CA Unpub Decisions
California Unpublished Decisions
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A jury convicted defendant Michael Rene Romero of attempted murder, mayhem, attempted robbery, assault by means of force likely to produce great bodily injury, and criminal street gang activity. The jury also found true various enhancement allegations, such as that defendant committed particular offenses for the benefit of a criminal street gang. Defendant now contends (1) the trial court erred in admitting -- pursuant to the adoptive admission exception to the hearsay rule -- incriminating statements made by defendant’s cohort, because there was no evidence that defendant heard and adopted the statements; (2) the trial court violated defendant’s Sixth Amendment right to confrontation when it admitted a witness’s statement that defendant and his cohort said the “Red Nose Pittz†gang was “about beating people upâ€; (3) the trial court erred in admitting letters attributed to defendant because the letters were not authenticated; (4) the trial court erred in instructing the jury that a person is “equally guilty†of a crime whether he or she committed it personally or acted as an aider and abettor; and (5) there is insufficient evidence that defendant committed the offenses to benefit a criminal street gang. |
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This appeal arises from an action by Bahman Khodayari against Pezhman Christopher Ardalan individually and Ardalan & Associates (collectively defendants) for failing to represent him through trial in an underlying criminal matter for the flat fee of $15,000. Plaintiff appeals from trial court orders sustaining a demurrer without leave to amend as to 15 of his causes of action on statute of limitations grounds. He also challenges the award of summary judgment on his remaining cause of action for breach of contract. Plaintiff argues the statute of limitations on an action for legal malpractice (Code Civ. Proc., § 340.6[1]) does not apply to 15 of the causes of action, that the causes of action did not accrue when defendants were relieved as counsel before trial of the criminal matter, and that the statutes of limitations were tolled because he was incarcerated and by the principles of equitable tolling. On the motion for summary judgment, plaintiff argues that the court should have allowed evidence of an oral agreement which differed significantly from the terms of the written retainer agreement.
As to the causes of action to which the demurrer was sustained, we conclude that section 340.6 applies to plaintiff’s causes of action other than his claims for fraud, which are governed by section 338, subdivision (d). We also conclude that all the causes of action accrued no later than the date defendants were relieved from representing plaintiff in the underlying criminal matter. Because that date was more than three years before this action was filed, the action is barred unless an exception or tolling applies. Since the causes of action accrued more than one year before plaintiff was incarcerated, the tolling provisions of section 352.1 do not apply. Nor does equitable tolling. We shall affirm the order sustaining the demurrer. The parol evidence submitted by plaintiff of an oral agreement was admissible within the fraud exception to the parol evidence rule, even though it contradicts the express terms of the written retainer agreement. Under the recent decision of our Supreme Court in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169 (Riverisland), an issue of material fact was raised precluding summary judgment on the breach of contract cause of action. We shall reverse the summary judgment on that cause of action. |
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R.R. (father) appeals from the juvenile court’s jurisdictional and dispositional order adjudging his daughters dependents of the court. He contends that substantial evidence did not support the court’s jurisdictional findings regarding his conduct. V.S. (mother) similarly appeals, contending that substantial evidence did not support the court’s jurisdictional findings regarding her conduct. Mother also argues that the juvenile court erred in its Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) findings, and the court should have ordered the Los Angeles County Department of Children and Family Services (DCFS) to notice the Apache tribe. DCFS cross-appeals and argues that substantial evidence did not support the court’s dismissal of a count against mother under Welfare and Institutions Code section 300, subdivision (a).[1] DCFS does not oppose a limited remand for the trial court to comply with the notice provisions of ICWA.
We reverse and remand for the limited purpose of completing an ICWA investigation and complying with the ICWA notice provisions, but in all other respects, we find no cause to reverse. Additionally, we find that DCFS’s appeal is nonjusticiable and dismiss it. |
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This appeal is limited to a single issue: the amount of presentence custody credit to which defendant is entitled. The amount of such credit is governed by Penal Code section 4019, which has undergone a series of amendments to the recent criminal realignment law. It is not necessary to trace all of the permutations of this statute. It is sufficient for our purposes to observe that, prior to legislation enacted in 2008, the statute provided that, for most defendants, a defendant in local custody could earn two days of conduct credit for every four days actually served (in effect, a one for two ratio). In that year the statute was amended to provide two days of conduct credit for every two days served (in effect, a one for one ratio). That amendment was in force from January 25, 2010 to September 28, 2010. (Stats. 2009-2010, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) In 2010 the statute was changed once again to the previous ratio of one for two. (Stats. 2010, ch. 426, § 2.) It was altered yet again, to provide the two for two ratio, but only for persons whose offense was committed on or after October 1, 2011. That amendment specifically provided that the more generous amount of earnable conduct credit was limited to persons whose commitment offense occurred on or after October 1, 2011. For others, conduct credit “shall be calculated at the rate required by the prior law. (Pen. Code, § 4019, subd. (h).) That is, at the one for two rate. (Stats. 2011, ch. 15, § 482.) Defendant was sentenced to state prison in 2011, for a crime committed in August of that year. Accordingly, he was not eligible to receive the more generous provisions of the conduct credit law.
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In connection with a shooting that occurred on May 2, 2009, a jury convicted appellants Adrian Martinez and Joshua R. Galindez of three felonies: (1) the first degree murder of Victor Solis (Pen. Code, § 187, subd. (a); count 1);[1] (2) the willful, deliberate, and premeditated attempted murder of J.M. (§ 664, § 187; count 2); and (3) shooting at an occupied motor vehicle (§ 246; count 4). With respect to all three counts and both appellants, the jury found true a criminal street gang allegation (§ 186.22, subd. (b)(1)(C)). As to all three counts, the jury also found that Galindez personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)).
In connection with a separate shooting that occurred on May 1, 2009, the jury also convicted Martinez of shooting at an occupied motor vehicle and found true a criminal street gang allegation (§ 246, § 186.22, subd. (b)(1)(C); count 3). The trial court sentenced Martinez consecutively for the May 2 murder and attempted murder, and for the May 1 shooting at an occupied car, to a total term of “75 years [to life].†The court imposed but stayed, pursuant to section 654, the sentence for the May 2 shooting at an occupied car. The trial court sentenced Galindez consecutively for the May 2 murder and attempted murder to a total term of “95 [years] to life.†The court imposed but stayed, pursuant to section 654, the sentence for the May 2 shooting at an occupied car.[2] Appellants raise a number of issues on appeal, including one related to sentencing. We asked for supplemental briefing regarding a second sentencing issue. Although we conclude that the case must be remanded for resentencing of both appellants, we otherwise affirm the judgments. |
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After court trial, appellant Paul Downing was convicted of a violation of Penal Code section 422,[1] making terrorist threats. The court also found that appellant had had four prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d) (the "Three Strikes" law). He was sentenced to state prison for a term of 25 years to life pursuant to the Three Strikes law, plus one year for a prior prison term pursuant to section 667.5, subdivision (b). On this appeal, he contends that there was insufficient evidence for his conviction and that the court abused its discretion when it refused to strike one or more of his prior convictions. Finding no error, we affirm.
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Plaintiff Arlene Bell-Sparrow (plaintiff or Ms. Bell-Sparrow) appeals from the judgment of dismissal entered following the sustaining of a general demurrer to her second amended complaint. We conclude that the trial court, having given plaintiff generous opportunity to correct deficiencies that were pointed out to her in detail, did not err in denying plaintiff leave to file a fourth pleading. In light of this conclusion, we affirm the judgment of dismissal.
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Lina and Alberto Lopez appeal from trial court orders dismissing their first amended complaint for failure to state a claim and entering a judgment of dismissal.[1] Although their brief and the minimal appellate record they have provided make it difficult to discern, it appears their claims concern alleged fraud regarding the mortgage agreement for their home. They contend the magistrate lacked authority to dismiss their case without having ordered any discovery and violated their right to jury trial by doing so. We affirm.
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In this dependency matter, the minor, L.C., was adjudged a dependent child of the court (Welf. & Inst. Code, § 300, subd. (b)) and her mother’s boyfriend, J.M., whom L.C. knew as “daddy,†was found to be her presumptive father (Fam. Code, § 7611, subd. (d)).[1] The juvenile court later vacated its finding of presumed fatherhood, concluding that a 2009 paternity judgment in favor of R.C. conclusively rebutted the presumption that J.M. was the father. J.M. appeals. L.C. joins his argument on appeal. We shall affirm.
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In 2008, during proceedings to dissolve his marriage to appellant Janet Trebowski, Theodore Trebowski[1] revoked a 1999 family trust and executed a revocable trust in his own name. Six months later, he died. Appellant sought to invalidate Theodore's revocation and establish her title to the community assets as successor trustee of the family trust. The successor trustees of Theodore's trust, respondents Mary Ann Gatyas and Robert Trebowski, filed a competing petition to establish the estate's ownership of Theodore's interests in real and personal property. The trial court ruled in respondents' favor and awarded respondents half the proceeds from the sale of the Trebowskis' marital residence in Los Altos Hills.
Appellant seeks reversal, renewing her contention that Theodore's revocation of the family trust was invalid. We find no error, however, and must therefore affirm the judgment. |
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Defendant Irshad Abdisheiku Osman appeals from a judgment of conviction entered after he pleaded no contest to lewd and lascivious act on a child under 14 (Pen. Code, § 288, subd. (a))[1] and admitted that he had substantial sexual contact with the child during the commission of this offense (§ 1203.066, subd. (a)(8)). Pursuant to the negotiated plea agreement, the trial court sentenced him to three years in prison. On appeal, defendant contends that the trial court abused its discretion in failing to reduce his score on the Static-99R risk assessment form. He also contends that the trial court’s failure to correct the probation report violated his constitutional rights to religious freedom and equal protection. We find no error and affirm the judgment.
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Appellant is an undocumented immigrant who is facing the prospect of deportation to her native country, Mexico. Working on the assumption this prospect arose because she pleaded guilty to a deportable offense, appellant claims she should be allowed to withdraw her plea because her attorney failed to warn her it would result in her being deported. However, the record shows appellant was adequately advised of the consequences of her plea. It also shows she was subject to deportation irrespective of her plea due to her status as an undocumented immigrant. Therefore, the trial court properly denied her motion to withdraw her plea.
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Appellant, Douglas William Hysell, an inmate at Pleasant Valley State Prison (Pleasant Valley), filed a petition for writ of mandate naming the Pleasant Valley warden and various Pleasant Valley staff members as respondents. Appellant alleged that respondents had a mandatory duty to deliver packages from approved vendors within 15 days of their arrival and that he had not been receiving his packages within that time limit. In support of his position, appellant set forth various examples of his having received a package late. Appellant further alleged that respondents had improperly rejected the administrative appeals that he had filed regarding his packages. Appellant requested the trial court to order respondents to: timely deliver vendor packages; not retaliate against inmates by withholding packages; and properly file and process appeals.
Respondents demurred to the petition. Respondents argued that appellant had failed to exhaust his administrative remedies in that he did not correct and resubmit the rejected appeals. Respondents further asserted that appellant failed to state a claim for relief because he had not presented an actual case or controversy for resolution. Rather, appellant was seeking an advance order for anticipatory claims. |
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