CA Unpub Decisions

Defendant was convicted following a jury trial of one count of first degree murder (Pen. Code, § 187), and assault with an assault weapon (Pen. Code, § 245, subd. (a)(3)), with associated enhancements for personal and intentional discharge of a firearm, and infliction of great bodily injury or death (Pen. Code, §§ 12022.5, subd. (b), 12022.7, subd. (a), 12022.53, subds. (b), (d)). He received an aggregate state prison term of 65 years to life.
In this appeal defendant claims that the trial court’s refusal to provide him with a free transcript of the trial proceedings in connection with his new trial motion and the sentencing hearing was a denial of his right to effective assistance of counsel. We conclude that the failure of the court to grant defendant’s request for a transcript was not prejudicial error, and affirm the judgment.

Appellant United States Fire Insurance Company (U.S. Fire) paid various costs in defending and settling seven lawsuits alleging asbestos-related injuries. It brought this case to recover a portion of these costs from respondents Arrowood Indemnity Company and United States Fidelity and Guaranty Company (USF&G). Following a four-day bench trial, the trial court agreed that respondents were responsible for a portion of the costs and calculated their share to be $177,715.10. In this appeal, U.S. Fire maintains that this amount was too low and that the trial court misapplied principles of insurance law by limiting respondents’ liability on the basis of contractual indemnity provisions. We disagree and affirm.

In the early morning hours of November 7, 2009, Lathel Douglas, Jr., was shot and wounded in front of his father’s home in North Richmond. His father, Lathel Douglas, Sr., was shot and killed.[1] Appellant Charles Turner was convicted by jury of the second degree murder (Pen. Code, § 187)[2] of Douglas Sr. and attempted voluntary manslaughter (§§ 192, 664) of Douglas Jr. Turner was sentenced to a term of 47 years to life in state prison. On appeal, Turner contends that: (1) certain of Douglas Jr.’s statements to police were coerced and that their admission at trial violated Turner’s right to a fair trial; and (2) that the trial court violated Turner’s due process rights by misinstructing the jury on use of evidence of other offenses to prove identity (CALCRIM No. 375). We affirm.

While conducting a routine patrol in territory claimed by a gang, police officers saw a group of people, including appellant, standing on a basketball court. When someone shouted a warning about the presence of the police, the group scattered and ran. The police pursued them, and one of the officers saw appellant throw a gun into the street. After appellant was arrested, a broken Ecstasy pill was found in his pocket.
Appellant was convicted of a felony count of carrying a loaded firearm in public while an active participant in a street gang, with an enhancement for committing the crime for the benefit of a gang and with the intent to assist, further, or promote criminal conduct by gang members. He was also convicted of possessing a gun after being convicted of a misdemeanor (also with a gang enhancement), and of possessing a controlled substance while armed with a gun. We conclude that the prosecution failed to prove that appellant actively participated in a street gang while carrying the gun. We therefore reverse the felony gun possession conviction, and remand for further proceedings.

Plaintiffs Anthony and Isabelle Ramos sued U.S. Bank National Association (the Bank), the Endres Law Firm, and David Endres alleging that an unlawful detainer action filed against the Ramoses by the firm on behalf of the Bank was brought maliciously, without probable cause. The Ramoses also alleged that the Bank and the Endres firm violated the Unfair Business Practices Act (Bus. & Prof. Code §§ 17200 et seq.) by engaging in a pattern and practice of filing unfounded and malicious unlawful detainer actions in disregard of tenants’ rights. Endres filed a special motion to strike the complaint, and the Bank brought a special motion to strike the malicious prosecution cause of action. The trial court granted both motions and dismissed the action in its entirety. We affirm, except with respect to the order striking the Ramoses’ cause of action for unfair business practices against the Bank; this was error because the Bank did not file a motion to strike that cause of action.

Defendant Mario Juan Butkovic was charged with sale of a controlled substance while armed with a firearm (Health & Saf. Code, § 11379, subd. (a); Pen. Code, § 12022, subd. (c) - count one), possession of a controlled substance for sale while armed with a firearm (Health & Saf. Code, § 11378; Pen. Code, § 12022, subd. (c) - count two), possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a) - count three), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1) - count four), and possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1) - count five). The trial court denied defendant’s Pitchess[1] motion and his motion to suppress evidence pursuant to Penal Code section 1538.5. Defendant pleaded no contest to counts one, three, and five in order to receive a stipulated sentence of three years and eight months. Counts one and four were dismissed. The trial court sentenced defendant to a term of three years and eight months in state prison. Defendant filed a timely notice of appeal.

Defendant Juan Felipe Melendez appeals after conviction, by jury trial, of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),[1] attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)), possession of a silencer (former § 12520), possession of material with intent to make a destructive device (former § 12312), possession of metal knuckles (former § 12020, subd. (a)(1)), dissuading a witness (§ 136.1, subd. (c)(1)), and conspiracy to commit robbery (§ 182, subd. (a)(1)). The jury found true allegations that he personally used a firearm in the commission of the robbery and attempted robbery (§ 12022.53, subd. (b)), personally used a firearm in the commission of the conspiracy (§ 12022.5, subd. (a)), and was armed with a firearm while dissuading a witness (§ 12022, subd. (a)(1)). Defendant pleaded guilty to possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) He was sentenced to a 16-year prison term and ordered to pay a number of fees and fines.
On appeal, defendant contends the prosecutor committed misconduct that was prejudicial as to count 5, his conviction of possession of material with intent to make a destructive device. (Former § 12312.) We will order the judgment modified to include applicable penalty assessments on the fees and fines, but otherwise affirm.

Defendant Deni Urosevic pleaded no contest to grand theft (Pen. Code, §§ 484, 487, subd. (a))[1] and receiving, concealing, or withholding stolen property (§ 496, subd. (a)). He also admitted that he had served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to county jail for two years pursuant to section 1170, subdivision (h). The court ordered that 16 months of the two-year term be served in jail and that the remaining eight months be served under “community supervision” (hereafter, sometimes mandatory supervision) with various terms and conditions (see § 1170, subd. (h)(5)(B)). The court also ordered defendant to pay a monthly supervision fee of $110 pursuant to section 1203.1b during the eight-month period of supervision, a suspended parole revocation restitution fine of $800, and a criminal conviction assessment of $80.
On appeal, defendant contends that the monthly supervision fee of $110 is unauthorized and must be stricken and that, even assuming such a fee is statutorily authorized, there is insufficient evidence to support a finding of his ability to pay the fee. Defendant also argues that the parole revocation restitution fine is unauthorized and must be stricken, and that the criminal conviction assessment must be reduced to $60. Defendant further contends that his appellate claims have not been forfeited and that, to the extent they have been forfeited, his counsel rendered ineffective assistance.
For reasons that we will explain, we conclude that the monthly supervision fee and the parole revocation restitution fine are unauthorized, and that the criminal conviction assessment must be reduced. We will strike the unauthorized amounts, reduce the criminal conviction assessment to $60, and affirm the judgment as so modified.

Appellant Robert Gregg Moore appeals from a stipulated judgment entered after the superior court granted a motion by defendants Bebe au Lait, LLC (Bebe) and Claire and Ronnie Ekelund for summary adjudication of Moore’s breach of contract cause of action against them and granted their motion to strike references to a 12 percent interest rate in Moore’s amended complaint on the ground that it was usurious. Moore contends that the superior court’s orders were erroneous because there were triable issues about the application of a release to the breach of contract cause of action and his amended complaint established that transaction was not usurious. We reject his contentions and affirm the judgment.

Appellants Donna May and Shellie May appeal from a judgment of dismissal in favor of Bank of America (BofA) after the trial court sustained BofA’s demurrer without leave to amend. Appellants accused BofA of negligence after they were defrauded in a real estate scheme.
We affirm. BofA owed no duty of care to appellants, who were not BofA customers. The special circumstances that might create a duty of care are not present here. The trial court properly sustained BofA’s demurrer and dismissed it from the case.

The subtext of this date-of-valuation-of-a-community-business case illustrates a lesson for family law practitioners in how a strategy can backfire. Often, the spouse who doesn’t manage a community business – the “nonoperating” spouse – worries about the dissipation of the business’s assets in the period between the date of separation and the date of trial. Accordingly, it is often the nonoperating spouse who brings a motion to value the business as of the date of separation, not the date of trial. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶ 8:1383, p. 8-330.2.) By contrast – at least in the typical dissipation scenario – operating spouses have no incentive to value a community business as of the date of separation. Time is on their side as value slip slides away.
In the present case, in line with the habitude of community businesses to decline in value in the post-separation period, the operating spouse sat back during the four-year period between the date of separation and the looming trial date, confident the community share of the business (a two-man design partnership) would be valued at a figure less than its value as of the date of separation. After all, the CPA firm jointly hired to value the business had, in 2009 – about a year and a half before trial in 2011 – valued the community’s share at $198,000. The $198,000 figure was comfortably less than the $226,000 figure at which the same accountants had valued the community share at the 2006 date of separation.

Defendant Bobby Angel Alvarez appeals from the judgment of conviction entered against him after a jury trial. Before trial, the prosecution had offered defendant a negotiated disposition by which defendant would plead guilty to an assault offense and, inter alia, be placed on formal probation under terms and conditions including that he serve 365 days in jail. Defendant accepted the prosecution’s offer, but the trial court refused to accept the agreement.
We reverse. Based on the record before us and for the reasons we explain in detail, the trial court erred by not accepting the negotiated disposition agreement reached by defendant and the prosecution. The only suitable remedy is specific enforcement of defendant’s written negotiated disposition agreement with the prosecution; therefore, on remand, we direct the trial court to accept that agreement.

John Hatziris (Hatziris) appeals from a judgment awarding Ramzy Girgis Awada Saad (Saad) damages for personal injuries Saad sustained during a low-speed traffic collision. A jury found Hatziris’s negligent driving caused Saad’s physical injuries and awarded $121,083 in damages for economic and noneconomic losses, including $75,000 for future medical expenses. After the trial court denied Hatziris’s motion for a new trial, Hatziris filed this appeal, asserting the trial court erred by refusing to admit four sub rosa videos depicting Saad’s activities on several days between October 2010 and June 2011. His contention lacks merit, and we affirm the judgment.
I

It was alleged in a juvenile wardship petition (Welf. & Inst. Code, § 602)[1] filed January 25, 2012, that appellant, Jose R., a minor, committed two counts of violating Penal Code section 288, subdivision (a) (lewd or lascivious act upon a child under the age of 14). On March 19, 2012, the Tulare County District Attorney filed a notice stating appellant was eligible for deferred entry of judgment (DEJ) under section 790, et seq. That same day, appellant admitted the allegations of the petition, and the court found the allegations true and referred the matter to the Tulare County Probation Department for a report and recommendations. The probation officer’s report (RPO) was filed on April 13, 2012, and on April 17, 2012, at a contested hearing, the court found appellant unsuitable for DEJ, adjudged him a ward of the court and placed him on formal probation.
On appeal, appellant’s sole contention is that the court abused its discretion in finding appellant unsuitable for DEJ. We affirm.