CA Unpub Decisions

A jury convicted defendant Alex Villanueva Estrada of taking and driving a motor vehicle without the owner’s consent, and the trial court sentenced defendant to five years in state prison.
Defendant now contends his trial counsel rendered ineffective assistance by eliciting incriminating evidence from the victim during cross-examination. We conclude, however, that defendant’s ineffective assistance claim fails because he has not established prejudice.
We will affirm the judgment.

This appeal is from defendant Pharaoh Bub Haywood’s second trial for being a felon in possession of a firearm and negligently discharging a firearm. His first trial ended in a mistrial on those charges but with convictions on charges of evading a peace officer, resisting a peace officer, and driving on a suspended license.
On appeal, defendant raises five contentions of ineffective assistance of counsel and one of cumulative prejudice based on his ineffective assistance contentions. Disagreeing with these contentions, we affirm.

Defendant Sergei Zubko pleaded no contest to driving under the influence of drugs (Veh. Code, § 23152, subd. (a)) within 10 years of three or more prior convictions for driving under the influence (Veh. Code, § 23550, subd. (a)), and admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)).[1] The trial court sentenced defendant to four years in state prison, but suspended execution of sentence and placed defendant on probation for four years.
Less than four months later, the Criminal Justice Realignment Act of 2011 (the Realignment Act)[2] took effect on October 1, 2011. With certain exceptions, felons sentenced under the Realignment Act are committed to jail rather than prison, may have a concluding portion of their sentence suspended in lieu of probation, and are not subject to parole. (§§ 3000 et. seq., 1170, subds (h)(1)-(3), (5).) Prison sentences are imposed, however, for felons who have current or prior serious or violent felony convictions, who are required to register as sex offenders, or who have sustained a section 186.11 aggravated white collar crime enhancement. (§ 1170, subd. (h)(3).) Defendant’s offenses in this case are not among the crimes exempted from a jail commitment under the Realignment Act. Nonetheless, the Realignment Act sentencing scheme applies prospectively to defendants “sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).)

John M. Farr appeals pro se from an order of the trial court denying his motion for an award of attorney fees, and granting the motion of the County of Nevada (County) to strike virtually all of the costs sought in Farr’s memorandum of costs.
In the litigation underlying the present appeal, Farr sought review in the trial court of a property tax assessment decision of the Nevada County Assessment Appeals Board (the Board) regarding the value of his owner-occupied single-family home. The trial court upheld the Board’s decision, but in Farr v. County of Nevada (2010) 187 Cal.App.4th 669 (Farr I), this court reversed the trial court’s judgment and remanded the matter to the Board for further proceedings, based on our conclusion that the Board failed to apply the correct burden of proof. (Id. at pp. 674, 683.) Having prevailed in his appeal in Farr I, Farr was awarded his costs on appeal. (Id. at p. 687.)
After the remittitur issued, Farr filed in the trial court a memorandum of costs on appeal, seeking $4,202 in costs, including those associated with his appeal of the Board’s decision to the trial court. Farr also filed a motion seeking $13,500 in attorney fees, pursuant to Revenue and Taxation Code sections 1611.6 and 5152.[1] The County opposed Farr’s motion for attorney fees and moved to tax costs. The trial court awarded Farr costs in the amount of $655 only, and denied his request for attorney fees.
Farr contends the trial court erred by not awarding him the costs associated with his underlying challenge in the trial court to the Board’s decision. He also contends the court erred in denying his request for attorney fees. As to costs on appeal, we conclude the trial court did not abuse its discretion to award $655, the cost of filing the civil notice of appeal. As to attorney fees, sections 1611.6 and 5152 do not apply to this case. Therefore, the trial court properly denied Farr’s motion for attorney fees. We affirm the trial court’s order.

In State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 (Arbuckle I), our Supreme Court held that plaintiff Carole Arbuckle could pursue her whistleblower suit[1] against defendant State Board of Chiropractic Examiners (Board) and its former executive director, defendant Jeanine R. “Kim” Smith, despite adverse administrative findings by the State Personnel Board (SPB)’s executive officer and without first pursuing further administrative remedies. The Board and Smith (collectively the Board, except as indicated) now appeal from a judgment after a substantial jury verdict in favor of Arbuckle.
The Board’s principal contention is that Arbuckle was barred from prosecuting this civil suit by the doctrines of res judicata and collateral estoppel, a claim that unabashedly disregards the holding of Arbuckle I. The Board also purports to challenge the sufficiency of the evidence of liability and damages, but these contentions are both forfeited and lack merit. Accordingly, we shall affirm the judgment.

Jimmy Lee Tarnowski pleaded no contest to one count of possession of a controlled substance (methamphetamine), in violation of Health and Safety Code section 11377, subdivision (a), and was sentenced to eight years in state prison. He filed a timely notice of appeal. We appointed appellate counsel to represent Tarnowski. After examining the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On May 14, 2013, we advised Tarnowski he had 30 days in which to personally submit any contentions or issues he wished us to consider.
Tarnowski filed a supplemental brief challenging his strike conviction and his prior prison term enhancements, and requesting that his sentence be modified to the midterm. His arguments are without merit, and we affirm the judgment.

On January 16, 2012, at 7:35 p.m., West Covina Police Officer Scott Mohler observed defendant driving southbound on Sunset Avenue just north of Francisquito. Defendant was illegally driving in the area bounded by double yellow lines before the left turn pocket in order to pass another vehicle. After passing the other vehicle, defendant turned left onto eastbound Francisquito. Officer Mohler activated his lights and pulled her over to the curb. Defendant looked around the car for her license, and told Officer Mohler she was having a hard time finding it. Defendant stated she believed it was on the floorboard and got out of the car and faced Officer Mohler. Defendant was holding a pink wallet and made a shaking motion. Officer Mohler saw a piece of cellophane come out of the wallet and drop down towards his right foot almost under the car. Defendant moved to step on the object. Officer Mohler, believing the package might contain a controlled substance, detained her in handcuffs and recovered the object. The package contained .46 grams of cocaine base. Officer Mohler searched defendant’s car and did not find any drug paraphernalia, and although he did not conduct a sobriety test, he determined while talking to defendant that she was not under the influence.

A modification decision.

Following termination of her parental rights after a hearing held pursuant to Welfare and Institutions Code section 366.26,[1] S.R. (mother) filed this appeal, seeking correction of the court’s written order memorializing the oral pronouncement of judgment at the section 366.26 hearing, and requesting we direct the juvenile court to strike the orders and findings in paragraph Nos. 14 and 16 of Judicial Council Forms, form JV-320, which state that posttermination visitation by mother would be detrimental to the minors E.R. and L.R., and require that the minors be allowed open contact with their sister, D.C. Having reviewed the record, we conclude mother’s contention has merit and shall grant her request.

C.L. (Mother), appeals from the dispositional order in this dependency case. The juvenile court declared the children (N.L. and X.L.) dependents of the court (Welf. & Inst. Code, § 300)[1] and ordered them placed in a foster home.
Mother contends the juvenile court erred by failing to offer her reasonable reunification services, including visitation, and by placing the children in a foster home outside the county without following proper procedures. Mother also contends one of the allegations of the section 300 petition concerning X.L. was not supported by substantial evidence. For the reasons explained below, we will affirm the juvenile court’s dispositional order.

David Stephan Hopkins appeals from a judgment after a jury convicted him of aggravated assault on a peace officer. Hopkins argues insufficient evidence supports his conviction and this court should direct the clerk of the superior court to prepare a new minute order omitting any reference to his driver’s license being revoked. Neither of his contentions have merit. We affirm the judgment but remand the matter to the trial court for it to make the required findings under Vehicle Code section 13351.5.

Genutec Business Solutions, Inc., (Genutec) appeals from the judgment entered after the trial court granted summary judgment in favor of his former attorney Stephen A. Weiss, a partner at Gersten Savage LLP (referred to collectively and in the singular as Weiss, unless the context indicates otherwise). The trial court found the
one-year statute of limitations set forth in Code of Civil Procedure section 340.6, subdivision (a),[1] barred Genutec’s complaint alleging a single cause of action for professional negligence against Weiss. Finding none of Genutec’s arguments on appeal have merit, we affirm the judgment.

Plaintiff and appellant Brett A. Fiorini (Fiorini) sued defendants and respondents Donaghy Sales, LLC (Donaghy), Phusion Projects, LLC (Phusion), and City Brewing (City Brewing), after the death of Fiorini’s son allegedly from ingesting Four Loko alcoholic/energy beverage. Following dismissal of Fiorini’s complaint as to Donaghy on November 19, 2012, and Fiorini’s complaint as to Phusion on November 27, 2012, notices of entry of judgment as to defendants Donaghy and Phusion were filed on December 3 and 5, 2012. Rather than appeal from these judgments, Fiorini waited until the court entered judgment on February 19, 2013, following the granting of City Brewing’s motion for judgment on the pleadings. Fiorini filed the notice of appeal on April 2, 2013, within 60 days of judgment as to City Brewing, but more than 60 days of judgment as to Donaghy and Phusion.
This court issued an order informing Fiorini that the court was considering dismissing the appeal on the ground that the notice of appeal filed by him seeking review of the judgments of dismissal as to Donaghy and Phusion was untimely. (See Cal. Rules of Court, rule 8.104.) Fiorini responded claiming the arguments asserted by Donaghy and City Brewing in their motion for judgment on the pleadings were interrelated, concerned the same legal issues and, that until the judgment was entered as to City Brewing, there had been no “one final judgment.” In appellant’s words, “the orders and judgments as to Donaghy and Phusion should not be deemed to have amounted to appealable judgments as the lower court was actively, at the time, considering the arguments and legal issues which related to Donaghy and Phusion’s demurrers. In considering City Brewing’s motion for judgment on the pleadings, the lower court was free to, and very well could have, reversed itself as to its rulings relative to Donaghy and Phusion.”

The juvenile court found true the allegation that R.C., age 12, committed two separate lewd acts upon a child (Pen. Code, § 288, subd. (a))[1] in March of 2011. R.C. was declared a ward of the court and ordered to reside in the custody of his father and under the supervision of the probation officer.
On appeal, R.C. challenges the admission of his confession into evidence and the sufficiency of the evidence to support the juvenile court’s true findings of section 288, subdivision (a). He also contends that the juvenile court violated his constitutional right to due process when it found he violated section 288 without substantial evidence of intent. We disagree and affirm.