CA Unpub Decisions

The children in this matter were declared dependent children of the court as a result of their parents’ no contest pleas to a petition alleging Jonathan R., the presumed father (father), disciplined one of the children in an excessive manner. The court did not remove the children from their home, but ordered the children to remain with their mother on the condition father not live in the residence or have unsupervised contact with the children. The court ordered the Orange County Social Services Agency (SSA) to provide father with enhancement services. Father appeals, contending the court erred in failing to order “reunification services” for him. We affirm.

Mahaffey & Associates (Mahaffey) sued Angus Petroleum Corporation (Angus), its former client, along with Louis Zylstra, Jr., and Zylstra & Associates Engineering, Inc. (collectively defendants) for declaratory relief. Mahaffey sought declarations from the court regarding whether it could represent another client who was now adverse to Angus. The court sustained defendants’ demurrer to Mahaffey’s second amended complaint without leave to amend, ruling that no actual controversy existed and that Mahaffey was merely seeking an advisory opinion. We agree and therefore affirm.

Plaintiffs and appellants Alan Shaun Rossberg (Shaun) and Brenda Rossberg (Brenda; collectively Rossbergs)[1] appeal from a judgment dismissing their complaint after the trial court sustained a demurrer by defendants and respondents Bank of America, N.A. (BofA) and U.S. Bank, National Association, as trustee for the certificate holders of Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series 2007-C (U.S. Bank; collectively Defendants). The Rossbergs sued Defendants to prevent them from selling the Rossbergs’ home at a nonjudicial foreclosure sale after the Rossbergs defaulted on two loans secured by deeds of trust. The Rossbergs alleged several causes of action against Defendants based on BofA’s unperformed promises to modify the Rossbergs’ loans and Defendants failure to comply with the statutory requirements for conducting a nonjudicial foreclosure.
We affirm the trial court’s order sustaining Defendants’ demurrer to the first amended complaint because the Rossbergs failed to adequately allege the existence of an enforceable agreement to modify their loans or that Defendants failed to comply with the statutory requirements for conducting a nonjudicial foreclosure. We also affirm the trial court’s order denying leave to amend because the Rossbergs failed to specifically show how they could amend their pleading to state a cause of action. Finally, because we affirm the trial court’s judgment dismissing the Rossbergs’ action, we dismiss as moot the Rossbergs’ petition for writ of mandate to prevent Defendants from evicting them from their home during this appeal.

Defendant Ramon Guzman was charged with one count each of first degree burglary, assault with a deadly weapon with an allegation he inflicted great bodily injury on the victim, and second degree robbery. A jury acquitted defendant of burglary, but found him guilty of the other charges and found the great bodily injury allegation to be true. The trial court sentenced defendant to concurrent three-year terms on each count and ordered him to pay Gustavo E. over $46,000 in restitution. Defendant contends the trial court committed reversible error by allowing the prosecution to cross-examine defense witnesses about their gang affiliations, admitting gang-related evidence, including that of a gang expert, and then instructing the jury on the use of the expert’s testimony. He also attacks the restitution award on the ground the trial court failed to determine whether the amount of medical expenses claimed was the amount actually paid by the victim. We agree the trial court committed prejudicial error in overruling defendant’s relevancy and Evidence Code section 352 objections to much of the gang-related evidence admitted in this case and on the use of the gang expert’s testimony. Consequently, we need not determine the correctness of the court’s restitution ruling.

Petitioner, J.K. (mother), filed an extraordinary writ petition (Cal. Rules of Court, rule 8.452)[1] in propria persona regarding her minor children, H.K. and S.K. (collectively “the minors”). Mother seeks relief from the juvenile court’s order issued at the status review hearing setting a Welfare and Institutions Code section 366.26 hearing.[2] We will deny the petition.

Kimberly S. appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26)[1] to her four-year-old daughter A.D. Kimberly contends she established termination would be detrimental to A.D. because of their parent-child relationship (§ 366.26, subd. (c)(1)(B)(i)). We disagree and affirm.

Appellant Andres Aguilera was found not competent to stand trial by the Kings County Superior Court pursuant to Penal Code[1] section 1368, and criminal proceedings were suspended in 2012. He filed the instant appeal in which he challenged the length of his commitment and the sufficiency of the evidence to support a medication order. During the pendency of this appeal, appellate counsel informed us that appellant has since been found competent and criminal proceedings were reinstated. He thereafter entered a plea, admitting to a violation of section 4501.1 (prisoner assault on a nonprisoner), and was sentenced to a prison term on June 28, 2013. Given the current status of this case, we will dismiss this appeal as moot and affirm the judgment.

Summer P. (Mother) appeals from the juvenile court’s jurisdictional and dispositional findings on a Welfare and Institutions Code section 300[1] petition, which required, inter alia, that one child remain in a foster home. Mother contends there was insufficient evidence to support the juvenile court’s jurisdictional finding that the child was at a substantial risk of sexual abuse or of suffering serious physical harm. Further, Mother maintains the evidence does not support the juvenile court’s order removing the child from her custody pursuant to section 361, subdivision (c)(1); the Stanislaus County Community Services Agency (Agency) failed to prove there was a continuing substantial danger to the child and failed to prove there was no reasonable means by which the child could have been protected short of removal. We affirm.

The court adjudged appellant, J.A., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging him with receiving stolen property (Pen. Code, § 496d, subd. (a))[1] and resisting arrest (§ 148, subd. (a)(1)). On appeal, appellant contends the evidence is insufficient to sustain the court’s true findings as to each of these offenses. We affirm.

Appellant/defendant Robert Lee Lockhart pleaded no contest in two separate cases to second degree robbery (Pen. Code,[1] § 211) and carrying a concealed weapon (§ 12025, subd. (b)(6), and admitted an on-bail enhancement (§ 12022.1). He was sentenced to the stipulated term of four years eight months.
On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will affirm.

Defendant Cheryl Lynn Price (defendant) was convicted of two counts of resisting a peace officer. She contends that each offense was incident to a single objective. Therefore, she argues, the sentencing court erred in imposing a 30-day jail sentence on each count. (See Pen. Code, § 654, subd. (a).) We disagree and affirm.

In People v. Peck (Oct. 21, 2011, F061314) [nonpub. opn.], this court remanded appellant Curtis Daniel Peck’s case for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) because Peck had indicated dissatisfaction with counsel and the trial court failed to conduct a hearing. This appeal is from the trial court’s denial of his Marsden motion after remand. Peck contends the trial court failed to make a satisfactory inquiry of his complaints and failed to determine whether his trial counsel properly advised him. We reject his contentions and affirm the judgment.

Defendant Ernest Vasquez stands convicted, following a jury trial, of resisting a peace officer and proximately causing serious bodily injury (Pen. Code,[1] § 148.10; count 1) and resisting an executive officer (§ 69; counts 2 & 3). He admitted having suffered five prior “strike” convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Sentenced to 50 years to life in prison and ordered to pay various fees, fines, and assessments, he now claims the trial court committed various errors that require resentencing. We affirm.

Thearon Kennord Mister appeals from the judgment after he pled guilty to felony driving under the influence (DUI) with prior DUI convictions (Veh. Code, §§ 23550-23152, subd. (a)), and admitted three prior DUI convictions in Case No. 2009044181. In Case Number 2009042688, appellant pled guilty to one count of felony DUI with prior DUI convictions (Veh. Code, §§ 23550-23152, subd. (a)), admitted three prior DUI convictions, and admitted a prior strike conviction (Pen. Code, § 667, subd. (c)(2)). Pursuant to the negotiated plea, appellant was sentenced to an aggregate term of 40 months state prison and ordered to pay a $240 restitution fine (Pen. Code, § 1012.4, subd. (b)), a $240 parole revocation fine (Pen. Code, § 1202.45), and a $2,319 fine in each case.