CA Unpub Decisions

Police stopped Hector Abraham and Eugene Yi in their van, suspecting them of intending to steal the third row of seats from inside parked SUVs outside a shopping mall. Inside the van, the officers found a third row of seats taken from an SUV and a woman’s wallet. They arrested Abraham and Yi.

Monica M. (mother) appeals from the juvenile court orders terminating parental rights to her son, Edgar, and establishing adoption as his permanent plan (Welf. & Inst. Code, § 366.26).[1] Mother contends that the finding of Edgar's adoptability is not supported by substantial evidence.[2] We affirm.

Defendant Ginger Lindsay Gonzalez was convicted by jury of possession for sale of cocaine base (Health & Saf. Code, § 11351.5 (count 1)), transporting cocaine base (Health & Saf. Code, § 11352, subd. (a) (count 2)), possession for sale of methamphetamine (Health & Saf. Code, § 11378 (count 3)), and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a) (count 4)). In a separate proceeding she admitted suffering a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant was sentenced to the low term of three years in county jail on count 1, plus a consecutive three-year term for the prior conviction, for a total term of six years. The trial court also imposed a concurrent two-year sentence on count 3, and imposed but stayed sentences on the remaining counts pursuant to Penal Code section 654.[1] Various fines and court fees were imposed and defendant was awarded 34 days of presentence custody credit.
Defendant contends that the trial court abused its discretion in admitting the underlying facts of the prior drug conviction. We disagree and affirm the judgment. We remand with directions to amend the abstract of judgment.

James K, father of 9-year-old J. K., appeals from the orders of the juvenile court denying his petition for modification (Welf. & Inst. Code, § 388)[1] and terminating his parental rights (§ 366.26). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The section 300 petition
In May 2009, when J. was four years old, her 22-year-old sister C. took her to the hospital to be examined after J. announced she did not want to return to James’s house because he put his “thingy in her mouth, booty . . . he attempted to put his penis in her vagina.” During this time, the child’s mother was hospitalized from a stroke that left her unable to speak[2] and J. had been visiting C. The Department of Children and Family Services (the Department) detained J. and placed her with C.
Early in the dependency, J. did not want to see James during visits, explaining she was still James’s “ ‘friend,’ ” but she would cease to be if he “ ‘does that again.’ ” James’s conduct during visits appeared to make J. “nervous,” “stiff,” and “rigid,” and the monitor was obliged to redirect his behavior. Unsolicited, J. volunteered to the children’s social worker that she liked visiting with James and loved him, and “ ‘he only does that at night time.’ ” Asked what she meant, J. responded, “ ‘he touched my cuca.’ ” She added, “ ‘he didn’t want to do it, but he did.’ ”

Alex M. (father) appeals from the order adjudicating his son, V.O., a person described by Welfare and Institutions Code section section 300, subdivisions (a) and (b).[1] Father contends the true finding on the subdivision (a), nonaccidental harm, allegation, was not supported by substantial evidence. He does not challenge the true finding on the identical subdivision (b), failure to supervise, allegation. We affirm.

Mother, L.T., appeals from the juvenile court’s dispositional order granting custody of minor E.T. to his biological father, C.M. Father admits he never achieved presumed father status, but nonetheless contends the appeal is moot because the court subsequently removed E.T. from his custody upon the filing of a supplemental petition alleging neglect by father. Mother also contends the court’s visitation order, providing that “[t]he Department is to create a detailed visitation order for mother[,]” is prejudicially vague. The Department of Children and Family Services (Department) filed a letter brief “taking no position” on mother’s challenge to the custody order, and “not oppos[ing] a remand for a proper visitation order.” We find this appeal is not rendered moot by the court’s later order removing E.T. from his placement with C.M. Because C.M. was a mere biological father, and was not entitled to presumed father status, the order granting him custody was in error. We also agree that the visitation order failed to adequately specify the frequency and duration of mother’s visits, and reverse and remand for further proceedings.

Appellant Scott M. (Father) was involuntarily hospitalized after he had been drinking for four consecutive days and expressed suicidal thoughts. Father’s girlfriend arranged for the children Ashley M. and Robert M. to go with their mother, Danielle B. (Mother) on the day Father was hospitalized. This was his third hospitalization during the past year. The juvenile court sustained a petition pursuant to Welfare and Institutions Code section 300, subdivision (b),[1] which alleged that Father’s alcohol abuse and history of mental and emotional problems placed the children at risk. Father appealed, asserting that substantial evidence did not support the juvenile court’s jurisdictional findings.
We affirm. The Los Angeles County Department of Children and Family Services (Department) offered sufficient evidence to show there was a substantial risk the children would suffer serious physical harm or illness from Father’s inability to provide regular care for them due to his alcohol abuse and mental health issues.

Defendant Richard Matthew Azzara appeals the judgment of conviction on charges of identity theft, forgery, unlawful access card activity, and drug possession. Azzara contends that (1) insufficient evidence supported his conviction for identity theft; (2) the trial court violated his constitutional rights by denying his request for a continuance on the first day of trial so that he could retain private counsel; and (3) the trial court erred in failing to hold a Marsden hearing. We find no error and affirm the judgment.

Defendant and appellant Stephen Boyd was convicted by jury of two counts of dissuading a witness by force or threat, two counts of assault with a semi-automatic firearm, and one count of making criminal threats. Special allegations that defendant personally used a firearm in the commission of the offenses and that the crimes were committed for the benefit of a criminal street gang were found true.
Defendant contends the trial court committed prejudicial error by failing to instruct sua sponte on all elements of the offense of dissuading a witness by force or threat. Defendant further contends his prior juvenile adjudication should not have been used as a qualifying prior to enhance his sentence under the Three Strikes law. Defendant concedes the Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen) has rejected his argument, and that we are bound to follow Nguyen, but seeks to preserve the issue for further consideration.
We conclude there was no instructional error with respect to the two counts of dissuading a witness, and, pursuant to Nguyen, we reject defendant’s claim of sentencing error. We therefore affirm.

Plaintiffs Eric Nelson, Juan Mejoredo, and Robert Dowling sought certification of a class action against Southern California Gas Company (the Gas Company). The plaintiffs alleged the company failed to provide meal and rest breaks in accordance with California law, and committed overtime wage violations. The trial court denied certification on the grounds that the plaintiffs failed to establish common questions would predominate in the action or that class treatment would be the superior means of resolving the litigation. We affirm the trial court order on class certification but reverse the order to the extent it purported to deny plaintiffs’ representative claim under the Labor Code Private Attorney Generals Act of 2004 (Lab. Code, § 2698 et seq.; PAGA).

After Angel Juarez twice unsuccessfully attempted to enforce a stipulation for entry of judgment between Agustin Ramirez and Horacio Ramirez (collectively, Ramirezes) on the one hand and Juarez on the other, filed in 2000, Juarez filed a new complaint in 2011 against the Ramirezes for breach of contract, open book account, and account stated based on the stipulation. Thereafter, the trial court sustained the Ramirezes’ demurrer to the complaint on the basis that it was barred by the statute of limitations. Juarez appeals, contending that the cause of action for breach of contract was not barred by the statute of limitations because the parties made oral modifications that extended the term for performance of the stipulation until 2009 when a payment was made pursuant to the modifications, or until 2010 when Juarez was terminated as the manager of the Ramirezes’ band, Los Caminantes (band). Juarez also argues that the modifications did not need to be in writing because eight partial payments constituted executed oral agreements and the oral modifications fell outside the statute of frauds. Juarez further contends that the causes of action for open book account and account stated were not barred by the statute of limitations because the Ramirezes’ continued payments “gave rise to an executed oral agreement.” Juarez finally argues that because he can amend the complaint to allege valid causes of action, the court erred in sustaining the demurrer without leave to amend. We conclude that the complaint was barred by the statute of limitations and that the court did not abuse its discretion in sustaining the demurrer without leave to amend. We affirm the judgment.

Appellants Thomas G. Adam and his wife Janice Adam[1] appeal from a declaratory relief judgment arising from Andrew M. Adam's (Thomas's brother) sale and leaseback of a 321-acre ranch. Thomas argues, among other things, that the trial court erred in finding that Andrew breached no fiduciary duty and was not required to provide a more detailed accounting. We affirm.

Defendant and appellant Montroutch Croutch (defendant) appeals from his criminal threat and attempted criminal threat convictions. Defendant contends that the trial court erred in failing to suspend the proceedings to determine his competence to stand trial. He also assigns three instructional errors: instructing the jury with CALCRIM No. 358; failing to instruct the jury regarding one of the elements of attempted criminal threat; and in failing to give a jury instruction regarding voluntary intoxication. Defendant further contends that his conviction of attempted criminal threat was unsupported by substantial evidence; that the trial court erred in refusing to appoint new counsel; that reversal is required due to the cumulative effect of the enumerated errors; and defendant requests a review of the in camera Pitchess proceeding.[1] We find no merit to defendant’s assignments of error and no cumulative effect requiring reversal. Our review of the in camera proceedings reveals no abuse of discretion. We thus affirm the judgment.

Plaintiffs/appellants Sylvester Stewart (“Stewart”) and Ken Roberts (“Roberts”) brought suit against a large number of individuals and entities, including those involved in this appeal, defendants/respondents Sony Music Entertainment (“Sony”), Warner/Chappell Music, Inc. and Warner-Tamerlane Publishing Corp. (“Warner”), Broadcast Music, Inc. (“BMI”), and First California Bank (“Bank”). Through multiple causes of action, plaintiffs seek recovery of past and future royalty payments for musical works authored and produced by plaintiff Stewart, who rose to prominence in popular music as “Sly Stone” in the late 1960’s and early 1970’s. Stewart was also the lead performer of the works, as “front man” for the band known as “Sly and the Family Stone.” Roberts was Stewart’s friend and one-time manager, and an assignee of some of Stewart’s royalty rights.
The court below sustained these defendants’ demurrers without leave to amend. We will affirm, except as to plaintiff Roberts’ breach of contract and declaratory relief causes of action against defendant BMI. Roberts’ conversion claim against BMI was properly dismissed. Plaintiff Stewart’s several causes of action against Sony, Warner, and BMI were also properly dismissed by the trial court.
Following oral argument before this Court, both plaintiffs dismissed their appeals as to defendant Bank.