CA Unpub Decisions

A jury convicted defendant Jesus Damian Zapata of felony false impersonation (Pen. Code, § 529, subd. (a)(3) (formerly § 529, subd. 3, hereafter former section 529(3); all further statutory references are to this code unless otherwise indicated), but found him not guilty of carrying a concealed weapon in a vehicle, and street terrorism. The trial court thereafter found true allegations defendant had 11 prior serious or violent felony convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)(A)) and had served a prior prison term (§ 667.5, subd. (b)). It dismissed the allegations of two prior serious felonies (§ 667, subd. (a)(1)) and sentenced defendant to an indeterminate term of 25 years to life, plus a one-year term under section 667.5, subdivision (b).
Defendant contends his false impersonation conviction should be reversed because substantial evidence does not support it; section 148.9 is a more specific statute that precludes conviction under former section 529(3); the court erred in failing to instruct sua sponte on the lesser included offense of attempted false impersonation and refusing to reduce the offense to a misdemeanor; and that the prosecution of this case, along with the case against him in Los Angeles County for attempted murder, violated section 654. He further argues he is entitled to automatic resentencing under the recently passed Proposition 36 and principles set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). We agree with defendant’s last contention and remand the matter for resentencing but in all other respects affirm the judgment.

Plaintiff Thomas D. Rowley appeals a judgment entered in favor of defendants U.S. Bank National Association (U.S. Bank) and U.S. Bancorp.[1] Rowley claims the court erred by granting defendants’ motion for summary judgment, declining to consider tardy supplemental opposition papers, and refusing Rowley’s request to continue the hearing to permit additional discovery. We affirm.

Appellant Jose Joaquin Guzman argues there is insufficient evidence to support his conviction for attempted murder. We disagree and affirm the judgment.

A jury convicted defendant Billy Jhonathan Ruiz of the following: two counts of kidnapping (Pen. Code, § 207, subd. (a));[1] two counts of second degree robbery (§§ 211, 212.5, subd. (c)); two counts of assault with a firearm (§ 245, subd. (a)(2)); one count of making a criminal threat (§ 422); and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)).[2] The jury found to be true allegations that: as to counts 1 through 4, defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b) & (c)); and as to counts 5, 6, and 7, defendant personally used a firearm (§ 12022.5, subd. (a)).[3] The trial court sentenced defendant to 25 years and eight months in prison.
Defendant argues on appeal that the court improperly instructed the jury by failing sua sponte to provide an accident instruction (CALCRIM No. 3404) with regard to defendant’s discharge of a firearm enhancement. Defendant also argues the court erred by instructing the jury that the defense of voluntary intoxication (CALCRIM No. 3426) does not apply to a personal and intentional discharge of a firearm enhancement (§ 12022.53, subd. (c)). Because we conclude the court did not commit error, we affirm.

In our prior opinion, we held cross-defendants Tien Le (Mr. Le) and his former-wife, Dieu-Hoa Le (Mrs. Le), breached their fiduciary duty to cross-complainants Newland Pharm, Inc. dba Newland Pharmacy (Newland) and Lieu Pham by failing to give them the right of first refusal before attempting to sell to a third party, in violation of corporate bylaws. (Le v. Pham (2010) 180 Cal.App.4th 1201, 1203, 1211.) Upon remand for further proceedings to determine damages, the trial court found Pham and Newland’s “claims as to lost profits and wages are speculative and unsupported by any credible evidence” and entered judgment for the Les on the cause of action for breach of fiduciary duty.
Pham and Newland contend the court erred in concluding they had not met their burden of proof on damages. We agree. The judgment is reversed and the matter remanded to the trial court for a new trial on damages only.

Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

A jury found defendant Leobardo Mendoza guilty of rape in concert, forcible rape, false imprisonment, and unlawful sexual intercourse with a minor. On appeal, defendant contends: (1) the court erred in admitting needless gang evidence, denying defendant due process and a fair trial; (2) defendant was denied his Sixth Amendment right of confrontation because the presence of a support person during the complaining witness’s testimony lacked any particularized showing of need; (3) the prosecutor committed four instances of misconduct; (4) the court erred in failing to instruct on juror unanimity with respect to the charge of rape in concert; (5) the written pinpoint instruction on gang evidence was overbroad and unfair; (6) the court erred in failing to sua sponte instruct the jury that evidence of an oral admission of a defendant should be viewed with caution; (7) failure to allege or at least secure instructions and jury findings as to the age of the victim under the rape counts violated state law and further denied defendant due process of law and the right to a jury determination on a fact increasing the maximum term; (8) the statutory rape conviction must be reversed because it is based on the same act of intercourse as relates to the rape conviction; and (9) the cumulative effect of these errors deprived defendant of due process and the right to fair trial by an impartial jury. We will affirm the judgment.

Defendant Christian Lawrence Bailon argues that he should be awarded additional pre-sentence custody credits for days served on or after October 1, 2011, even though he committed his crime prior to that date. As discussed below, the Legislature specifically made the increased credits applicable only to those who committed their crime on or after October 1, 2011, and this election does not violate defendant’s right to Equal Protection.

Defendant Steven Leslie Dennis appeals from his 2011 conviction for robbing a bank in 2007, and his 60-year third-strike prison sentence, arguing the People failed to prosecute him within the three-year statute of limitations. The People concede, and we agree. The judgment of conviction is reversed.

Defendant Charles Gregory Callion killed two teenagers in a car accident while driving drunk and is serving a life term after a jury convicted him of the resulting charges. Defendant challenges the trial court’s decision to admit into evidence the details, rather than the mere fact, of his most recent drunk driving conviction from 2001. As discussed below, the trial court did not abuse its discretion when it admitted the evidence, and so we affirm the conviction.

In a dissolution of marriage proceeding, Michael A. Beyer (husband) appeals judgment entered following a contested trial.[2] Husband contends the trial court erred in vacating the spousal support termination date entered in a stipulated interlocutory order. Husband also challenges the trial court’s denial of his request for Epstein[3] credits and reimbursement for education expenses and overpaid child support. We conclude the trial court had jurisdiction to eliminate the spousal support termination date, and there was no abuse of discretion in doing so. Additionally, we conclude the trial court did not abuse its discretion in denying husband’s request for Epstein credits or for reimbursement of education costs or child support paid in August and September 2008. The judgment is affirmed.

In September 2008, when B.H. was two years old, his mother, L.H., noticed bruises on B.H.’s face and body when he returned from visitation with L.S. (father). L.H.’s former foster mother[1] reported the injuries to the San Bernardino County Sheriff’s Department. A sheriff’s deputy examined the child, determined there was an ongoing custody dispute, and concluded there was no need for further investigation. A month later, B.H. received a devastating head injury while in the care of his father which will permanently disable him.
L.H., as guardian ad litem, filed a lawsuit against the County of San Bernardino, the City of Yucaipa, Deputy Sheriff Kimberly Swanson, and her supervisor, Sergeant Jeff Bohner,[2] for violation of the Child Abuse and Neglect Reporting Act (CANRA), for not cross-reporting his injuries to the Department of Children and Family Services (DCFS). The trial court granted summary judgment in favor of the public entities and employees (the County defendants); plaintiff appealed.
On appeal, plaintiff claims (1) there were triable issues of material fact as to whether the sheriff’s deputy had a mandatory duty to cross-report suspected child abuse to DCFS, and (2) the court erred in ruling that the county and the sheriff’s deputy were immune from liability for their discretionary functions.

In September 2008, when B.H. was two years old, his mother, L.H., noticed bruises on B.H.’s face and body when he returned from visitation with L.S. (father). L.H.’s former foster mother[1] reported the injuries to the San Bernardino County Sheriff’s Department. A sheriff’s deputy examined the child, determined there was an ongoing custody dispute, and concluded there was no need for further investigation. A month later, B.H. received a devastating head injury while in the care of his father which will permanently disable him.
L.H., as guardian ad litem, filed a lawsuit against the County of San Bernardino, the City of Yucaipa, Deputy Sheriff Kimberly Swanson, and her supervisor, Sergeant Jeff Bohner,[2] for violation of the Child Abuse and Neglect Reporting Act (CANRA), for not cross-reporting his injuries to the Department of Children and Family Services (DCFS). The trial court granted summary judgment in favor of the public entities and employees (the County defendants); plaintiff appealed.
On appeal, plaintiff claims (1) there were triable issues of material fact as to whether the sheriff’s deputy had a mandatory duty to cross-report suspected child abuse to DCFS, and (2) the court erred in ruling that the county and the sheriff’s deputy were immune from liability for their discretionary functions.

Julia Algara, plaintiff, was terminated from her employment at Automobile Club
of Southern California (Automobile Club), after multiple extensions of her medical leave of absence. She sued for disability discrimination, failure to accommodate and failure to engage in the interactive process under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) The superior court granted Automobile Club’s motion for summary judgment after determining that plaintiff was terminated for a nondiscriminatory purpose. Plaintiff appealed.
On appeal, plaintiff argues: (1) There is insufficient evidence to support the trial court’s finding that the termination was for a nondiscriminatory reason; (2) the termination violated FEHA for lack of reasonable accommodation or interactive process. We affirm.