CA Unpub Decisions

Defendant David Anthony Rivera appeals from his conviction on one count of residential burglary, following a jury trial. We will affirm the conviction.

Defendant Mark Gregory is serving a five-year prison term for purchasing a car with fraudulent documents and an invalid check. Defendant argues the trial court should have granted his motion for a mistrial because jurors heard a partially redacted audio tape recording of him admitting to the above, but during which the investigating officer stated “I know a little bit about some other stuff that you have done in the past . . . .” As discussed below, the trial court did not abuse its discretion when it found that this vague comment was not significant enough in the context of the trial to alert the jury that defendant had prior convictions for theft.

Defendant Allison Kay Graham is serving 15 years in prison after pleading guilty to reduced charges for shooting at a group of people who were standing in front of a house. In this appeal, defendant seeks a total $80 reduction in her fines based on ex post facto principles. We conclude that defendant waived this argument by failing to raise it in the trial court.

Defendant Jaime Ayala Delgado appeals from the sentence the trial court imposed after remand by this court. We ordered a limited remand because at sentencing the trial court mistakenly believed it had no discretion to impose concurrent terms. Defendant contends the trial court was required to have conducted a full sentencing hearing on remand, at which it was required to consider imposing probation. As discussed below, the remand was limited to the trial court exercising its discretion as to whether to impose concurrent or consecutive terms. Therefore, the sentence imposed on remand is affirmed.

Defendant and appellant, Justin Anthony Simons, telephoned Sean McKelvey. McKelvey hung up on Simons, which Simons viewed as an act of disrespect. Simons responded by going to McKelvey’s house with two accomplices and, among other criminal acts, pistol whipped McKelvey and his housemate, stole numerous items, and threatened to kill the residents if they called the police.[1] A jury convicted Simons of robbery, attempted robbery, assault with a firearm, making criminal threats, and negligent discharge of a firearm; it also found true certain firearm enhancement allegations.[2] In a bifurcated trial, Simons admitted allegations that he had a prior serious offense conviction and a prior strike. He was sentenced to 26 years in prison.

Objectors and appellants Weil & Drage, APC, Jean A. Weil, and Anthony D. Platt appeal from an order directing them to pay $5,000 in monetary sanctions. They contend the trial court abused its discretion in issuing the order because the allegedly frivolous motion for summary adjudication was based on newly discovered facts that were not asserted in a prior motion for summary judgment.
Plaintiff and respondent Rudrich Family Management (Rudrich Family) has not filed a respondent’s brief in this matter. We therefore consider the appeal on the basis of the record, the opening brief and oral argument, if any. (Cal. Rules of Court, rule 8.220(a)(2).)

Plaintiff and appellant Henry Colangelo (Colangelo) initiated this civil rights action against defendant and respondent police officer James Clay (Clay) and others,[2] based on a physical altercation in October 2006. Colangelo claimed he was forced to move from his home and out of state because of police intimidation. Because Colangelo had moved out of state, Clay sought and on September 1, 2009, was granted an order requiring Colangelo to post an undertaking in the amount of $35,700.00 pursuant to Code of Civil Procedure[3] section 1030, in order to ensure that Clay could recover costs and fees if he prevailed. Colangelo failed to post the bond and the trial court dismissed his action. Colangelo appeals.

On February 24, 2010, the County of San Bernardino filed this action against defendant and appellant Elena Gross to require her to pay child support for her two minor children. Numerous proceedings and appeals occurred over the next two years.
On January 6, 2012, this court considered the various notices of appeal and civil case information statements on file. We ordered this appeal to proceed only as to the notice of appeal filed April 22, 2011. That notice of appeal only concerns the trial court’s order entered on March 24, 2011. As discussed below, we subsequently modified this order by an order filed on August 31, 2012.

A jury convicted defendant, Anthony Grissom, of driving/taking a car without the consent of the owner (Veh. Code, § 10851, subd. (a)) and found true an allegation that he had been previously convicted of the same offense (Pen. Code, § 666.5, subd. (a)).[2] The jury further found true allegations that defendant had been convicted of six prior offenses for which he served prison terms (§ 667.5, subd. (b)) and a strike prior (§ 667, subds. (c) & (e)(1)). He was sentenced to prison for 12 years and appeals, claiming the court erred by granting his request to represent himself and by denying his request for appointment of counsel. He also claims that the prosecutor engaged in misconduct justifying reversal of his conviction. We reject his contentions and affirm.

Defendant Gerardo Luciano Tapia repeatedly molested his stepdaughter C. from the time she was 9 years old until she was 14 years old. Defendant was found guilty of one count of attempted aggravated sexual assault and seven counts of lewd and lascivious acts with a minor under the age of 14 years through the use of force, duress, menace, or violence.
Defendant now claims on appeal as follows:
1. His due process rights to notice of the charges was violated because new and distinct crimes were presented at trial that were not presented at the preliminary hearing.
2. The trial court abused its discretion by imposing the upper term on four of the counts based on improper aggravating factors.
3. The trial court’s imposition of the upper term on four counts based on several aggravating factors that were not presented to the jury violated his federal constitutional rights.
4. The Penal Code section 290.3 fine must be reduced because imposition of the current fine violates ex post facto laws.
We agree that the fine imposed under Penal Code section 290.3 must be reduced. We agree with the People that the trial court erroneously failed to impose other fines. We will order the judgment modified to correct those errors. We find no other error.

Che R. Rivera, Sr. (Rivera or decedent) died of injuries sustained when his neck became pinned between the rail of the boom lift in which he was standing and an I-beam where he was checking his welds. Plaintiffs, Rivera’s surviving wife and child, filed an action for wrongful death and personal injury against the designer or manufacturer of the boom lift, and Load Center, Inc. (Load Center), the company that owned, maintained, and leased the boom lift that was involved in the accident. Robert Ettleman, the coworker who was injured while trying to rescue Rivera, sued the same defendants for personal injuries he sustained. At a consolidated trial, Load Center was permitted to introduce evidence that the plaintiffs’ decedent had alcohol and marijuana in his system at the time of the accident. The jury trial concluded with a defense verdict, finding that Rivera was 100 percent responsible for the accident. Plaintiffs appeal.
On appeal, plaintiffs argue that the trial court’s ruling on the motion in limine to exclude evidence of the toxicology results was an abuse of discretion.[1] We affirm.

On April 18, 1997, Byron Cifuentes was charged with discharging a firearm in a grossly negligent manner (Pen. Code,[1] § 246.3; count 1) and possessing a firearm as a felon (§ 12021, subd. (a)(1); count 2). Cifuentes pleaded guilty to possessing a firearm as a felon, and the court dismissed count 1. The court granted Cifuentes three years of probation.
Fifteen years later, Cifuentes moved to vacate the judgment and withdraw his guilty plea under section 1016.5. He contended neither the court nor his counsel advised him of the immigration consequences that attached to his guilty plea in 1997. The People agreed to allow the plea to be withdrawn on the condition Cifuentes enter a guilty plea to count 1 (which is a "strike" offense). The court granted Cifuentes's motion, and Cifuentes entered a guilty plea to count 1 nunc pro tunc to 1997. Two days later, the court held a chambers conference with both counsel and ultimately stayed its order granting the motion. On May 1, 2012, the court rescinded its order. On September 25, 2012, Cifuentes moved again to vacate the judgment and withdraw his guilty plea under section 1016.5, which a different court denied.
Cifuentes appeals, contending the court lacked jurisdiction to rescind its original order granting Cifuentes's first section 1016.5 motion, and judicial estoppel prevents the People from arguing the court improperly granted the motion. Cifuentes does not challenge the denial of his motion in September 2012 on the merits. He only challenges the May 1, 2012 order rescinding the earlier action by the trial court allowing the change of plea.

R.H. and Darnell H., who had been designated as de facto parents and prospective adoptive parents for their granddaughter, L.S., seek writ review of juvenile court orders removing L.S. from their home under Welfare and Institutions Code section 366.26, subdivision (n).[1] Darnell contends he was denied due process because the juvenile court denied his and R.H.'s requests for appointed counsel in the underlying proceedings concerning L.S. R.H., who was represented by retained counsel, joins in Darnell's contentions.[2] We deny the petitions and deny the request for a stay of the proceedings.

At the six-month review hearing in the juvenile dependency case of Enrique A., Jr., the court terminated the reunification services of his mother, Danielle H. Danielle appeals, contending substantial evidence does not support the findings she was provided reasonable services and failed to comply with her case plan. She also contends Enrique, Jr.'s, best interests required that she be provided an additional six months of services, so the court abused its discretion by terminating reunification services. We affirm.