CA Unpub Decisions

A jury convicted defendant Kelly Sean Spencer of stalking (Pen. Code, § 646.9, subd. (a))[1] and two counts of making criminal threats (§ 422). His victim was a wheelchair-bound woman suffering from cerebral palsy.
On appeal, defendant contends the court erred by failing to stay execution of sentence on his criminal threat convictions pursuant to section 654. Additionally, he petitions for a writ of habeas corpus, contending he was denied the effective assistance of counsel at sentencing because his attorney failed to request a hearing on his financial ability to pay the costs of the probation report. We consolidated his petition with his appeal. We now deny his petition and affirm the judgment.

In April 2011, then 14‑year‑old Alan B. walked into a drug store, took four candy bars from a shelf, concealed the candy bars in his pants, and walked out of the store without paying for the candy bars. Alan was immediately confronted by a security guard who had seen Alan steal the candy bars and asked Alan to return to the store. Alan started to run away and the security guard gave chase. As the security guard got close to Alan, Alan threw the skateboard that he had been carrying; the skateboard struck the security guard in the head. The juvenile court found Alan had committed one count of robbery and one count of aggravated assault as alleged in a juvenile dependency petition (the petition), sustained the petition, and declared Alan a ward of the court under Welfare and Institutions Code section 602.

Appellants SCC Acquisitions, Inc. and Bruce Elieff (collectively appellants), guarantors on a loan by respondent Central Pacific Bank (the bank) to Fillmore Sun LCC (Fillmore Sun), appeal from a judgment of the superior court denying them relief and finding in favor of the bank on appellants’ cross-complaint. Appellants contend the trial court erred in instructing the jury. Finding no error, we affirm.

Michael David Balderas appeals from his convictions for second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. Balderas contends the trial court erred by failing to question his competence to stand trial and hold a competency hearing. We find the evidence insufficient to show Balderas could not understand the proceedings or assist his counsel and, accordingly, we affirm the judgment.

In this marital dissolution appeal, husband challenges the inclusion in the property division of the proceeds from the sale of a boat and the award of spousal support to wife. We find no error and affirm.

Plaintiff Waleed Mari, doing business as Waleed Mari & Associates, retained the surveying services of defendants, Rodrick H. Hawkins, doing business as Hawkins & Associates Engineering, and Hawkins & Associates Engineering, Inc., to determine the corners and boundaries of plaintiff’s land. The survey performed by defendants was in error, which plaintiff did not discover until after he had relied on it to his detriment. Plaintiff filed a lawsuit for damages in superior court, alleging both contract and tort causes of action against defendants. At the same time, plaintiff demanded arbitration of the dispute pursuant to the terms of the parties’ contract. One month later, the parties agreed to proceed in superior court rather than go to binding arbitration. Following a bench trial, the trial court found that plaintiff prevailed on his cause of action for professional negligence and a monetary judgment was entered in his favor. Plaintiff moved for recovery of his attorney fees pursuant to paragraph 37 of the parties’ contract. The trial court denied the motion on the ground that paragraph 37 only authorized an award of attorney fees in the limited context of arbitration proceedings. Plaintiff appeals from that order, arguing that the trial court misconstrued the terms of the contract regarding attorney fee recovery. We will affirm.

Roger F., a minor, was found by the juvenile court to have molested two children and to have committed related offenses against them. The court committed Roger to the Division of Juvenile Facilities[1] with a maximum confinement time of 13 years 8 months. In this appeal, he argues that none of the court’s findings were supported by sufficient evidence. His contentions are based mainly on an attack on the credibility of the victims. We affirm.

On October 22, 2010, a jury returned verdicts finding appellant guilty of the following substantive offenses: count 1 – failure to update an annual registration as a registered sex offender (Pen. Code,[1] § 290.012, subd. (a)); and count 2 – failure to file an initial registration after a change of address as a registered sex offender (§ 290, subd. (b)). That same day, appellant admitted that he had sustained a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)) and had served a prior prison term (§667.5, subd. (b)).
On December 13, 2010, the court denied appellant probation and sentenced him to a total term of six years four months in state prison. The court imposed the doubled middle term of four years on count 1 and the term of 16 months, representing one-third of the doubled middle term, on count 2.The court imposed a consecutive one year term for the prison prior.
On December 16, 2010, appellant filed a timely notice of appeal.

Appellant/defendant Gilberto Diaz Sanchez was convicted of three counts of second degree murder, one count of attempted second degree murder, and four counts of kidnapping, based on an incident where he held four men at gunpoint in a house, repeatedly threatened to kill them, and forced them into a vehicle. He followed the vehicle as his accomplice, Gabino Luis Basurto (Basurto), drove the four men into the field and fatally shot three of them—Rafael Moreno Espinoza (Rafael); his brother, Eraclio Moreno Espinoza (Eraclio); and Juan Zepeda Valencia (Juan), also known as Carlos Albert Figueroa. The fourth man, Cuahutemoc Valencia (Valencia), ran away as the other men were murdered and survived the harrowing incident.[1]
On appeal, defendant contends that his convictions as an aider and abettor of murder and attempted murder are not supported by substantial evidence, based on his pretrial statements and trial testimony that he did not know Basurto was going to kill the victims. He also challenges the evidence in support of two of the four kidnapping convictions. Finally, he contends the jury improperly received the flight instruction. We will affirm.[2]

Defendant appeals after pleading guilty to a single theft charge resulting from a scheme to defraud thousands of homeowners. He was sentenced to time served and placed on probation for three years. We affirm the conviction.

On June 18, 2010, a felony complaint charged defendant and appellant Leticia Maria Anderson-Boyko with theft under Penal Code[1] sections 484, subdivision (a) and 666. On September 2, 2011, the complaint was orally amended to add a count of second degree burglary under section 459. Thereafter, defendant pled guilty to the charge of second degree burglary, in exchange for a stipulated low term to be served concurrently to any other commitment. Moreover, count 1 for felony theft was dismissed in the interest of justice under section 1385.
The trial court sentenced defendant immediately following the plea. The court imposed the stipulated low term of 16 months. Defendant received credit for actual time served of 200 days, and conduct credit of 200 days, for a total of 400 days. The court then ordered defendant to pay a restitution fine of $200 under section 1202.4, subdivision (b), and a matching parole revocation fine of the same amount, stayed under section 1202.45. The trial court also ordered security and booking fees, and a criminal conviction assessment fee. The court, however, found that defendant did not have the ability to repay the county for attorney fees.
On October 20, 2011, defendant filed a timely notice of appeal. She requested a certificate of probable cause, which was granted.

On May 28, 2009, a complaint charged defendant and appellant Richard Beno Ewing with possession of cocaine under Health and Safety Code section 11350, subdivision (a). The complaint also alleged that defendant had previously suffered a prison prior within the meaning of Penal Code[1] section 667.5, subdivision (b).
On June 3, 2009, defendant pled guilty to count 1 and admitted the prison prior. On June 15, 2009, the trial court sentenced defendant to three years’ probation under section 1210.1. On November 3, 2009, defendant admitted violating his section 1210.1 probation, and was placed on general felony probation and admitted into drug court. Defendant failed to appear for drug court review on April 20, 2010, and probation was revoked. On May 9, 2011, defendant was sentenced to four years in prison.
On June 10, 2011, defendant filed a notice of appeal. On appeal, defendant contends that the trial court erred in failing to award him presentence conduct credits under section 4019. For the reasons set forth below, we shall remand this case to the trial court for calculation of section 4019 credits.

Plaintiff and appellant Michael Blais appeals after the trial court granted summary judgment in favor of defendant and respondent Riverside County Regional Medical Center (Center) on plaintiff’s personal injury action on the grounds that plaintiff failed to comply with the Tort Claims Act (Gov.Code,[1] § 810 et seq.).[2]

Defendant and appellant Armando Mendoza appeals after he was convicted of grand theft. The sole contention he raises on appeal is that the imposition of a 10 percent administrative collection fee with respect to his restitution and parole restitution fines was unauthorized. We reject the contention and affirm.