits.

Ricky Isaac appeals from the judgment entered following his conviction by jury on one count of commercial burglary (Pen. Code, § 459)[1] and one count of petty theft with three prior convictions of certain offenses (§§ 666, subd. (a), 484, subd. (a)). We order the judgment modified to impose mandatory fees under section 1465.8 and Government Code section 70373. In all other respects the judgment is affirmed.
On May 15, 2012, around 8:30 p.m., Piry Chavrin was working at the Fiore Market Cafe in South Pasadena, helping with a cooking class that was being held after regular business hours. The class was being held in a patio on the side of the building. The front door of the building was closed but not locked. Chavrin heard a bell that rings when the cash register is opened, so he went to the front room to check who had opened it. He saw appellant taking money out of the register. Chavrin yelled, “Hey,” startling appellant.
Appellant ran out the door, and Chavrin chased him, calling for the cafe owner, William Disselhorst. Chavrin and Disselhorst chased appellant down the street, tackled him, and held him until the police arrived. When appellant stood up, there was a pile of money under him. The amount of money matched the amount taken from the cash register.
Appellant was charged by information with second degree commercial burglary (§ 459), petty theft (§ 484, subd. (a)), and petty theft with three priors (§ 666, subd. (a)). The information further alleged that appellant had suffered eight prior convictions and served prison terms pursuant to section 667.5, subdivision (b).
Appellant made a Marsden motion, seeking to replace his counsel. (People v. Marsden (1970) 2 Cal.3d 118.) After holding a hearing, the court denied his request. Appellant thereafter refused to attend the trial. Appellant was deemed to be voluntarily absent pursuant to section 1043. The jury was instructed that appellant was unable to be there and that it should not make any assumptions in his favor or against him based on his absence.

A mother challenges the removal of her children from her custody and an order for supervised visitation. She argues the juvenile court should have appointed independent counsel for the children once a conflict arose as to the attorney jointly representing the children who made intermittently conflicting factual statements and expressed differing wishes. Mother also argues that the attorney ineffectively represented one of the children by focusing on one child and ignoring another’s views. We will dismiss the appeal. Many of the issues mother raises are now moot; the remainder have been forfeited by virtue of her failure to raise them in the trial court.

This is the second appeal in this matter. In the first appeal, Kevin Frampton appealed from the judgment entered in favor of Meribear Productions, Inc. (Meribear), dba Meridith Baer & Associates, following a court trial.[1] Frampton and Meribear sued each other for breach of contract. The judgment awarded damages to Meribear in the amount of the contract price - $68,000. In an unpublished opinion (Frampton v. Baer (Jan. 17, 2012, B228002), we reversed the $68,000 damages award and remanded the matter for retrial on the amount of damages. We affirmed in all other respects.
After retrial, the court awarded Meribear damages of $41,480. Frampton appeals from the judgment incorporating this award, and Meribear cross-appeals. We affirm.