CA Unpub Decisions

On May 23, 2012, a felony complaint charged defendant and appellant Henry Eason with one count of unlawful driving or taking of a vehicle under Vehicle Code section 10851, subdivision (a). The complaint also alleged that defendant had suffered one strike prior conviction, within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant entered a plea of guilty to the single count and admitted both enhancements on June 27, 2012. Based on a Vargas[1] waiver, the plea was structured so that defendant would be sentenced to seven years in state prison at the time of the plea, but when defendant returned to court on August 14, 2012, he would be resentenced to a three-year term provided there were no violations. It was also agreed that case No. 3004199HE would be dismissed.

This is an appeal by defendants and appellants, J.T. (mother) and E.T. (father), from the trial court’s order under Welfare and Institutions Code section 366.26 terminating their parental rights to their daughters, C. and M.[1] Both parents contend the trial court erred in terminating their parental rights because the exception to parental rights termination set out in section 366.26, subdivision (c)(1)(B)(i), applies in this case. Mother and father also contend the trial court abused its discretion when it denied father’s request to continue the section 366.26 hearing so that he could file a section 388 petition.
We conclude their claims are meritless. Therefore, we will affirm the judgment.

On April 2, 2012, an information charged defendant and appellant John Dumas with a single count of possession of marijuana in a penal institution. (Pen. Code, § 4573.6.) The information also alleged that defendant (1) suffered six prior qualifying strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)); and (2) served five prior prison terms (Pen. Code, § 667.5, subd. (b)).
The jury found defendant guilty of count 1 on July 5, 2012. Thereafter, defendant admitted the prior strike convictions and prior prison term allegations. On August 24, 2012, the trial court denied defendant’s motion to dismiss the strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and imposed an indeterminate sentence of 25 years to life in state prison and a determinate sentence of five years in state prison. That same day, a notice of appeal was filed.
Thereafter, on October 19, 2012, the trial court vacated defendant’s sentence, and granted defendant’s Romero motion with respect to five of the six prior strike convictions. Defendant was then sentenced to a term of nine years in state prison, consisting of the low term of two years (doubled) on count 1, plus one year for each of the five prior prison term allegations to run consecutive to count 1. A second notice of appeal was filed on December 3, 2012.

Acting in pro. per., defendant and appellant Aaron Brandon Watson pled no contest to stalking. (Pen. Code, § 646.9, subd. (b).)[1] In return, the remaining allegations were dismissed, and defendant was placed on felony probation on various terms and conditions. Subsequently, defendant violated the terms of his probation by committing a petty theft. Defendant’s probation was then revoked, and he was sentenced to three years in county jail. On appeal, defendant argues that he should be allowed to withdraw his no contest plea, because the trial court applied an improper standard in determining whether he was competent to represent himself and to enter his no contest plea. We reject this contention and affirm the judgment.

On July 20, 2010, a felony complaint charged defendant and appellant Antonio Estrada Atilano with oral copulation of an unconscious person in violation of Penal Code[1] section 288a, subdivision (f) (count 1).
On May 9, 2012, a jury found defendant guilty of attempted oral copulation of an unconscious person in violation of sections 664 and 288a, subdivision (f), a lesser included offense as to count 1.
On July 6, 2012, the trial court sentenced defendant to serve the midterm of three years in state prison. The trial court awarded defendant credit for time served, and imposed various fines and fees. The court also advised defendant that he had a lifetime obligation to register as a sex offender under section 290.
On July 12, 2012, defendant filed a timely notice of appeal.

A jury found defendant and appellant Saviour Samuel guilty of one count of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a), count 1),[1] and three counts of assault with means of force likely to produce great bodily injury (GBI) (§ 245, subd. (a)(1), counts 2, 4 & 5).[2] The jury also found true that defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) in the commission of counts 1 and 2. Defendant was sentenced to a total term of five years in state prison with credit for time served. Defendant’s sole contention on appeal is that the trial court abused its discretion when it found the case was not unusual for a grant of probation. We reject this contention and affirm the judgment.

Defendant Gloria Carrasco appeals from judgment entered following jury convictions for grand theft (Pen. Code,[1] § 487, subd. (a); counts 1-4). The convictions arose from four catering contracts in which defendant agreed to provide catering services at El Imperio Restaurant (El Imperio). Then, at the last minute, right before the date of each party, defendant notified her clients that they could not use the restaurant and did not refund any of their money. The trial court sentenced defendant to three years formal probation and 90 days in jail.
Defendant contends the trial court erred in granting the prosecution’s Batson-Wheeler motion and denying defendant’s related motion for mistrial. Defendant also asserts there was insufficient evidence to support her four grand theft convictions and the trial court committed instructional error by not sua sponte instructing the jury on the contract defenses of frustration of purpose and failure of consideration. Defendant additionally argues the trial court erred in failing to instruct the jury that it must deduct the value of defendant’s contract expenditures from any sums defendant received from the victims. Finally, defendant argues the trial court committed prejudicial error by incorrectly instructing the jury that the threshold amount for grand theft was in excess of $400.
We conclude there was no prejudicial error or cumulative error, and therefore affirm the judgment.

A petition was filed alleging that Marcus B. fell within the meaning of Welfare and Institutions Code section 602 because he violated Penal Code[1] section 273.5, subdivision (a), felony infliction of corporal injury on the mother of his child (count 1); section 422, felony threats (count 2); and sections 236 and 237, subdivision (a), felony false imprisonment (count 3).
On Marcus's motion, the court dismissed count 2. The court sustained the petition, reducing count 3 to a misdemeanor. However, the court declined to reduce count 1 to a misdemeanor.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Marcus the opportunity to file his own brief on appeal but he has not responded.

In exchange for what the guilty plea form indicated was a stipulated prison sentence of 15 years to life plus 10 years, Robert Cano Montelongo pleaded guilty to the murder of Stephen Board in violation of Penal Code section 187, subdivision (a) (undesignated statutory references will be to the Penal Code), and admitted a gun use enhancement allegation (§ 12022.53, subd. (b)).[1]
After new counsel was appointed to represent him, Montelongo filed an opposed motion to withdraw both his guilty plea and his admission of the gun use allegation based on his claim that his former counsel hurried him into accepting the plea bargain and, as a consequence, he mistakenly believed he would be sentenced to a state prison term of 15 years, not a life term. Following a hearing, the court denied the motion. The court then sentenced Montelongo to a state prison term of 15 years to life for the murder conviction plus 10 years for the gun use enhancement.
On appeal Montelongo challenges the order denying his motion to withdraw his guilty plea and his admission of the gun use allegation, contending (1) the court erred in denying his motion because his plea was involuntary and the product of duress, and (2) his former attorney rendered prejudicially ineffective assistance of counsel. For reasons we shall explain, we reject these contentions and affirm the order and judgment.

Plaintiffs Ken Bates and his wife Karen Bates[1] (together the Bateses) appeal a postjudgment order granting a motion for statutory attorney fees brought by defendants Nancy Hurwitz Kors, Ph.D., who is a registered adoption facilitator, and her limited liability company ANAFS, LLC (together the Kors defendants). This matter arose after the Bateses decided to pursue adoption of a baby, entered into an adoption facilitation agreement (hereafter the agreement) with the Kors defendants, and then brought suit against the Kors defendants and the birthparents, Andrea and Cory Lee[2] (together the Lees, who are not parties to this appeal), after Andrea allegedly canceled the adoption before the twins she was carrying were born. The Bateses filed their complaint in the superior court despite provisions in the agreement requiring that any dispute or claim between the Bateses and the Kors defendants arising out of the agreement first be mediated or arbitrated.

The San Diego County District Attorney's Office filed a juvenile petition under Welfare and Institutions Code[1] section 602 alleging Anthony J. committed three lewd and lascivious acts upon a child under the age of 14 (Pen. Code, §288, subd. (a); counts 1, 2, & 3), and unlawfully engaged in misdemeanor sexual intercourse with her (Pen. Code, §§ 17, subd. (b)(4); 261.5, subd. (a); count 4). Anthony admitted the allegation that he committed misdemeanor sexual intercourse. The remaining allegations were dismissed.

Edward Rosenberg, a tenured teacher with the San Diego Unified School District (District), was placed on administrative leave following allegations of sexually inappropriate conduct involving a 16-year-old student. Following an administrative hearing before the District's Commission on Professional Competence (Commission), Rosenberg was dismissed. Rosenberg sought relief in the superior court and appeals that court's order denying his petition for writ of administrative mandate to compel the District to set aside the Commission's dismissal. We affirm the order.

This is the third round of appeals in this case. In 2010 we reversed a judgment for P&D Consultants, Inc. (P&D) in excess of $109,000 on its first amended complaint (complaint) against the City of Carlsbad (the City) for breach of contract arising from P&D's provision of design services for the City's golf course. We held the contract expressly prohibited change orders for extra work without the City's written authorization, and the trial court erred by instructing the jury that the contract could be modified orally or through the parties' conduct. (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1341-1342 (P&D I).) In P&D I, we also affirmed a judgment against P&D in excess of $6,600 on the City's cross-complaint for defective or incomplete work, a small fraction of the amount it sought. (Id. at p. 1335.)
P&D's complaint also alleged the City's refusal to pay for the extra work violated prompt payment statutes, including Civil Code section 3320 (section 3320). In P&D I, we rejected P&D's contention the court erred by directing a verdict in the City's favor on the prompt payment cause of action, explaining the "issue is moot because P&D is not entitled to payment for any extra work without a written change order." (P&D I, supra, 190 Cal.App.4th at p. 1344.)

Steven Sterpka appeals the summary judgment against him in his lawsuit against The Upper Deck Company (Upper Deck) and Collectors Universe, Inc. (Collectors). The action arises from a dispute concerning the authenticity of a Charles Lindbergh signature which Sterpka obtained when he purchased a case of trading cards from Upper Deck and Collectors authenticated the signature. Sterpka contends the trial court erred in granting summary judgment because there are triable issues of fact as to all causes of action. We disagree and affirm the judgment.