CA Unpub Decisions

Plaintiff James M. Guiboa appeals from a defense judgment in this case arising from a consignment agreement under which he distributed goods produced by defendant Pepperidge Farm, Inc. Guiboa argues the trial court erred in granting nonsuit on his cause of action for breach of the implied covenant of good faith and fair dealing and for punitive damages. He also challenges the sufficiency of the evidence supporting the jury’s verdict that Pepperidge Farm was not required to pay him the fair market value of his distributorship following the termination of the consignment agreement for cause. He asserts that on remand, the jury should decide his cause of action for conversion and the court should decide his cause of action for unfair business practices under Business and Professions Code section 17200.
We find no basis for reversal and affirm.

Salvador Solorio and Frank Jamesricky Sanchez appeal the judgment following their convictions for assault with a semiautomatic firearm. (Pen. Code, § 245, subd. (b).)[1] Sanchez was also convicted for negligent discharge of a firearm. (§ 246.3, subd. (a).) The jury found to be true allegations that the assault was committed by Solorio and Sanchez for the benefit of a criminal street gang, and that Sanchez personally used a firearm in the assault.[2] (§ 186.22, subd. (b).) Sanchez was sentenced to 13 years in prison consisting of three years for the assault, plus 10 years for committing a violent felony for the benefit of his gang. (§ 186.22, subd. (b)(1)(C).) His sentence for negligently discharging a firearm was stayed. Solorio was sentenced to eight years consisting of three years for the assault, plus a five-year gang enhancement. (§ 186.22, subd. (b)(1)(B).)
Solorio and Sanchez contend that there was insufficient evidence to support the gang enhancement, ineffective assistance of counsel, juror misconduct, and sentencing error. Solorio also contends that there was insufficient evidence that he aided and abetted Sanchez in the assault with a semiautomatic firearm. We affirm.

The juvenile court declared the four minor children of appellant Jose S., Sr. to be dependent children on the sole ground that they were at risk of serious emotional harm. (Welf. & Inst. Code,[1] § 300, subd. (c).) They were allowed to remain in the family home and offered family maintenance services. Jose, Sr. appeals the dispositional orders,[2] challenging the jurisdictional findings for three of the minors. He contends that those findings are flawed because (1) Joseph’s petition did not allege the statutory basis on which the juvenile court found jurisdiction, and (2) insufficient evidence supports the finding that Jacqueline and Jasmine were at substantial risk of serious emotional harm. We affirm the orders entered on behalf of Jacqueline and Jasmine, but reverse Joseph’s order and remand for further proceedings on his petition.

In Napa County Superior Court, Carin Louise Paguio Anderson pleaded no contest to charges of second degree burglary and contributing to the delinquency of her minor daughter. When she was arrested for those offenses, the Solano County juvenile court removed Anderson’s daughter from her custody, and Anderson was ordered to participate in reunification services in the Solano County juvenile dependency case. In the Napa County criminal case, Anderson was granted probation. Over defense counsel’s objection, the trial court included a condition of Anderson’s probation requiring her to follow all orders entered in the Solano County juvenile dependency case. The trial court also imposed certain fees on Anderson, although it waived the imposition of other fees.
On appeal, Anderson does not contest the validity of her no contest plea. Instead, she argues the condition of her probation requiring her to follow all orders in the Solano County juvenile dependency proceeding is legally unauthorized and overbroad. She also contends the issue of fees must be remanded for reconsideration. The Attorney General concedes the fee issue must be remanded.

Plaintiff Zack’s Inc. (Zack’s) appeals from a judgment dismissing its lawsuit against defendant City of Sausalito (City) for failure to bring its action to trial within the mandatory time periods set forth in Code of Civil Procedure sections 583.310, 583.320, subdivision (a)(3) and 583.360. [1] Zack’s contends the trial court erroneously applied these dismissal statutes. The crux of Zack’s claim on appeal is that the court was required to find the statutes tolled under section 583.340, subdivision (c), for periods during which various summary judgment or summary judgment/summary adjudication motions were pending as time during which it was “impossible, impracticable or futile” to bring the action to trial.[2] We shall conclude Zack’s forfeited its right to make this claim on appeal by failing to make it to the trial court. We shall affirm the judgment of dismissal.

T.C. is the mother of K.C., a dependent child of the Santa Cruz County Juvenile Court pursuant to Welfare and Institutions Code, sections 300, et seq. T.C. appeals a court order authorizing out-of-state travel with K.C.’s paternal grandmother.

Defendant Ramon Corona appeals from a judgment of conviction entered after a jury found him guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) – count one) and possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1) – count two). The jury also found that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)) and was armed with a firearm (Pen. Code, § 12022, subd. (a)) during the commission of count one. In a bifurcated proceeding, defendant admitted that he had a prior serious felony conviction (Pen. Code, § 667, subd. (a)) and a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to a total term of 19 years in state prison.
On appeal, defendant contends the trial court erred by: (1) admitting evidence of a knife recovered from the suspects’ vehicle, (2) dismissing a juror who was sleeping during trial, and (3) failing to stay sentence on count two pursuant to Penal Code section 654. We conclude that the sentence on count two must be stayed. As modified, the judgment is affirmed.

Defendant Enrique Argueta Lopez appeals a judgment of conviction following his plea of guilty to two counts of possession of stolen rifles (Pen. Code, § 12020, subd. (a)(1)),[1] and admission that one of those counts was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Defendant was awarded 385 days of total custody credit, consisting of 257 days of actual credit, and 128 days of conduct credit. On appeal he asserts he is entitled to an additional 128 conduct credits pursuant to the October 1, 2011 amendments to section 4019.

Appellant Salvador Prado filed a petition in the Santa Clara Superior Court seeking to vacate a conviction he sustained in 1999 for possessing a controlled substance for sale. The petition presented an unusual difficulty, however, for the judgment he sought to overturn had been rendered in Contra Costa County, not Santa Clara County. This fact was apparently overlooked by the court below, which mistakenly supposed that defendant was challenging a 2007 conviction he had sustained in Santa Clara County. After reviewing the record in that case, the court denied the petition on the merits. On appeal from that order, defendant contends that the court should not have adjudicated the validity of either judgment. We agree, and will reverse with directions to dismiss the petition without prejudice.

Defendant Rene Hernandez appeals after conviction, by jury trial, of rape (Pen. Code, § 261, subd. (a)(2)),[1] penetration with a foreign object (§ 289, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)). The jury found true allegations that defendant kidnapped the victim before committing the rape and penetration. (§ 667.61, subds. (b), (e)(1).) Defendant was sentenced to consecutive terms of 15 years to life for the rape and penetration, with the term for the assault stayed pursuant to section 654.
On appeal, defendant contends: (1) there was insufficient evidence to support the kidnapping allegations; (2) the trial court failed to instruct the jury that in determining whether defendant kidnapped the victim, it should consider whether the forcible movement was incidental to the commission of the associated offenses; (3) the trial court erred by allowing the prosecution to admit 10 booking photos of defendant to show his changed appearance and consciousness of guilt; (4) the trial court failed to instruct the jury to view defendant’s oral admissions with caution and failed to give a corpus delicti instruction; (5) the trial court coerced a verdict on the kidnapping allegations by directing the jury to continue deliberating on those allegations after the jury reported a deadlock on count 1; (6) the cumulative effect of the errors denied defendant due process and a fair trial; (7) section 654 barred the trial court from imposing One Strike law sentences for both the rape and penetration with a foreign object based on the same act of kidnapping; and (8) this court should order a suppression hearing or find that trial counsel was ineffective for failing to bring a suppression motion, because defendant’s DNA was taken after arrest on an unrelated felony charge for which he was not convicted, in violation of the Fourth Amendment.

Plaintiffs Maria Leon and Rafael Leon brought an action against defendant Watsonville Hospital Corporation for the hospital’s failure to advise them, when they were admitted to the emergency room, that the emergency room physicians did not accept plaintiffs’ health care plan and for the hospital’s failure to take other action to prevent the emergency room physicians from “balance billing” or charging excessive fees for services rendered. Plaintiffs, who brought the action on behalf of themselves and other similarly situated persons, sued the hospital for breach of contract, breach of the implied covenant of good faith and fair dealing, unfair business practices, violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), and declaratory and injunctive relief.

Appellants Andy’s BP, Inc. and Andy Saberi challenge the trial court’s order denying them an award of attorney’s fees under Code of Civil Procedure section 1021.5.[1] We find no error and affirm.

Defendant Brent Melton Collier appeals from an order extending his involuntary commitment to a state hospital as a mentally disordered offender (MDO). (Pen. Code, § 2972.)[1] He claims the court violated his statutory and constitutional rights by failing to advise him of his right to a jury trial and then conducting a bench trial without obtaining his personal waiver.
We affirm the order.

Defendant Vincent Bruce Cardinalli appeals a judgment of conviction entered following his plea of no contest to 100 counts of theft and fraud-related offenses. Defendant and members of his family, including his son and daughter, operated a tow truck business and a small claims law suit mill through which they used fabricated car towing and storage fee bills to defraud people.
On appeal, defendant asserts he is entitled to additional conduct credits under the amended provisions of Penal Code section 4019.[1] In addition, defendant argues the trial court erred in failing to order his daughter, who is one of his codefendants, jointly and severally liable for the restitution award to the victims in this case.