CA Unpub Decisions

Donna Milette sued Thomas and Charlotte Vaughns (collectively, the Vaughns) for, among other things, breach of written and oral contract arising out of the Vaughns’ purchase of an interest in Milette’s property. The parties settled the case during trial. The trial court denied Milette’s motion for $116,275 in attorney fees, concluding there was “no contractual or statutory ground for recovery shown by the evidence nor did the settlement provide for attorney fees.”
Milette appeals. She contends the court erred by denying her motion for attorney fees because the “stipulated judgment was entered upon a contract containing a provision providing for fees to the prevailing party[.]”
We affirm.

Santonio Deshwan Rogers appeals from a judgment upon a jury verdict finding him guilty of receiving stolen property (Pen. Code,[1] 496, subd. (a)) and first degree residential burglary (§ 459). He contends that the trial court erred in denying his motion to suppress evidence. We affirm.

Plaintiff Richard Ashoff appeals the granting of defendant Essentia Insurance Company’s (Essentia) motion for summary judgment. We affirm.

Defendant Kevin Montiel received a prison term of life with the possibility of parole after being found guilty of violating Penal Code section 220, subdivision (b) (section 220(b); all further statutory references are to the this code) with the finding a non-accomplice was present (§ 667.5, subd. (c)(21)). Section 220(b) imposes a life term on anyone “who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape . . . .” On appeal, defendant argues the trial court committed reversible error by not instructing the jury first degree burglary and assault with intent to commit rape are lesser included offenses of section 220(b). We agree the court so erred, but find the error harmless under the circumstances of this case. Therefore, we affirm the judgment.

Defendant Prospero Ramirez Guadarrama was convicted of multiple counts, including two special circumstances murders, relating to a gang shooting. During sentencing, the court indicated that it had no discretion except to sentence defendant to life without the possibility of parole on each murder count. Defendant argues that under Penal Code section 190.5, subdivision (b),[1] the court had the discretion to sentence him to 25 years to life instead. Because the court’s erroneous belief led to its sentencing decision, he argues he should be resentenced. The Attorney General agrees, as do we.
Defendant also argues that his sentence on one count of street terrorism
(§ 186.22, subd. (a)) must be stayed pursuant to section 654. Again the Attorney General concedes the point, and we concur. We therefore remand the matter for resentencing.

A jury convicted defendant Javier Bibo Flores of one count of sexual acts with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); all further statutory references are to this code), plus one count each of misdemeanor assault, battery (§§ 240, 242) and felony child abuse (§ 273a, subd. (a)). As to the latter charge, the jury also found true an allegation of great bodily injury (§ 12022.7, subd. (d)). The court sentenced defendant to 15 years to life. He contends the court erred by not instructing the jury as to the union of act and specific intent (CALCRIM No. 251) on the first count. Although the court should have given the instruction, considering the other instructions given, the error was harmless beyond a reasonable doubt. We therefore affirm the judgment.

K.K. (mother) appealed from a 2012 order terminating parental rights (Welf. & Inst. Code, § 366.26) to her three preschool-age children.[1] After reviewing the entire record, mother’s court-appointed appellate counsel informed this court he could find no arguable issues to raise on mother’s behalf. Counsel requested and this court granted leave for mother to personally file a letter setting forth a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Mother has now submitted a letter in which she asks for reconsideration and expresses her love for her children.
Mother’s letter neither addresses the termination proceedings nor sets forth a good cause showing that any arguable issue of reversible error at the termination hearing does exist. (In re Phoenix H., supra, 47 Cal.4th at p. 844.) An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is up to an appellant to raise claims of reversible error or other defect and present argument and authority on each point made. If an appellant does not do so, the appeal should be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Petitioner is an inmate in the custody of the California Department of Corrections and Rehabilitation. He filed a petition for writ of mandate in respondent court that raises issues relating to his criminal conviction. The respondent court required petitioner to pay a filing fee, directing the director of the California Department of Corrections and Rehabilitation to make deductions from petitioner’s inmate trust account until the filing fee of $410 is paid in full. Although even indigent inmates are required to make partial payments of filing fees in civil actions (Gov. Code, § 68635), petitioner in this instance is challenging certain aspects of his criminal conviction. A petition raising such issues is properly considered a habeas corpus proceeding for which no filing fees can be required. (Gov. Code, § 6101.) Thus, the respondent court erred in requiring petitioner to pay filing fees, even though petitioner called his petition one for mandate relief (cf. Bravo v. Cabell (1974) 11 Cal.3d 834).

Petitioner W.J. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s jurisdictional and dispositional orders as to her three children, and setting a Welfare and Institutions Code[1] section 366.26 hearing. Mother argues that: (1) her due process rights were violated when the juvenile court added an additional allegation after the conclusion of evidence; (2) her right to confront and cross-examine witnesses was violated when the juvenile court allowed minors’ counsel to question the children in chambers; and (3) the juvenile court erred in denying her reunification services pursuant to section 361.5. We reject these contentions and affirm the judgment.

Defendants and appellants, Justin Tyme Hayes, Derek Shane O’Brien, and Mark Anthony Wisler, are members or associates of the Coors Skins (Coors), a White supremacist gang. On an evening in November 2008, they, among others, beat a Hispanic man into a coma. Separate juries convicted them of attempted murder, active participation in a criminal street gang, and assault by means of force likely to cause great bodily injury. Each jury also found true allegations that defendants personally inflicted great bodily injury and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. Wisler’s jury found true the allegation that the attempted murder was premeditated and deliberate; Hayes’s jury and O’Brien’s jury found the same allegation not true. Hayes and O’Brien were each sentenced to prison for 22 years 8 months. Wisler was sentenced to a prison term of 21 years to life.
Each defendant contends (or joins in the contentions of his codefendants) that the court erred by: (1) denying a motion to sever the gang participation count and bifurcate the trial of the gang enhancement allegations; (2) allowing a gang expert to testify as to allegedly inflammatory gang-related evidence; (3) instructing the jury on aiding and abetting and the natural and probable consequences doctrine; and (4) failing to stay the sentence on the gang participation conviction under Penal Code section 654.[1] In addition, Wisler contends the evidence was insufficient to support his jury’s finding of premeditation and deliberation. We agree with defendants (and the Attorney General) that the court should have stayed the sentence on the conviction for active gang participation. We reject defendants’ other arguments and affirm the convictions.

The trial court placed defendant Yosselin Bertacco on five years formal probation and ordered her to serve one year in county jail after a jury found her guilty of felony hit and run (Veh. Code, § 20001; unless otherwise designated, all statutory references that follow are to the Vehicle Code ), driving an unregistered motor vehicle (§ 4000, subd. (a)), and driving with a suspended license (§ 14601.1, subd. (a)).
On appeal, defendant contends (1) her conviction for felony hit and run is not supported by substantial evidence, (2) admission of evidence of her outstanding arrest warrant was error, (3) she is entitled to additional presentence custody credit, and (4) the booking fee was wrongfully imposed. As we will explain, defendant is entitled to additional presentence custody credit and the booking fee must be stricken. In all other respects, we affirm the judgment.

Lakesha H., prior caretaker, appeals from the order of the juvenile court removing siblings G. (age 4 years) and Genesis (age 26 months) from her custody (Welf. & Inst. Code, § 366.26, subd. (n))[1] and denying her modification petition to have the children returned to her care (§ 388). We conclude the evidence supports the court’s finding that removal of the children was in their best interest and return would not be in their best interest. Accordingly, we deny the petition.

Following a jury trial, defendant and appellant Ameen Ali Bryant was convicted in count 6 of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)),[1] with a finding that a principle was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). The jury was unable to reach verdicts on two counts of robbery (§ 211). In return for an agreed upon concurrent sentence of two years in state prison, defendant entered a plea of no contest to one count of robbery. The trial court, in compliance with the agreement, sentenced defendant to concurrent two-year terms in state prison and struck the armed allegation in count 6.
Defendant filed a timely notice of appeal, specifically stating his intent to challenge the conviction in count 6. This court appointed counsel to represent defendant on appeal. On March 27, 2013, appointed counsel filed a brief raising no issues and requesting this court to review the record independently for arguable appellate contentions pursuant to People v. Wende (1979) 25 Cal.3d 436.
Defendant was advised of his right to file a supplemental brief. After being granted an extension of time, defendant filed a letter brief arguing he is not a gang member, has never been a gang member, and the tattoos he has are not gang-related. He further contends he was coerced into pleading no contest to the robbery and only did so to get out of custody, where he was being “attacked and harassed.”

Defendant and appellant Ronald Stewart Hix (defendant) appeals from the judgment entered following his guilty plea and conviction of driving a vehicle while having a blood alcohol level of .08 percent or higher, a misdemeanor in violation of Vehicle Code section 23152, subdivision (b). Defendant contends the trial court erred by denying his motion to suppress evidence. We disagree and affirm the judgment.