CA Unpub Decisions

Plaintiffs Alexander and Alejandra Magallanes sued defendant Bank of America for fraud and other alleged causes of action arising from a loan they obtained on their home and a deed of trust securing the loan. Defendant successfully demurred to the complaint, the first amended complaint, and the second amended complaint. A third amended complaint was then filed, and defendant’s demurrer was sustained without leave to amend. Judgment was entered on July 28, 2011.
Plaintiffs appeal, contending generally that they alleged facts sufficient to state various causes of action and that the trial court abused its discretion in sustaining the demurrer without leave to amend.

Ai Phimmasone was convicted by a jury of felony evading a police officer (Veh. Code, § 2800.2, subd. (a).)[1] He waived jury trial on and admitted allegations he had served four prior prison terms (Pen. Code § 667.5) and a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). The court denied Phimmasone's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced him to a prison term of nine years, consisting of the upper term of three years doubled for the current offense under the three strikes law (Pen. Code, § 667, subds. (b)-(i)), plus three additional consecutive one-year terms for three of Phimmasone's prior prison terms; the court struck the one-year enhancement for the fourth prior prison term because it was based on the prior strike conviction. Phimmasone appeals. We affirm the judgment.

A complaint filed in May 2012, charged F.B. with assault with a deadly weapon with personal use of a deadly weapon (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23); all further statutory references are to this code) and vandalism (§ 594, subds. (a), (b)(1)), and alleged she had served a prior prison term (§ 667.5, subd. (b)). In August, the court found F.B. was not mentally competent to stand trial and lacked capacity to give or withhold informed consent to the administration of antipsychotic medication. The court ordered F.B. committed to Patton State Hospital for a maximum term of three years and authorized involuntary administration of antipsychotic medication. F.B. appeals. We affirm.

Michael Yamasaki was convicted of two counts of burglary (Pen. Code, § 459); possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)); possessing a hypodermic syringe, a misdemeanor (Bus. & Prof. Code, former § 4140); and possessing not more than 28.5 grams of marijuana, an infraction (Health & Saf. Code, § 11357, subd. (b)). Yamasaki was found to have served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced him to six years in prison: the three-year upper term on one of the burglary counts, concurrent terms on the other two felony counts and one year for each prison prior. The record does not disclose when or how long Yamasaki was in custody before sentencing or what custody and conduct credits the court initially awarded.
On June 5, 2012, Yamasaki filed an ex parte application in the trial court for a correction of presentence credits. He asserted he had been in custody from July 9, 2009, to November 23, 2009, and was entitled to 137 days' actual credit and 68 days' conduct credit, rather than the 79 days' actual credit and the 38 days' conduct credit the court had awarded. On June 13, 2012, the court filed a minute order, nunc pro tunc to March 30, 2011, reflecting 79 days' actual credit and 78 days' conduct credit, a total of 157. Yamasaki appeals the June 13 order.

David Barba Duran appeals from the judgment entered following revocation of probation previously granted after his plea of no contest to inflicting corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)). Duran received a four-year prison term after the revocation.

L.T. and Timothy W. (together the parents) appeal a juvenile court judgment removing their minor daughter, T.W., from their custody following true findings made on a Welfare and Institutions Code[1] section 387 supplemental petition. The parents challenge the sufficiency of the evidence to support the court's findings that the previous placement with L.T. was ineffective in protecting T.W., and T.W.'s removal from parental custody was necessary to prevent substantial danger to her. We conclude substantial evidence supports the court's jurisdictional findings and dispositional order as to the section 387 supplemental petition.
T.W. also appeals, contending the court erred by granting L.T. six more months of reunification services because the services she already received exceeded the statutory limit of section 361.5. We conclude the time limits for services set forth in section 361.5 did not become operable until T.W. was removed from the custody of both parents at a disposition hearing on the section 387 petition. Because the parents have now used up some of their entitlement to services under section 361.5, we remand the matter to have the juvenile court determine whether to continue or terminate their services under current circumstances.

A jury convicted Darren Martinez and Hector Martinez of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1); assault with a semi-automatic firearm (§ 245, subd. (b); count 2); and assault with force likely to cause great bodily injury (§ 245,
subd. (a)(1); count 3). It additionally convicted Darren of assault with a deadly weapon and force likely to cause great bodily injury (§ 245, subd. (a)(1); count 4) and two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); counts 5 and 6). The jury found true allegations that each crime was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); the appellants were principals in the commission of the murder, and a principal used a firearm and proximately caused great bodily injury and death (§ 12022.53, subds. (d), (e)(1)); in the commission of the murder, Darren intentionally and personally discharged a firearm, proximately causing great bodily injury and death (§ 12022.53, subd. (d)), and personally used a firearm (§ 12022.5, subd. (a)); Darren personally used a firearm in the commission of the count 2 assault (§ 12022.5, subd. (a)); and Darren personally used a deadly weapon and inflicted great bodily injury in the count 4 assault (§ 1192.7, subds. (c)(8), (23)). The jury also found true that Hector was vicariously armed with a firearm in the commission of the murder (§ 12022, subd. (a)), and was 16 years or older when he committed the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)).
The court sentenced Darren to a determinate term of 14 years plus an indeterminate term of 50 years to life. It sentenced Hector to a determinate term of six years plus an indeterminate term of 50 years to life.
Hector contends his murder conviction must be reversed because the court failed to properly instruct the jury on the natural and probable consequences doctrine of liability for aiders and abettors. He alternatively contends his attorney provided ineffective assistance by failing to object to the jury instructions on that doctrine. Darren contends the court prejudicially erred in admitting expert testimony that counts four through six were gang motivated. Appellants both contend there was no substantial evidence to support the count three conviction for assault by means of force likely to produce great bodily injury; and the abstracts of judgment must be amended to correct certain errors. They both join in each other's contentions as applicable. We affirm the judgments, but direct the trial court to amend the abstracts of judgment to correct the errors identified by appellants.

C.H., mother of the minor, appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Mother contends the juvenile court abused its discretion in granting the Sacramento County Department of Health and Human Services’ (Department) petition for modification seeking placement of the minor in her prospective adoptive relative’s home. She also contends the evidence does not support the juvenile court’s finding the minor is generally adoptable. As to the first contention, mother does not have standing to raise this contention on appeal. On the second contention, we conclude there is substantial evidence in the record to support the juvenile court’s finding that the minor is generally adoptable. Accordingly, we affirm the orders of the juvenile court.

Defendant Yuriy Ivanovich Larshin pleaded no contest to stalking. (Pen. Code, § 646.9.)[1] Pursuant to the agreed-upon disposition, defendant was granted probation. After violating probation twice, the trial court revoked defendant’s probation and sentenced him to a term of 16 months.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110.)
In September 2010, defendant repeatedly threatened his brother and his brother’s family. Defendant’s brother took these threats seriously.
Defendant was charged with possessing a false bomb (§ 148.1, subd. (d)), three counts of making criminal threats (§ 422), and one count of stalking (§ 646.9). The parties reached a plea agreement under which defendant pleaded no contest to stalking, the remaining counts were dismissed, and defendant would not receive a state prison term at the outset. Upon his successful completion of probation, the charge was to be reduced to a misdemeanor.

Plaintiffs David and Regina Blackhurst, who are spouses, brought the present action against defendant Elisa Ungerman in propria persona.[1] They alleged various theories (including legal malpractice) under which they incurred damages as a result of Ungerman’s representation of them. That representation included a previous action against Regina’s former employer, and a subsequent dispute arising among Ungerman, her former law firm, and Regina over their entitlement to legal fees out of the substantial settlement that Regina had received in the underlying action. The trial court sustained Ungerman’s demurrer to the Blackhursts’ third attempt at pleading their case. As to David, the court found he did not have standing to pursue the present action because he had dismissed his claims in the underlying action shortly after retaining Ungerman’s services. Thus, the court sustained the demurrer without leave to amend and entered a judgment of dismissal in June 2009 as to him.[2] In November 2009, it awarded Ungerman her legal fees pursuant to the contingency fee agreement that David had executed with her.
David filed a notice of appeal in November 2009 from the judgment of dismissal and the order awarding legal fees, which was timely as to the former because he was never served with notice of its entry. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 581, p. 661 (Witkin).) However, the trial court did not process his notice of appeal until February 2011. The record on appeal was filed in July 2011. Briefing was completed in September 2012 after the parties both obtained substantial extensions of time to file their briefs.

Following the denial of his motion to suppress the evidence ( ADDIN BA xc <@st> xl 19 s DBNIFN000001 xpl 1 l "Pen. Code, § 1538.5" Pen. Code, § 1538.5)[1], defendant Gary Daniel Easley pleaded no contest to misdemeanor possession of methamphetamine ( ADDIN BA xc <@st> xl 38 s DBNIFN000002 xpl 1 l "Health & Saf. Code, § 11377, subd. (a)" Health & Saf. Code, § 11377, subd. (a)) in exchange for deferral of judgment and dismissal of the remaining charges. Defendant was granted deferred entry of judgment (diversion) under the provisions of ADDIN BA xc <@osdv> xl 20 s DBNIFN000033 l "section 1000 et seq." section 1000 et seq., but thereafter twice admitted failing to comply with the terms of his diversion. Following defendant’s second violation, the trial court terminated his diversion, placed him on 24 months summary probation, and ordered him to serve 90 days in county jail.
Defendant, in pro. per., appeals, contending the trial court erred in denying his motion to suppress, holding him over to trial following his preliminary hearing, and denying his motion to disqualify Judge Eddie Keller. Defendant also contends his trial counsel was ineffective, and that defendant was not required to abide by the terms and conditions of his deferred entry of judgment based on the state’s representation in a federal habeas proceeding that it did not have custody over him in this case. Having reviewed the entire record, we discern no error by the trial court and shall conclude that defendant failed to meet his burden of establishing his trial counsel was deficient and/or that defendant was prejudiced by trial counsel’s alleged deficiencies.[2] Accordingly, we shall affirm the judgment.

This is an appeal from the trial court’s restitution orders following defendant Frederick Tucker’s no contest plea. His plea was the subject of an earlier appeal, case No. B237866, which was dismissed by this court for failure to obtain a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) Defendant’s appellate counsel has asked this court to take judicial notice of the record in that case for purposes of determining the procedural history and facts underlying defendant’s conviction. We grant the motion and take judicial notice of the appellate record in defendant’s earlier appeal. (Evid. Code, § 452.)
According to the preliminary hearing transcript, defendant made various misrepresentations to induce consumers to refinance their homes. He collected application and appraisal fees, and had customers sign cancellation agreements, requiring them to pay a fee to his company in the event that the customer did not proceed with the loan. Customers cancelled loan applications when the loans were not timely processed, or when it was discovered that the loans’ actual terms differed from what was promised by defendant. Defendant and his company then sued customers to collect the cancellation fees. All of this was done in violation of a permanent injunction obtained by the Los Angeles County District Attorney’s Office on June 22, 2000, prohibiting defendant from engaging in this kind of conduct.

A modification decision.

Appellant Dori Bates appeals from a judgment of dismissal following the sustaining of a demurrer to her first amended complaint. The order sustaining the demurrer was with leave to amend but appellant did not amend, and the judgment followed after her time to amend had expired. The demurrer was brought, and the order sustaining it was made, on multiple grounds, including uncertainty, failure to state a cause of action on various grounds, failure to make a timely claim, and the discretionary act immunity. It is not necessary to discuss all of these grounds since at least one of them, discretionary act immunity, commands the result on appeal.
The thrust of the appeal concerns the purported illegality of what appellant and the trial court refer to as the “stroller rule”. Essentially, appellant alleges that on July 22, 2010, as well as on many other occasions, she attempted to board a public transportation bus operated by respondent Los Angeles County Metropolitan Transit Authority (MTA). She was pushing a stroller at the time, and the driver refused to allow her to board, despite knowledge by MTA that she had a disabled person pass. Instead, the driver closed the doors of the bus on the double stroller she was pushing. Appellant’s one and one-half-year-old grandchild was in the stroller, which was fully opened. The opened stroller was 46 inches long, 48 inches high and 16 inches wide. It was loaded underneath and on the bars used for pushing with bags of groceries. Altogether it weighed 62 to 69 pounds. ~CT 49)~ The bus driver would not allow appellant to board with the open stroller because of the MTA’s “stroller rule”, which appellant sets out in full in her complaint.