CA Unpub Decisions

Plaintiff and appellant Maria T. Rubio appeals a judgment of dismissal entered after the superior court sustained the general demurrer of defendant and respondent JPMorgan Chase Bank, N.A. (Chase) to Rubio’s operative second amended complaint (complaint) without leave to amend. The complaint purports to set forth negligent misrepresentation and promissory estoppel causes of action based on Chase’s alleged wrongful nonjudicial foreclosure of Rubio’s real property in Sylmar. We conclude the superior court correctly sustained the demurrer and that Rubio did not meet her burden of showing there is a reasonable possibility that the defects in the complaint can be cured by amendment. Accordingly, we affirm the judgment.

Along with two codefendants, appellant Luis Bernardo Quintana was charged with one count of murder after Julio Cesar Olivares was fatally shot while standing on the porch outside his house. Although appellant was present at the shooting, there was no evidence he was the shooter, so the prosecutor tried the case on the theories he was liable either as an aider and abettor to Olivares’s murder or engaged in a conspiracy to assault Olivares, the natural and probable consequence of which was Olivares’s murder. A jury found appellant guilty of the lesser included offense of voluntary manslaughter and found true an allegation that a principal was armed with a firearm.
Appellant challenges his conviction on several grounds: (1) the trial court erred in instructing the jury on aider and abettor liability; (2) the trial court should have instructed sua sponte on the lesser included offense of involuntary manslaughter; and (3) the trial court erred in allowing an amendment to the information after the jury reached its verdict and had been discharged. We reject these contentions and affirm appellant’s conviction. There are, however, clerical errors in the verdict form, minutes of the sentencing hearing, and abstract of judgment, so we will direct the trial court to correct them.

Juana L, as guardian ad litem on behalf of her minor daughter plaintiff and appellant D.S., appeals from a judgment following a jury trial in favor of defendants and respondents County of Los Angeles, Los Angeles County Sheriff’s Department, Deputy Lucia Chavez (erroneously sued as Daphne Chavez), and Sheriff Leroy Baca (collectively the County) in this excessive force case. Juana L. contends the trial court: (1) erred by excluding evidence, including the sheriff’s department’s response to a suspected child abuse report a few days after the incident; (2) erred by failing to read the parties’ stipulated facts to the jury; and (3) erred by bifurcating her negligence claim, to be tried only if the jury found unreasonable or excessive force had been used. We find no abuse of discretion in the exclusion of evidence and no harm in the failure to read the stipulation to the jury. However, we conclude the cause of action for negligence was not necessarily decided by the jury’s findings on excessive force and battery. Therefore, we reverse the judgment in favor of the County as to the negligence cause of action and remand for further proceedings.

Dennis Robert Snow pleaded no contest to two felony counts. The trial court suspended imposition of sentence, placed defendant on three years of formal probation, and ordered him to reimburse the county in the amount of $200 for public defender services. Defendant contends the attorney fee order was improperly imposed without any substantial evidence he has the ability to pay the $200. We find the order was properly imposed subject to a later determination of defendant’s ability to pay. However, we modify the felony order of probation to make it consistent with the trial court’s oral pronouncement and its separate written order on attorney fees. As so modified, we affirm the judgment.

Michael Christopher James appeals from the judgment entered following his no contest plea. His counsel has raised no issues and asked this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel notified defendant that he could file his own supplemental brief, raising any points he chooses to call to this court’s attention. No supplemental brief has been received from defendant. Upon independent review of the record, we find the abstract of judgment and sentencing minutes must be corrected to strike the concurrent sentence imposed for corporal injury to a spouse and instead to provide that sentence be stayed on that count under Penal Code[1] section 654, as well as on the associated enhancement. No other arguable issues are presented for review. Accordingly, the judgment is affirmed in all other respects.

Defendant Alvaro Humberto Lopez appeals following his conviction of various offenses, including narcotics, firearm, and gang participation charges. He requests that we conduct an independent review of the in camera hearing held pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). The People agree independent review is appropriate. We affirm.
Procedural Background
In August 2012, appellant was charged by amended information with possession of heroin for sale (Health & Saf. Code, § 11351; count one); possession of a dirk or dagger (former Pen. Code, § 12020, subd. (a); count two); possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1); count three); participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count four); possession of ammunition by a felon (former Pen. Code, § 12316, subd. (b)(1); count five); possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count six); and misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count seven). The information also included street gang, firearm, and prior conviction allegations.
The trial court dismissed count two, a jury found appellant guilty on the remaining counts and found true the enhancement allegations attached to counts one and three, and the trial court found true the allegations regarding priors. The court sentenced appellant to a prison term of 14 years. This appeal followed.

A jury found defendant Joshua Michael Gilbert guilty of evading an officer. Defendant contends his conviction must be reversed due to the trial court’s inadequate response to an asserted discovery violation by the prosecution—failing to timely turn over to the defense a supplemental police report recounting inculpatory statements defendant made to police officers after his arrest. He maintains the trial court prejudicially erred by failing to either exclude testimony about the statements or, at a minimum, to instruct the jury to consider the prosecution’s discovery violation in weighing that testimony. We find the trial court’s error, if any, was harmless, and affirm the judgment.

Following a bench trial, the court entered judgment for plaintiff Mongoose Capital, Inc. (Mongoose) against defendant Peter J. Radin, Jr. (Radin) for $72,629.52, including $54,100 in punitive damages. This judgment has prompted appeals by both parties along very familiar lines: Radin contends the trial court awarded too much; Mongoose claims it awarded too little. We reject Radin’s claim that there was no basis for the trial court to conclude that he had interfered with Mongoose’s contractual relationship. We conclude that Mongoose was not entitled to a greater recovery because of the remedy it elected to pursue. We also conclude, however, that Radin is entitled to credit for a $60,000 settlement by a joint tortfeasor, but that he cannot use that credit to erase the entire judgment. We will modify the judgment to reflect the credit, and affirm the judgment as so modified.

Defendant Lawrence Lee Williams pleaded guilty to second degree burglary (Pen. Code, §§459, 460, subd. (b))[1] and check forgery (§ 470, subd. (d)) and admitted the allegations that he had one prior violent or serious felony conviction (§ 667, subds. (b)-(i)) that also qualified as a strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and he had served four prior prison terms (§ 667.5, subd. (b)). After granting defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss the prior strike conviction and striking the four prior prison term allegations, the trial court imposed a total term of 16 months in the state prison in accordance with the plea agreement.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”

Mother and Father appeal orders of the juvenile court. Mother asserts the court erred in finding the sibling exception to adoption pursuant to Welfare and Institutions Code, section 366.26, subdivision (c)(1)(B)(v)[1] inapplicable in this case. In addition, Mother asserts the court erred in denying the section 388 petition of the maternal Grandmother as to three of the four children.
Father asserts the court erred in summarily denying his section 388 petition as to his son.

Defendant Richard Michael Reese appeals from a victim-restitution order imposed two years after his original sentence. He contends that the trial court (1) lacked jurisdiction to alter his original sentence, or (2) abused its discretion in ordering restitution. We disagree and affirm the order.

Defendant Bulos Zumot was convicted, by jury trial, of first degree murder (Pen. Code, § 187, subd. (a))[1] and arson of an inhabited structure (§ 451, subd. (b)). He was sentenced to an indeterminate term of 25 years to life for the murder, consecutive to an eight-year determinate term for the arson.
On appeal, defendant contends the trial court erred by: (1) admitting the victim’s out-of-court statements under the forfeiture by wrongdoing exception to the Confrontation Clause; (2) admitting evidence of prior acts of domestic violence under Evidence Code section 1109 and instructing the jury that it could use that evidence to infer his guilt; (3) instructing the jury on his post-crime conduct pursuant to CALCRIM No. 371; (4) giving the jury an incorrect instruction on the definition of malice; (5) refusing to hold a hearing after defendant claimed he was receiving ineffective assistance of counsel; (6) refusing to rule on defendant’s motion for a new trial; and (7) refusing to appoint a new attorney or grant him a continuance to hire a new attorney. Finally, defendant claims the cumulative effect of the errors requires reversal. For reasons that we will explain, we will affirm the judgment.

Cesar Aviles, Jr. was sentenced to 17 years after a jury trial. According to Aviles’s declaration filed in support of the petition seeking constructive notice of appeal, he advised trial counsel at the sentencing hearing on March 4, 2011, that he wanted to appeal his conviction. According to Aviles, counsel assured him that he would file a notice of appeal on his behalf and he relied on counsel’s assurance that he would file the appeal. Trial counsel’s declaration acknowledges that Aviles asked him to file an appeal from his conviction, but as a result of unfortunate medical circumstances to himself and family, counsel failed to file a notice of appeal as requested by Aviles.
The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant requests trial counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney, who has advised his client that he would file a notice of appeal, has a duty to file a proper notice of appeal, or tell the client how to file it himself. In this case, trial counsel advised Aviles that he would file a notice of appeal on his behalf. Aviles’s reasonable reliance on the promise of trial counsel to file a timely notice of appeal entitles him to the relief requested.

After Javier Galvan admitted a probation violation in case number 11CF2417, the trial court imposed the previously suspended five-year prison term. At the sentencing hearing, Galvan had 442 days of actual credit, and although he argued he was entitled to day for day conduct credits, he only received 66 days of conduct credit at the time of the pronouncement of judgment. According to trial counsel’s declaration, about three weeks after the sentencing hearing, he received a letter from Galvan asking counsel to file a notice of appeal on his behalf regarding his custody credits. According to counsel’s declaration, through inadvertence and clerical error he failed to file a timely notice of appeal, but nonetheless prepared a late notice of appeal to be filed in superior court. According to superior court, the late notice of appeal was stamped “received” but not filed because it was received six days beyond the 60-day deadline to file a timely notice of appeal. (Cal. Rules of Court, rule 8.308.)