CA Unpub Decisions

Gunther Seibold seeks a refund from the County of Los Angeles of possessory interest taxes relating to a ground lease and a hangar at the Santa Monica Municipal Airport. The trial court concluded that the ground lease was taxable but the hangar was not and entered a judgment awarding Seibold $738.06 plus interest and costs. The court denied Seibold’s motion to set aside the judgment and enter a new judgment (Code Civ. Proc., § 663). Both sides appealed.
The county contends the hangar is a real property improvement and is assessable to Seibold as its owner. Seibold disputes this and contends he is entitled to a refund of all taxes illegally assessed through 2012. He also contends the judgment entered by the trial court fails to resolve all of the issues raised by his operative complaint. We agree with Seibold that the judgment fails to adjudicate his count for declaratory relief and therefore is not a final appealable judgment. We therefore will dismiss the appeals by both parties as premature.

Rony Garcia Almira was charged in an information with two counts of inflicting corporal injury on Sorayda Rodriguez, the mother of his child (Pen. Code, § 273.5, subd. (a)). Represented by appointed counsel, Almira pleaded not guilty to the charges.
On the morning of trial, the court denied as untimely Almira’s motion to continue the trial so he could retain private counsel. According to the evidence at trial on January 29, 2012, Almira punched Rodriguez in the face, giving her a black eye. On or about December 23, 2011, Almira had repeatedly kicked Rodriguez, bruising her legs. Almira testified in his own behalf that Rodriguez had been the aggressor and he had acted in self-defense on both occasions.

P. v. Edwards Brian Drew Edwards, a registered sex offender, sexually assaulted his niece while she was asleep. On October 12, 2011 Edwards was charged in an amended information with assault with intent to commit rape, sodomy and oral copulation (Pen. Code, §§ 220, subd. (a)(1), [1] count 1), residential burglary (§ 459, count 2) and rape of an unconscious person (§ 261, subd. (a)(4), count 3). It was specially alleged as to all counts Edwards had suffered three prior serious or violent felony convictions for residential burglary within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served one separate prison term for a felony (§ 667.5, subd. (b)).[2] Edwards pleaded not guilty to the charges and denied the special allegations.
Represented by appointed counsel, Edwards entered an open plea of no contest to assault with intent to commit rape, sodomy and oral copulation and to burglary and admitted the special allegations on December 13, 2011.[3] Edwards entered his plea and admissions with the understanding the People would forgo amending the information to add two five-year serious felony allegations (§ 667, subd. (a)(1)), and the trial court would consider dismissing two of the alleged prior strike convictions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); § 1385) at the sentencing hearing.

Bryan Jackson, Jr. appeals from a judgment after conviction by jury of one count of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a)).[1] This was a lesser included offense to the charged crime, attempted murder, for which the jury found Jackson not guilty (§§ 664/187, subd. (a)). The jury found true the allegations that Jackson personally used a firearm and committed the offense for the benefit of a criminal street gang. (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)(C).) The trial court sentenced Jackson to 20 years and 6 months in state prison.
Jackson contends the trial court (1) violated his Sixth Amendment right to counsel when it admitted a recorded statement that he made to an undercover police officer while he was in jail (Massiah v. United States (1964) 377 U.S. 201 (Massiah)); and (2) erred when it refused his request for a jury instruction on assault with a deadly weapon as a lesser included offense to attempted murder. We affirm.

Plaintiff Nael Diab appeals from the judgment in favor of defendant Mid Century Insurance Company (Mid Century) after the trial court granted Mid Century’s motion for summary judgment. Diab’s action against Mid Century is an insurance coverage dispute relating to the duty to defend and indemnify him in a tort suit brought by Michelle Nunez (Nunez Action). Diab contends there were triable issues of fact relating to the duty to defend that precluded summary judgment. We agree and reverse the judgment.
Factual background

John Henry Torres' house was sold at a foreclosure sale after he defaulted on a loan secured by a deed of trust on the house. After the foreclosure, Torres (appellant) filed this lawsuit against the lender, Flagstar Bank, FSB (Flagstar), its nominee, Mortgage Electronic Registration Systems, Inc. (MERS), and other entities involved in the foreclosure process. The trial court sustained without leave to amend respondents' demurrer to appellant's third amended complaint. He appeals from the resulting order dismissing the action, contending he alleged facts sufficient to state causes of action for negligence, fraud and wrongful foreclosure because the foreclosure occurred without a notice of default and because the lender concealed the participation of MERS and the Federal National Mortgage Association (Fannie Mae) in the loan and deed of trust. We affirm.

Edward J. Dewey appeals a judgment following his conviction for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))[1] (count 3). Dewey was also charged with murder (§ 187, subd. (a), 189) (count 1) and attempted murder (§§ 664, 187, subd. (a)) (count 2). The information alleged he committed those two offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The jury deadlocked on counts 1 and 2, and the trial court declared a mistrial as to those counts. The court denied Dewey's requests to exclude photographs taken from his cell phone that showed, among other things, Dewey posing with a handgun a few days prior to the date of the charged offenses. We conclude, among other things, that those photographs were properly admitted 1) as proof of the charged offenses, 2) to impeach defense witnesses, and 3) as gang evidence. We affirm.

Defendant and appellant, Keith P. Thomas, appeals from the trial court’s order denying his petition for writ of error coram nobis filed with regard to four superior court cases: Nos. BA036950, A741808, YA045335 and BA047233.[1] We affirm the trial court’s order.

Petitioner and appellant Erica Cox appeals an order denying her petition for writ of mandate. She sought to compel respondent Los Angeles Unified School District (LAUSD) to classify her as one of its permanent employees, effective July 1, 2009, and to provide her with appropriate pay and benefits. We agree with the trial court’s analysis and ruling. We therefore will affirm.

Defendant and appellant Francisco Carvajal (defendant) appeals his conviction of first degree murder. He contends that the evidence was insufficient to support a finding of premeditation and deliberation; and that the evidence was insufficient to support a theory that he aided and abetted the murder or the felonies underlying the prosecution’s felony-murder theory. Defendant also contends that the trial court erred in failing to instruct the jury with CALCRIM No. 549, and that the court erroneously imposed a 10-year gang enhancement rather than a 15-year minimum parole eligibility requirement. We modify the sentence to strike the gang enhancement, but finding no merit to defendant’s other contentions, we affirm the judgment.

Miguel Castro appeals from the judgment following his conviction by jury of three counts of a lewd act upon a child (M.) in violation of Penal Code section 288,[1] with true findings of substantial sexual conduct as to each count (§ 1203.066, subd. (a)(8)), and one count of an attempted lewd act on a child (§§ 664/288). The trial court sentenced him to state prison for an aggregate term of three years. It also ordered him to pay $50,000 restitution to victim M. for her psychological (noneconomic) loss, and $35,255.23 restitution to her parents for their economic loss. Appellant contends that he was deprived of due process because the prosecution failed to preserve potentially exculpatory evidence, and because the trial court ordered direct victim restitution without a jury determination of the amount of the loss. We affirm.

In this consolidated appeal, appellant and employer Lexmark International, Inc. (appellant) challenges a class action $7,777,620 amended judgment entered against it after a court trial.[1] The trial court determined appellant’s vacation policy between 1991 and 2009 constituted a “use it or lose it policy” in violation of Labor Code[2] section 227.3. The appeal raises a number of issues including whether: the class was properly certified; the policy was a lawful “accrual cap”; and damages were properly calculated and/or awarded to all or some of the class members. Appellant also challenges awards of costs in the amount of $145,341.93 and attorney fees in the amount of $5,722,008.
With respect to the judgment as amended, we conclude the trial court erred in calculating the wages to include commissions rather than base rate of pay. In all other respects, the judgment as amended is affirmed. We also affirm the postjudgment awards of costs and attorney fees in their entireties.

We take the following from the Supreme Court’s opinion.
“In March 2000, defendant Jose Leiva was charged with breaking into several cars and stealing property from them. Pursuant to a plea agreement, he pleaded no contest to three counts of burglary of a vehicle. ([Pen. Code,] § 459.) On April 11, 2000, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of three years, which meant that probation would expire on April 11, 2003. Included in the terms and conditions of probation were orders that defendant report to his probation officer within one business day of his release from custody and not reenter the country illegally if he left voluntarily or was deported. Because defendant was not a legal resident of the United States, he was deported to El Salvador on the day he was released from jail.
“On September 21, 2001, defendant failed to appear at a scheduled probation violation hearing based on an allegation that he had failed to report to the probation department. The trial court summarily revoked defendant’s probation based on the failure to report and issued a bench warrant for defendant’s arrest. It appears that neither the probation department nor the trial court knew that the reason defendant had failed to report or to appear in court was that he had been deported.
“Seven years later, on November 10, 2008, defendant appeared in the trial court after his arrest on the outstanding warrant, following a traffic stop. The trial court re‑called the warrant and ordered that probation remain summarily revoked and that defendant be remanded into custody. It calendared a formal probation violation hearing for February 13, 2009.

A.S. was removed from her mother’s custody based primarily on mother’s substance abuse and domestic violence issues. A.S. was placed in foster care, and both parents were provided with services. Only her father, M.S. (Father), substantially completed his reunification plan. He also successfully reunified, in separate proceedings, with A.S.’s half brother. The court nevertheless terminated services to Father on the basis that A.S. had a “frail emotional condition” and thus could not be safely returned to Father within the 18-month time limit. Father filed this petition seeking a writ compelling the court to vacate its order, claiming the Sonoma County Human Services Department (Department) did not provide adequate services and no substantial evidence supported the trial court’s finding of substantial risk of detriment to A.S.’s emotional well-being. We agree that the Department did not meet its burden of proving substantial risk of detriment if A.S. is returned to Father, and that there is no substantial evidence adequate services were provided to Father. We grant the petition.