CA Unpub Decisions

Plaintiffs Michael Fuller and Karen Gehrig, a married couple living in Oroville, initiated this action in November 2010 against First Franklin Financial Corporation (First Franklin), Bank of America, and Sacramento First Mortgage (SFM).[1] SFM was plaintiffs’ loan broker, First Franklin was the original lender funding the purchase of their home in June 2006, and Bank of America is First Franklin’s successor in interest on the loan.[2] In their fourth effort at stating a cause of action, under direction from the trial court “to provide further allegations of late discovery of the [actionable] facts,” plaintiffs alleged defendants First Franklin and SFM, pursuant to a scheme of predatory lending, made material misrepresentations and fraudulent concealments of circumstances in the appraisal of the residence and in the terms of the loan in order to maximize their profit, which the plaintiffs did not discover until late 2009. Plaintiffs listed several counts (inexactly denominated “causes of action” (see Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1076, fn. 1)) that included theories of deceit, negligence, unfair business practices, and SFM’s breach of its fiduciary duty to them, and civil conspiracy (which is not an independent cause of action in any event but only a theory for establishing vicarious liability (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 557(1), p. 706 (Witkin)).
First Franklin and SFM separately demurred. Basing its January 2012 rulings on the statute of limitations, the trial court issued an order of dismissal in favor of First Franklin, and an order sustaining SFM’s demurrer as to all causes of action without leave to amend.
Plaintiffs filed notices of appeal from the two orders. SFM subsequently moved for judgment on the pleadings on the count of negligence.[3] The trial court granted the motion for lack of opposition, and entered a judgment of dismissal as to SFM in June 2012. We deem the premature notice of appeal from the trial court’s order sustaining SFM’s demurrer to have been filed immediately after the subsequently entered judgment for SFM. (Cal. Rules of Court, rule 8.308(c); see In re Gray (2009) 179 Cal.App.4th 1189, 1197 [this court discusses equities in favor of deeming notice to be “premature” once record prepared and briefing completed after entry of judgment].)
Plaintiffs argue that they had sufficiently alleged delayed discovery of facts that defendants had purposely withheld from them in order to induce them to enter into the now defaulted loans. We agree. We shall thus reverse the judgments of dismissal with directions to overrule the demurrers.

The juvenile court sustained a petition pursuant to ADDIN BA xc <@st> xl 39 s FOJJBC000001 l "Welfare & Institutions Code section 602" Welfare and Institutions Code section 602 charging the minor, Oscar S., with possession of burglary tools ( ADDIN BA xc <@st> xl 16 s FOJJBC000002 xpl 1 l "Pen. Code, § 466" Pen. Code, § 466),[1] vandalism ( ADDIN BA xc <@osdv> xl 16 s FOJJBC000006 xpl 1 l "§ 594, subd. (a)" § 594, subd. (a)), and prowling ( ADDIN BA xc <@osdv> xl 16 s FOJJBC000007 xpl 1 l "§ 647, subd. (h)" § 647, subd. (h)). He was adjudged a ward of the court and placed on probation. He appeals these findings and orders. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. ( ADDIN BA xc <@cs> xl 36 s FOJJBC000003 xhfl Rep xpl 1 l "People v. Wende (1979)25 Cal.3d 436" People v. Wende (1979) 25 Cal.3d 436; ADDIN BA xc <@cs> xl 40 s FOJJBC000004 xhfl Rep xpl 1 l "In re Kevin S. (2003)113 Cal.App.4th 97" In re Kevin S. (2003) 113 Cal.App.4th 97.) We shall affirm.

Following a bench trial, the trial court found defendant Cory Wallace Fernandez guilty of attempting to murder one housemate and assaulting another with a firearm, along with another offense and two firearm enhancements.[1] (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(2), & former § 12021, subd. (a)(1).) It sentenced him to state prison.
On appeal, defendant contends there is insufficient evidence of his intent to kill the attempted murder victim. He also maintains that he is entitled to additional custody and conduct credit, a point the People concede. We shall affirm the judgment as modified.

Defendant Sandra Lee Coulter pled guilty to two counts of first degree burglary (Pen. Code, § 459 -- counts 1, 10)[1] in exchange for the dismissal of eight other criminal counts and was sentenced to serve concurrent terms of four years for each conviction in state prison. On appeal, defendant contends the trial court abused its discretion in finding her ineligible for probation. We reject the contention and affirm the judgment.

Defendant Timothy Fisher appeals his conviction for felony vandalism and the state prison sentence imposed for that conviction. He contends the trial court did not preserve a record adequate for appellate review, in that the record does not contain the written jury instructions. Next, he contends the trial court committed reversible error in failing to instruct the jury that felony vandalism requires damage of over $400. Even assuming the court erred in the instructions given, on the evidentiary record before us, we find the instructional error harmless under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]. With regard to his sentence, defendant contends, under the principles of equal protection, the October 1, 2011, amendments to Penal Code section 1170 must be given retroactive effect, and accordingly he must be sentenced to county jail rather than state prison.[1] Based on our decision in People v. Lynch (2012) 209 Cal.App.4th 353, we reject this contention as well.

A jury convicted defendant Hasson Kassem of arson of an inhabited structure, but acquitted him of attempted murder. The trial court sentenced him to three years in state prison. Defendant contends the trial court abused its discretion when it denied his request for an Evidence Code section 402 hearing concerning the admissibility of a witness’s statements to a police officer.[1] We conclude the trial court correctly determined that defendant’s concern regarding the witness’s limited ability to speak English goes to the weight to be accorded the evidence, not its admissibility. We will affirm the judgment.

Defendant Robert Joseph Zmrzel sexually abused his adopted daughter, S., on numerous occasions over an eight-year period beginning when she was eight years old. Defendant was convicted by jury of one count of continuous sexual abuse of a child (count 1), two counts of oral copulation of a person under 16 years of age (counts 8 & 9), two counts of committing a lewd or lascivious act on a child of 15 years (counts 10 & 11), one count of attempting to commit a lewd or lascivious act on a child of 15 years (count 13 (lesser included)), and one count of simple battery (count 12 (lesser included)). After dismissing counts 8 and 9, as those crimes were alleged to have occurred during the time period covered by count 1, the trial court sentenced defendant to state prison for an aggregate term of seven years, eight months.

Defendant Porfirio Hernandez appeals from the judgment entered following his no contest plea to a violation of Penal Code section 288.5, subdivision (a), continuous sexual abuse. He contends the trial court violated the plea agreement by sentencing him to more than eight years in prison. His claim is without merit and we affirm the judgment.
Defendant was charged in a four-count information with committing various sex crimes. On February 27, 2012, he pled no contest to one count of continuous sexual abuse in exchange for a state prison commitment of 16 years. This appeal followed.
Defendant’s court-appointed appellate counsel filed a brief requesting that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On January 23, 2013, we sent a letter to defendant advising him that he had 30 days within which to submit any issues that he wished us to consider. To date, we have received no response.
The reporter’s transcript reveals that defendant was told on two separate occasions during the taking of the plea that he would be sentenced to prison for a term of 16 years. He stated that he understood the terms of the agreement, and he was sentenced accordingly.
We are satisfied that no arguable issues exist, and defendant has received effective appellate review of the judgment entered against him. (Smith v. Robbins (2000) 528 U.S. 259, 277-279; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

Chance Sherwin Burgess appeals from a post-judgment order revoking and reinstating his probation with modified terms and conditions.
In 2009 Burgess was charged in a felony complaint with willfully inflicting corporal injury upon Quanae Williams, the mother of his child (Pen.Code, § 273.5, subd. (a), [1] count 1), first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21), count 2), petty theft (§ 484, subd. (a), count 3) and misdemeanor vandalism (§ 594, subd. (a), count 4).
Burgess waived his constitutional rights to a preliminary hearing and a trial and entered a plea of no contest to inflicting corporal injury as charged in count 1. In accordance with the negotiated agreement, the trial court suspended imposition of sentence and placed Burgess on five years of formal probation on condition he serve 180 days in county jail and participate in one year of domestic violence counseling and one year of parenting classes. The remaining counts were dismissed on the People’s motion.

Defendants Demoria Randolph Jackson and Devin Caress Murphy appeal from the judgments entered following their convictions by jury of first degree murder and attempted willful, deliberate, and premeditated murder, with findings that each defendant and a principal personally discharged a firearm which proximately caused great bodily injury or death to the victims and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang.[1] (Pen. Code, §§ 187, subd. (a), 664, 187, subd. (a), 12022.53, subds. (b), (c), (d) & (e)(1), 186.22, subd. (b)(1)(C).)[2] After a court trial, each defendant was found to have suffered a prior serious felony conviction within the meaning of sections 667, subdivisions (b)-(i), 1170.12, subdivisions (a)-(d) (collectively, the “Three Strikes” law), and 667, subdivision (a). Each defendant was sentenced to 119 years to life.
Defendants contend their speedy trial rights were violated, heavy police presence in the courtroom denied them a fair trial, and they are entitled to additional presentence custody credits. Jackson also alleges the prosecutor’s excessive use of his gang moniker and the admission of Murphy’s out-of-court statements denied him a fair trial, the trial court’s failure to admit exculpatory hearsay statements denied him a right to present a defense, and cumulative error warrants a new trial. Murphy urges that if the judgments are affirmed, liability under the court’s direct restitution order must be made joint and several.[3]
We will direct the superior court to amend each defendant’s abstract of judgment and, as modified, affirm.

In these consolidated actions, appellants Certain Underwriters at Lloyd’s of London, etc. (Underwriters) appeal from the trial court’s order denying their petitions to compel arbitration pursuant to Code of Civil Procedure section 1281.2[1] and the terms of a marine insurance policy issued to respondent Bart Enterprises International, Ltd. After the insured property was allegedly stolen in transit, a dispute arose between the parties over the actual value of the property and the proper method of valuation under the policy. Underwriters filed a petition to compel an appraisal of the value of the property pursuant to an arbitration clause in the policy. In response, Bart filed a declaratory relief action seeking an order that the policy was a valued policy under the Insurance Code and that the valuation stated in the policy was conclusive between the parties in the adjustment of the loss.[2] The trial court denied Underwriters’ petitions to compel arbitration, finding that the dispute about whether the policy was a valued or open policy was the proper subject of an action for declaratory relief. We conclude that the trial court should have granted the petitions, and pursuant to section 1281.2, subdivision (c), exercised its discretion to decide whether to stay either the judicial or appraisal proceedings. We therefore reverse and remand for further proceedings consistent with this opinion.

Y.W. (“Mother”), the mother of dependent child Y.W., appeals from one jurisdictional finding of the juvenile court under Welfare and Institutions Code section 300, and she also contends that her rights were violated by errors made by the court at the adjudication. We need not address Mother’s challenge to the jurisdictional finding in light of the uncontested other bases for jurisdiction; and although the court erred in failing to give the required advisements and take proper waivers at the adjudication, the error was harmless under any standard. Accordingly, we affirm the judgment.

Plaintiff/appellant Arthur Hunter filed the present action against his landlord, defendant/respondent Naseem Majdalani, on August 23, 2010. He filed the operative third amended complaint, alleging causes of action for breach of quiet enjoyment, negligence, and breach of habitability, on December 9, 2011. On May 22, 2012, the trial court dismissed the action “for plaintiff’s failure to comply with orders dated 4/17/12, 11/9/11, and 2/5/12.”
Plaintiff contends that the trial court dismissed his action because he failed to file a fourth amended complaint and that such dismissal was an abuse of discretion. Defendant responds that plaintiff’s action was dismissed because plaintiff failed to comply with the trial court’s order to serve verified responses to written discovery, and he urges that the dismissal was within the court’s discretion.

Erick M. appeals from the juvenile court’s order declaring him a ward of the court after finding he had committed misdemeanor vandalism. Erick contends, and the Attorney General concedes, he was improperly ordered to provide a DNA[1] sample as a condition of probation. We strike that portion of the juvenile court’s order and otherwise affirm.