CA Unpub Decisions

Felix I. appeals from the judgment finding true the allegations of a delinquency petition filed under Welfare and Institutions Code section 602. He contends incriminating statements he made to a police officer were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We agree Felix was in custody for Miranda purposes when questioned by the officer in the field, and therefore his unMirandized statements should have been excluded. However, his statements made after his arrest, and after he was given and waived his Miranda rights, were not the product of a deliberate two-step interrogation in violation of Missouri v. Seibert (2004) 542 U.S. 600, 612 (Seibert), and were properly admitted. Accordingly, we affirm the judgment.

Salma R. appeals from an order after the juvenile court declared her a ward of the court pursuant to Welfare and Institutions Code section 602, and found true she possessed controlled substance paraphernalia. Salma argues the juvenile court imposed vague and overbroad probation terms and suggests modifications to those terms. The Attorney General does not object to the modifications. As we explain below, we modify the probation conditions and affirm the judgment as modified.

Justin Anthony Joseph Guarino appeals from a judgment after a jury convicted him of aggravated assault and found true he inflicted great bodily injury on Jessica Gledhill. Guarino argues three fees he was ordered to pay are erroneous. We agree with one of his claims, but the other two claims have no merit. We affirm the judgment as modified.

Appellant was convicted of robbing Randall Yerton after Yerton refused to go through with a drug deal appellant had proposed to him. Appellant contends the trial court prejudicially erred in failing to instruct on the lesser included offense of grand theft person and on the claim-of-right defense. We disagree and affirm the judgment.

Plaintiff and Respondent Pacific Western Bank (PWB or the bank) made a commercial loan to Prospect Village L.P. (Prospect Village) to build a commercial project. John Tillotson, Jr.,[1] and Daniel Howse signed the promissory note on behalf of Prospect Village’s general partner, Pelican Tustin LLC, and signed commercial guaranties, individually and as trustees of the Tillotson Family Trust and the Howse Family Trust, respectively. John’s wife, Haydee, also signed a commercial guaranty as a trustee of the Tillotson Family Trust. The commercial venture failed to cover the unpaid amount of the loan. PWB sued Prospect Village on the promissory note and sued Howse and the Tillotsons on their guaranties. According to PWB’s evidence, the outstanding amount due on the loan (with interest) was over $1.7 million.

Appellant Tom Hatch appeals the lower court judgment entered in favor of respondent HSBC Bank, USA, N.A. (HSBC Bank), following a sustaining of respondent’s demurrer without leave to amend to appellant’s third amended complaint.
On appeal from a judgment sustaining a demurrer without leave to amend, the reviewing court exercises independent review to determine whether the complaint states facts sufficient to state a cause of action. The court assumes the truth of the factual allegations, but not the truth of conclusions of law. (Leonte v. ASC State & Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) In considering whether the trial court erred in refusing to allow amendment of a pleading, the appellate court’s standard of review is based on an abuse of discretion review. It is the plaintiff who has the burden of proving that an amendment would cure the defect. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Plaintiff Bessie Mae Smith (Smith) purports to appeal, in propria persona, from an order denying her motion to set aside an order granting terminating sanctions to defendants Carrington Mortgage Services, LLC (Carrington) and Fremont Reorganizing Corporation, fka Fremont Investment and Loan as succeeded in interest by Signature Group Holdings, Inc. (Fremont) (collectively respondents) and the resulting judgments. Because such an order is not appealable except under limited circumstances which are not present here, we dismiss the appeal.

Plaintiff Bessie Mae Smith (Smith) purports to appeal, in propria persona, from an order denying her motion to set aside an order granting terminating sanctions to defendants Carrington Mortgage Services, LLC (Carrington) and Fremont Reorganizing Corporation, fka Fremont Investment and Loan as succeeded in interest by Signature Group Holdings, Inc. (Fremont) (collectively respondents) and the resulting judgments. Because such an order is not appealable except under limited circumstances which are not present here, we dismiss the appeal.

In case No. CRM008521, a jury convicted appellant, Gordon Rafferty, of three counts of home invasion robbery (counts 1-3/Pen. Code, § 211),[1]and one count of false imprisonment (count 4/§ 236) and found true an allegation that a principal was armed with a handgun (§ 12022, subd. (a)(1)). In a separate proceeding, the court found true an on-bail enhancement (§ 12022.1, subd. (b)).
On December 19, 2011, the court sentenced appellant to a 10-year term in the instant case and a concurrent two-year term in case No. CRM007430.
On appeal, Rafferty contends: 1) the findings and sentence on the on-bail enhancement are invalid and must be reversed; and 2) he was denied the effective assistance of counsel. We affirm.

Defendant Johnathan Willard Settle strangled and killed his 62-year-old great‑aunt, Rita Cordrey, about 11 days after he was released from prison. He appeals from his first degree murder conviction, contending (1) defense counsel was ineffective for failing to object to inadmissible and prejudicial evidence, (2) the trial court abused its discretion by denying defendant’s motion to discharge a juror, and (3) the abstract of judgment must be corrected to reflect the credits to which defendant is entitled. We will direct the trial court to amend the abstract of judgment to reflect the proper credits and affirm the judgment as so modified.

A jury convicted defendant and appellant Desmone Downs of first degree murder (count 1—Pen. Code § 187, subd. (a))[1] and active participation in a criminal street gang (count 2—§ 186.22, subd. (a)). The jury additionally found true allegations that in defendant’s commission of the count 1 offense he personally used a handgun (§ 12022.53, subd. (b)); personally and intentionally discharged a handgun (§ 12022.53, subd. (c)); personally and intentionally discharged a handgun causing great bodily injury and death (§ 12022.53, subd. (d)); and did so for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced defendant to an indeterminate term of incarceration of 50 years to life.

Crystal H. appeals from a judgment of dissolution in which the trial court made certain orders regarding custody of her two sons and visitation of the boys with their father and Crystal's former spouse, Shawn H.[1] In criminal proceedings, Shawn was convicted of forcible oral copulation of Crystal and was sentenced to a six-year prison term. During the pendency of those proceedings, a restraining order was in place ordering Shawn to stay away from, and not contact, Crystal and their sons.
Crystal filed a marital dissolution action, which proceeded concurrently with the criminal proceedings. At some point after Shawn had posted bail in the criminal case, he sought visitation with the boys.[2] After a trial on issues of custody and visitation, the trial court issued an order setting forth a number of different requirements related to custody of, and Shawn's visitation with, the boys. The court awarded Crystal sole legal and physical custody and denied Shawn any visitation or telephonic contact with the boys while he is in prison.

Salvador Briceno Zarate appeals a judgment following his plea of no contest to one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). On appeal, he contends the trial court erred at his February 2010 sentencing by awarding him conduct credit for local custody time served before January 25, 2010, in accordance with a former version of Penal Code[1] section 4019 rather than the amended version in effect on the date of his sentencing. In our original opinion, People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676 (Zarate I), we concluded the trial court erred by not applying the amended version of section 4019 to all of the days served by Zarate in presentence local custody.

Appellant S.B., father of the minors Audrey B., K.B., and Ki.B., appeals from an order of the juvenile court denying him reunification services. (Welf. & Inst. Code, §§ 361.5, subd. (e)(1) (hereafter section 361.5(e)(1)), 395.) [1] Father contends there is insufficient evidence to support the juvenile court’s finding that providing services to him would be detrimental to the minors. We shall affirm.