CA Unpub Decisions

Defendant Brandon J. Valdez appeals from his conviction of first degree murder and possession of a firearm by a felon. He contends it was error: (1) to admit into evidence an identification based on an impermissibly suggestive photographic lineup; and (2) to fail to instruct that a prosecution witness was an accomplice. We modify the judgment and otherwise affirm.[1]

A modification decision.

Defendant and appellant, Pierre Lamont Matchem, appeals his conviction for petty theft (2 counts), resisting a peace officer (2 counts) and possession of a firearm by a felon, with prior serious felony conviction and prior prison term enhancements (Pen. Code, §§ 484, 148, subd. (a)(1), 12021 (former), 667, subd. (a) – (i), 667.5).[1] He was sentenced to state prison for a term of five years and six months.
The judgment is affirmed as modified.

Librado Navarro (Navarro) and Mauricio Vasquez (Vasquez) appeal from the judgments entered following a jury trial. Navarro was convicted of two counts of felonious assault (former Pen. Code, § 245, subd. (a)(1)[1]; counts 2 and 4) and of hit and run, a misdemeanor (Veh. Code, § 20002, subd. (a); count 3). Vasquez was convicted of two counts of felonious assault (§ 245, subd. (a)(1); counts 1 and 2) and of simple assault, a misdemeanor (§ 241, subd. (a); count 4). As to each appellant, the trial court imposed two concurrent, lower terms of two years in state prison. For the misdemeanors, it sentenced appellants to respective terms of five days and one day in the county jail, with credit for time served.
Navarro contends the jury verdicts do not conform to the prosecutor’s factual theory of the case, and appellants join in making a number of contentions concerning the sentencing proceedings.

This case returns to us after we decided two prior appeals in the same matter. Larisa Khazan (Khazan) and Boris Khazan (collectively plaintiffs) brought this action against Felix Braynin (Braynin), Vera Braynin, Vladislav Chernoguz (Chernoguz), and Biana Chernoguz (collectively defendants). Plaintiffs sought judicial foreclosure of a deed of trust on a property in San Francisco, alleging that defendants had defaulted on a promissory note secured by the deed of trust. They also alleged that defendants had defaulted on a second promissory note, committed fraud, and violated the Racketeer Influenced and Corrupt Organizations Act, 18 United States Code section 1961 et seq. (RICO). Defendants cross-complained for slander of title and cancellation of cloud on title. Plaintiffs prevailed on their causes of action for judicial foreclosure, declaratory relief, and default on the second promissory note and on the cross-complaint, but were unsuccessful in their fraud-based and RICO causes of action. The trial court then awarded plaintiffs contractual attorney fees in the amount of $1,370,604.
In one of the earlier appeals, Khazan v. Braynin (March 30, 2009, A113035) [nonpub. opn.] (Khazan I), we affirmed the judgment on the merits. On the same date, we reversed the order determining the amount of attorney fees and directed the trial court to reconsider plaintiffs’ fee request. (Khazan v. Braynin (March 30, 2009, A114369) [nonpub. opn.] (Khazan II). The trial court has now done so. Defendants appeal the resulting decision, and plaintiffs have filed a cross-appeal challenging the trial court’s ruling on when interest on the award should begin to accrue.
We reject defendants’ challenges to the amount of the attorney fee award, and conclude the trial court correctly ruled that interest should run from the date of the fee award on remand.

Louie Diaz and Gabriel Campos were convicted of multiple offenses after they entered a house, shot one person, and kidnapped another. Each appeals and joins in the arguments of the other. We modify the judgment as to Diaz to stay a sentence enhancement under Penal Code[1] section 12022.7, but otherwise affirm the judgments.

The issues on appeal concern sanctions for violations of the discovery process. We affirm the order granting a terminating sanction for the repeated misuse of the discovery process. We reverse the order awarding a monetary sanction in the amount of $1,240 for a single discovery abuse because the court did not hold a noticed hearing prior to awarding that sanction.

Without affording the plaintiff notice and an opportunity to be heard, the trial court on its own motion dismissed plaintiff’s civil rights action against the City of Long Beach and certain of its employees on the grounds the statute of limitations had run and plaintiff had not complied with the government claims statute. The occasion for the court’s ruling was a hearing on an Order to Show Cause (OSC) why the complaint should not be dismissed for failure to file a proof of service of the summons and complaint within 60 days from the filing of the complaint. (Cal. Rules of Court, rule 3.110(b).)[1]

On June 4, 2009, defendant Guadalupe Lopez Duran forcibly raped and sodomized his cousin, J., who then was 10 years and 11 months old. The People charged defendant with two counts of violating Penal Code[1] section 288.7, subdivision (a), which provides that “[a]ny person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.” A jury found defendant guilty of both counts, after which the trial court sentenced him to state prison for a total term of 50 years to life.
Defendant contends the judgment must be reversed because the evidence is insufficient to support the jury’s determinations that J. was “10 years of age or younger” and that he was “18 years of age or older” within the meaning of section 288.7, subdivision (a), at the time the crimes were committed. Defendant also asserts evidentiary error and instructional error, claims he was denied the effective assistance of trial counsel and contends his sentence constitutes cruel and/or unusual punishment. We affirm.

Defendant LeAndre McClanahan appealed after he was placed on probation following his conviction of one count of second degree burglary. (Pen. Code, §§ 459, 460.)[1] His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find none and affirm.

Appellant Scott Patrick Shelton was previously found not guilty by reason of insanity. He appeals an order imposing a two-year extension of his commitment to Napa State Hospital (NSH) pursuant to Penal Code section 1026.5, subdivision (b).[1] Shelton contends that his defense counsel’s waiver of jury trial on the extension petition was invalid. We affirm.

Plaintiffs John N. Chokatos and Giancarlo Maranghi appeal judgments of dismissal in favor of several defendants following orders sustaining without leave to amend demurrers to plaintiffs’ third amended complaints for fraud (complaints). We consolidated the appeals for review.
Plaintiffs allege individuals and related corporations conspired to operate a “Ponzi scheme” in which money was borrowed from plaintiffs with false promises that the loans were secured by deeds of trust. We conclude the court rightly sustained demurrers brought by several limited liability companies because plaintiffs failed to allege adequately facts that support the alter ego or single enterprise doctrine under which plaintiffs seek to hold the affiliated companies responsible for the acts of other companies. The deficiency may be cured, however, and we thus conclude that the court erred in denying plaintiffs leave to amend their pleadings.

Defendant pleaded guilty to charges in Mendocino County. Prior to the plea, his probation in Santa Clara County had been revoked on several grounds, including the conduct underlying the various offenses charged in Mendocino County. After he was sentenced to prison on the probation revocation, defendant was transferred to the custody of Mendocino County, served the remainder of his Santa Clara sentence, and was released. Only then did he plead guilty to certain of the Mendocino County charges. At sentencing, defendant sought and was denied custody credits for the time served in Mendocino County following his probation revocation. We affirm the denial of credits.

Appellant appeals after a jury convicted him of two counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)[1]). After the jury returned its verdict, appellant admitted the habitual sex offender allegation as to both counts (§ 667.71). On appeal, appellant contends the trial court erred in admitting the preliminary hearing testimony of two of appellant’s prior sex abuse victims on the ground the prosecution failed to exercise due diligence in securing the witnesses’ presence at trial (Evid. Code, § 1291). We affirm.