CA Unpub Decisions

On August 5, 2010, pursuant to a plea bargain, Quentin Lee Dew entered no contest pleas to charges of second degree robbery and attempted grand theft in Superior Court, San Mateo County, case number SC071279A (Case One). (Pen. Code, §§ 212.5, subd. (c), 487, subd. (a).)[1] He also admitted the robbery count constituted a violent felony conviction (§ 667.5, subd. (c)(9)) and admitted a criminal street gang enhancement associated with the robbery count. Dew entered his pleas and admissions on the understanding that the court would strike the punishment attributable to the gang enhancement and that he would not receive a state prison sentence of more than two years. Dew’s counsel stipulated there was a factual basis for his no contest plea and admission. On the prosecution’s motion, the court then dismissed other charges against Dew in accordance with the negotiated plea.

Duane Joachim (Joachim) appeals from a judgment of conviction and sentence after a jury found him guilty on two counts of receiving stolen property. (Pen. Code, § 496, subd. (a).)[1] He contends: the trial court erred in admitting his prior conviction for receiving stolen property under Evidence Code section 1101, subdivision (b); and (2) the prosecutor committed misconduct when he asserted in closing argument that the van Joachim was driving was “littered with” or full of stolen property, and by suggesting that Joachim was the one who not only possessed the stolen property, but stole it. We will affirm the judgment.

A jury found defendant William Ray Seymore guilty as charged of possessing a sawed-off shotgun (Pen. Code, former § 12020, subd. (a)(1)), following which defendant admitted an allegation that he had a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to state prison for a total term of three years. On this timely appeal, defendant presents claims of trial court error in: (1) allowing the admission of impermissible evidence; (2) permitting prosecutorial misconduct; (3) and instructing the jury improperly. Defendant also contends that he did not receive the constitutionally-guaranteed benefit of the assistance of effective counsel. We conclude that no prejudicial error occurred during defendant’s trial, and therefore affirm the judgment of his conviction.

In this marital dissolution action, appellant William R. Fry (Randy) challenges the trial court’s July 18, 2011 order directing him to pay temporary spousal support arrearages to respondent Laurie E. Fry (Laurie)[1] for the period of 2004 through 2008. Randy contends that the trial court erred in (1) awarding temporary spousal support in an amount that exceeds Laurie’s needs; (2) ordering that interest on the award of temporary spousal support run from December 31, 2008; and (3) awarding Laurie sanctions in the amount of $5,000 under Family Code section 271.[2] For the reasons stated below, we conclude that the trial court did not abuse its discretion and therefore we will affirm the order.

Petitioner S.S., the maternal grandmother and prospective adoptive mother of child 1 and child 2 (collectively the children), now four and two years old, respectively, challenges an order removing the children from her care pursuant to Welfare and Institutions Code section 366.26, subdivision (n) (all statutory references are to this code). She claims the court abused its discretion when it removed the children because there was insufficient evidence removal was in their best interests, and it failed to consider the children’s circumstances at the time of removal.
Real party in interest Orange County Social Services Agency (SSA) opposes the petition, arguing there was sufficient evidence to support the court’s discretionary ruling ordering removal. The children joined in SSA’s opposition.
We conclude the court did not abuse its discretion and deny the petition.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant.
Defendant Frank Espinoza pleaded guilty to violating Penal Code section 273.5, subdivisions (a), (e)(2) domestic battery, and Penal Code section 166, subdivision (c)(1) violation of a protective order. (All statutory references are to the Penal Code.) In support of his guilty plea, defendant offered the following statement which was signed by both him and his lawyer: “On August 13, 2011, in Orange County, I willfully and unlawfully inflicted corporal injury resulting in a traumatic condition upon Elizabeth Blanco-Haros, my girlfriend who I was living with and cohabiting with at the time, by grabbing her by the hair and arms and dragging her on the floor causing visible injuries to her body. [¶] I also admit that I was previously convicted of a violation of Penal Code section 243 [subd.] (e)(1) on March 11, 2010 in Los Angeles Superior Court case number CITOJB0203001. [¶] On October 12, 2012, in Orange County, I willfully, knowingly, and unlawfully, violated a protective and stay away order issued by a court pursuant to Penal Code section 136.2 in a pending criminal proceeding involving domestic violence as described in Penal Code section 13700, by contacting Elizabeth Blanco-Haros knowing that my actions were in violation of the court order.” Prior to accepting his guilty plea, the court read those facts aloud to defendant and asked him whether those facts are true and correct. Defendant responded: “Yes, Sir.”
Defendant was advised of his rights and the possible consequences of pleading guilty. The court found he understood his rights and that he waived them. The maximum sentence defendant faced for committing the crimes he admitted was four years in prison. The court suspended imposition of sentence and placed defendant on formal probation for five years. Defendant accepted the terms and conditions of probation. One of the terms and conditions of probation was serving 180 days in jail.

Defendant Hares Ajmal Ahmadzai appeals the denial of his second motion to vacate judgment pursuant to Penal Code[1] section 1016.5. We dismiss the appeal because as defendant pled guilty and his motion to vacate the judgment challenges the validity of his guilty plea, defendant was required to obtain a certificate of probable cause in order to appeal the denial of his motion. (People v. Placencia (2011) 194 Cal.App.4th 489, 491-492.)

This case comes to us from a demurrer to a second amended complaint, sustained without leave to amend.[1] Demurrers favor the complainaint. All facts stated in the complaint must be assumed true, even if those facts are counterintuitive. Moreover the plaintiff receives the benefit of all reasonable inferences from those facts. (E.g., Mosby v. Liberty Mutual Ins. Co. (2003) 110 Cal.App.4th 995, 999.) There is indeed much in the second amended complaint in this case which is both counterintuitive and, as the trial judge correctly noted, vague. There are obvious gaps and unanswered questions. It is as if the second amended complaint had come into the court like Richard III, unfinished, sent before its time, and scarce half made up.
Be that as it may, the defendant mortgage company did not engage in what a leading treatise on civil procedure notes to be the dubious effort of forcing the plaintiff borrower to answer the unanswered questions by a series of demurrers for uncertainty.[2] Rather, the mortgage company went for a quick coup de grace, a demurrer based on the theory the forbearance agreement signed by the borrower unambiguously provided for a payment of $12,685.89 on November 1, 2009, and the borrower had failed to allege she made that payment.
We reverse for two reasons. First, the text of the forbearance agreement did not unambiguously provide for payment of $12,685.89 on November 1, 2009. When scrutinized, the text of the agreement is larded with ambiguity. (The trial judge, more charitable than we, simply observed it was “hardly a model of clarity.”) As we show below, the text was reasonably susceptible of the interpretation the payment might have been spread out “over time.” Second, the reasonableness of the possibility of the payment being spread out over time is corroborated by the factual allegations of the second amended complaint, which alleges that prior to November 1, 2009, the mortgage company sent the borrower a payment coupon book, including payments to begin on the very date of the ostensible $12,685.89 payment. That action – at least on the limited facts before us – could readily lead a reasonable borrower to conclude the coupons reflected that the $12,685.89 – otherwise due on November 1, 2009 – might be spread out over time. Thus, the demurrer was not well taken.

Appellant was convicted of aggravated assault, making a criminal threat, possessing a weapon on school grounds and actively participating in a criminal street gang, aka street terrorism. The jury also found to be true enhancement allegations appellant used a knife and acted for the benefit of a gang. We hold there is sufficient evidence to uphold the gang enhancement. However, because appellant acted alone in committing his crimes, his conviction for street terrorism must be reversed. In all other respects, we affirm the judgment.

At a hearing held pursuant to Welfare and Institutions Code section 366.26,[1] the trial court terminated the parental rights of defendant and appellant A.C. (Mother) with respect to her four children. On appeal, Mother contends the court erred when it denied her a hearing on her request to change court order, commonly referred to as a section 388 petition. We reject this argument and affirm the trial court’s orders.

Defendant and appellant Jaime Saul Morales appeals after a jury convicted him of several sex offenses committed against a minor. He raises the single contention that the trial court erred in imposing consecutive sentences on two of the counts, because there is no way to determine whether the offenses occurred on “separate occasions,” within the meaning of former Penal Code section 667.6, subdivision (d). We affirm.

The sole issue in this appeal is whether the juvenile court abused its discretion at the disposition hearing by not placing the children with the maternal grandparents and instead placing them with other relatives. We find no abuse of discretion and thus affirm the judgment.

On June 27, 2011, after a six-day trial and less than three and one-half hours of deliberation, a jury found Amin Esmaeili guilty of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))[1] with personal infliction of great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) (count 1); two counts of residential burglary (§ 459, 460) (counts 2 and 4), one with a person other than an accomplice present (§ 667.5, subd. (c)(21)) (count 2); attempted first degree robbery (§§ 664, 211, 212.5, subd. (a)) with personal infliction of great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) and personal use of a deadly or dangerous weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)) (count 3); and failing to comply with a peace officer's lawful order (Veh. Code, § 2800), a misdemeanor (count 5). On December 12, the court sentenced Esmaeili to six years in prison on count 1—the three-year middle term for assault and three years for personal infliction of great bodily injury, with concurrent terms on the remaining counts. Esmaeili appeals, contending the court abused its discretion in denying his application for release of juror information and for further investigation of the identity of a juror who allegedly engaged in serious misconduct. Alternatively, Esmaeili contends he received ineffective assistance of counsel. We affirm.

Defendants Guillermo Martinez Regalado, Sr. (Senior) and his son Guillermo Martinez Regalado, Jr. (Junior) appeal judgments following their jury convictions of first degree murder and related offenses. On appeal, Senior contends: (1) the trial court prejudicially erred by instructing the jury it could not find him guilty of a lesser offense than Junior; (2) the prosecutor committed prejudicial misconduct; and (3) the trial court erred by not instructing sua sponte on voluntary intoxication as a defense to the two criminal threat counts against him. In a separate appeal, Junior filed a Wende[1] brief, mentioning possible, but not reasonably arguable, issues as discussed below.