CA Unpub Decisions

Appellant Raul Briceno appeals from a postjudgment order denying his motion to vacate a victim restitution order. We conclude that Briceno has failed to present a justiciable controversy.

Plaintiff and appellant Ardeshir Majlessi appeals a judgment entered in favor of defendants and respondents Maryam Parman, Mitra Parman, The Parman Law Group, Inc., Mark Steven Algorri, Ernest P. Algorri and Dewitt Algorri & Algorri (defendants)[1] following an order granting defendants’ motion for summary judgment or, in the alternative, summary adjudication of causes of action (MSJ). We reverse the judgment.
Plaintiff is an attorney who represented Marvin Vindel in a personal injury action against third parties. At Vindel’s request, defendants replaced plaintiff as counsel in the personal injury action. Vindel and defendants subsequently received a multimillion dollar settlement payment but did not honor plaintiff’s alleged lien for attorney fees.
The trial court ruled that plaintiff could not prevail on any of his causes of action as a matter of law. At the heart of the court’s decision were its findings that plaintiff and Vindel did not have a contractual relationship. We conclude that there is a triable issue of material fact as to whether Vindel executed a retainer agreement. The trial court therefore erroneously granted defendants summary judgment.

Appellant Jibril Khalid Hall was convicted of four counts of robbery, with a true finding that he personally used a firearm on count 1. (Pen. Code, §§ 211, 12022.53, subd. (b), 12022, subd. (a)(1).)[1] Appellant Melvin Henry, Jr., was convicted of one count of robbery (§ 211), with a true finding that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Appellants Hall and Henry contend the trial court penalized them for exercising their right to a jury trial by improperly imposing the upper term for their burglary convictions, and Hall contends the trial court improperly relied on an inaccurate probation report in imposing the upper term. We affirm.

Defendant Rodrell Greenlow appeals from a conviction of receiving stolen property (Pen. Code, § 496d, subd.(a)), following a negotiated disposition and no contest plea.[1] He contends the trial court erred in sentencing him to state prison rather than county jail under the Realignment Act (§ 1170, subd. (h); Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 15, § 1) because the prosecutor neither pleaded nor proved the prior conviction which precluded county jail. He recognizes the Court of Appeal in People v. Griffis (2013) 212 Cal.App.4th 956, 961–965 (Griffis), rejected this same argument, holding there is no pleading and proof requirement for use of a prior conviction to disqualify a defendant from serving his or her sentence in county jail. He claims this holding was incorrect. We disagree, follow Griffis, and affirm.

Petitioner, Adolfo Aguilar Flores, seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a trial, a jury convicted Flores of four felony offenses and he was ordered to serve two consecutive 15-year-to-life sentences, for a total term of 30 years to life, plus a 10-year determinate term imposed consecutive to the determinate term. In his declaration, trial counsel states that based on Flores’s actions at the time of the sentencing hearing on November 9, 2012, and their earlier communications, he knew Flores wanted to appeal the guilty verdicts in this case. According to trial counsel, he intended to file a valid notice of appeal, but unfortunately miscalendared the date when the notice of appeal was due to be filed and entered the wrong date. Trial counsel’s declaration states that when he attempted to file the notice of appeal on January 11, 2013, the superior court stamped the notice of appeal “Received but not Filed.”
The principle of constructive filing of the notice of appeal should be applied in situations where trial counsel takes it upon himself to file a notice of appeal on his client’s behalf and fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney is under a duty to either file the notice of appeal, or tell the client how to file it himself. In this case, Flores relied on trial counsel to file a timely notice of appeal on his behalf. His reasonable reliance on counsel to file a timely notice of appeal entitles him to the relief requested.
The Attorney General does not oppose granting the petition without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 7728.)

Howard Rich purchased a single‑family residence at an execution sale conducted to satisfy a judgment against Yung‑Shen Steven Lee. Rich was a third party purchaser; the plaintiff and judgment creditor was Spyglass Hill Community Association (the HOA), which managed the common interest development of which the residence was a part. After the sale, the trial court granted Lee’s motion to vacate the judgment on the ground it had been obtained by the HOA through fraud. Soon thereafter, the court granted Lee’s motion for restitution and cancelled the sheriff’s deed to Rich. Although Rich was not a party to the HOA’s judgment against Lee, Rich moved for reconsideration of the order vacating the judgment. The trial court denied the motion for reconsideration.
Rich appeals from two orders: (1) the order denying his motion for reconsideration and (2) the order granting Lee’s motion for restitution and cancellation of the sheriff’s deed of sale.
After the matter was briefed, we issued an order stating we were considering whether to dismiss the appeal for lack of jurisdiction and inviting the parties to submit supplemental letter briefs addressing three issues of appellate jurisdiction. Both Rich and Lee filed supplemental letter briefs, which we have considered. We conclude we have no jurisdiction over this appeal and decline to treat it as a petition for writ of mandate. The appeal is therefore dismissed.

In 1990, Neelam Kulkarni, the wife of Avinash Kulkarni,[1] took their infant son, Soumitra Kulkarni, from their home in Orange County, California, and flew to her parents’ home in India. Avinash was unaware of Neelam’s plans, and did not consent to Soumitra’s removal from the United States. More than 19 years later, Avinash sued several family members and acquaintances, accusing them of having conspired with Neelam to abduct Soumitra. At trial, the court granted nonsuit motions of Sunila Kulkarni and Madhavi Nerurkar. A jury found that Meera Upasani and Mohan Upasani had no knowledge that Neelam planned to leave the United States, and therefore found in favor of Meera and Mohan and against Avinash. Avinash’s arguments on appeal are without merit, and we therefore affirm the judgment.

This appeal involves a discrepancy between the reporter’s transcript of the sentencing hearing and the minute order arising from that hearing. In keeping with the general rule, we adopt the trial court’s oral pronouncement as the intended sentence and modify the judgment accordingly. As modified, the judgment will be affirmed.

This appeal raises two questions: Did the trial court fail to make an adequate inquiry concerning a complaint about the performance of appointed defense counsel by defendant and appellant Jorge Stopani? We conclude the court fully discharged its duty under People v. Marsden (1970) 2 Cal.3d 118. Second, did the court abuse its discretion in denying a defense motion for continuance, made on the first day of trial, to permit counsel to file a discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531? We conclude the court did not abuse its discretion. Accordingly, we affirm the judgment.

This appeal presents a single issue: Did defendant effectively enter a no contest plea on June 24, 2011? We conclude that he did, and affirm.

Mother, A.M., appeals from the October 17, 2012, and December 11, 2012, orders denying mother’s modification petitions and terminating her parental rights for R.M. (Welf. & Inst. Code, § 395.1.)[1]
I.M., an infant was diagnosed with biliary atresia, a congenital condition that could cause liver failure and necessitate liver transplant. While at the hospital, mother displayed mental health disorders. I.M. and R.M. were detained in separate placements. After reunification services were terminated, mother began domestic violence counseling and additional therapy. The juvenile court denied her section 388 petition. On the day of the section 366.26 hearing, mother filed another section 388 petition, which was again denied. I.M. was placed in long-term foster care as a medically fragile child and parental rights were terminated for R.M. so that she could be adopted by her caretaker. This appeal is from the denial of mother’s two section 388 petitions and from the order terminating parental rights for R.M.
Mother asserts the juvenile court abused its discretion and erred in denying the section 388 petitions. Mother also argues the beneficial relationship exception was established and the court erred by not considering a legal guardianship instead of adoption. We conclude the record supports the orders of the juvenile court. We affirm.

Defendant and appellant Joey Alexander Agundez (defendant) pled guilty, pursuant to a negotiated plea agreement, to attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and admitted the criminal street gang special allegation (Pen. Code, § 186.22, subd. (b)). The trial court, in turn, sentenced defendant to the agreed upon term of 17 years in state prison.
Defendant contends in this appeal that the trial court failed to conduct an adequate inquiry into defendant’s postplea request to appoint substitute counsel to represent him at sentencing. We conclude defendant’s claim is meritless, and therefore we will affirm the judgment.

On December 9, 2010, an information charged defendant and appellant William Earl Wade with criminal threats under Penal Code section 422 (count 1), and dissuading a witness from testifying under Penal Code section 136.1, subdivision (a)(1), (count 2). The information also alleged that defendant had suffered a prior conviction under Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
On December 21, 2010, defendant pled not guilty to all counts. On February 4, 2011, jury trial commenced. On February 15, 2011, defendant’s motion pursuant to Penal Code section 1118.1, to dismiss count 1, was denied. On February 16, 2011, the jury found defendant guilty on both counts, and on March 25, 2011, defendant admitted the prior allegation charged in the information.
On April 22, 2011, the trial court denied probation and sentenced defendant to prison for six years as follows: on count 1—the upper term of three years, doubled under Penal Code section 1170.12; and count 2—365 days in county jail to run concurrent to count 1. The court ordered defendant to pay various fines and fees, and awarded defendant 285 days of credit for time served.
After a timely notice of appeal was not filed on defendant’s behalf, we granted defendant’s petition for habeas corpus to establish constructive timely filing of a notice of appeal.

A jury convicted defendants Jonathan Craig Holeman and Samuel Charles Wright, Jr., of killing John Painter and his daughter, Barbara Martin, in Painter’s vacation home in Lake Arrowhead. The six counts included two counts of first degree murder (§ 187, subd. (a)), two counts of robbery (§ 211), one count of burglary (§ 459), and one count of automobile theft. (Veh. Code, § 10851, subd. (a).) Counts 1 and 2 also included allegations of special circumstances for multiple murders and for felony murder based on robbery and murder—within the meaning of section 190.2, subdivision (a)(3) and (17)(A) and (G).
The two defendants were tried jointly with separate juries. The court sentenced both defendants to life in prison without possibility of parole.