CA Unpub Decisions

Faced with competing claims of ownership of a Benicia residence, the trial court quieted title in appellant Stan Kahan, whom it found to be a bona fide purchaser. On Kahan’s related unlawful detainer action, it ordered the eviction of appellant Jennifer Zollars and awarded Kahan damages for the rental value of the property during her time of possession. The trial court found in Kahan’s favor on his cross-complaint for indemnity and declaratory relief against Quality Loan Service Corporation (Quality Loan)—the trustee for his foreclosure sale—awarding him attorney fees but no damages.
Zollars appeals from the judgment, contending inter alia that Kahan was not a bona fide purchaser and thus was not entitled to the benefit of a statutory conclusive presumption applied in his favor. (See Civ. Code,[1] § 2924, subd. (c).) Kahan cross-appeals, contending that the trial court erred by failing to award him damages for lost profits and for diminution in property value from Quality Loan. He also asserts that the trial court abused its discretion in setting the amount of his attorney fees award. We affirm the judgment.

Defendant Clifford Edward Adams appeals a judgment entered upon a jury verdict finding him guilty of identity theft (Pen. Code,[1] § 530.5, subd. (a)) (count one); grand theft (§ 487, subd. (a)) (count two); commercial burglary (§ 460, subd. (b)) (count three); and access card fraud (§ 484g) (count four). The trial court found true several prior conviction and prison term allegations. The court imposed a six-year sentence for count one, a concurrent sixteen-month sentence for count three, and a one-year enhancement pursuant to section 667.5, subdivision (b). Sentence on the remaining counts was stayed pursuant to section 654. Defendant contends the trial court committed sentencing error. We shall order the judgment modified to stay the sentence on count three, and affirm in all other respects.

Vincent Turner appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple sex offenses. He contends there was insufficient evidence to support convictions for forcible rape and forcible oral copulation. In particular, he urges that the evidence was insufficient to show that the sex he had with his victims – whom he had kidnapped and was holding for ransom – was against their will. We will affirm the judgment.

In these consolidated appeals by defendants Terrance Varner and Jajuan Phillip Stroman, each claims errors assertedly affecting their joint jury trial convictions for the second degree murder of Clarence Ogden (Pen. Code, § § 187, 189), with gun use and arming allegations, including that each discharged a firearm proximately causing the death (id., § 12022.53, subd. (d) (§ 12022.53(d))).[1] Each was sentenced to an aggregate prison term of 40 years to life, comprised of 15 to life for the murder (§ 190), plus 25 to life for the enhancement.
Finding no prejudicial error, we affirm the judgments.

Z.B. appeals from judgments of the superior court making true findings on the Welfare and Institutions Code[1] section 300, subdivision (b), petitions filed on behalf of her 8-year-old son, Jack D., and 3-year-old daughter, Jamie S., removing the children from her custody and denying her reunification services. She contends that there was insufficient evidence to support the juvenile court's jurisdictional and dispositional findings and its denial of reunification services to her. We affirm the judgments.

This appeal arises from guilty pleas in two cases as part of a plea agreement. Pursuant to the agreement, Ninfo Salgado pleaded guilty in case no. SCD236953 to two counts of attempted murder (Pen. Code,[1] §§ 664/187), admitted the gang enhancements (§ 186.22, subd. (b)(1)), and that a principal discharged a firearm (§ 12022.53, subds. (c) & (e)).
Salgado also pled guilty in case no. SCD239011 to three counts of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)); admitted the great bodily injury enhancement (§ 12022.7, subd. (a)), and the gang enhancement. In addition, Salgado admitted one serious/violent felony prior conviction (§ 667, subds. (b)‑(i)).
The parties stipulated that the total sentence Salgado would receive as a result of his guilty pleas was 38 years in prison. The sentence would be consecutive to a two-year term for a robbery conviction in another case.
Following his guilty pleas, Salgado's motion for self-representation was granted. He thereafter brought a motion to withdraw his guilty plea, which was denied following a contested evidentiary hearing.
The court sentenced Salgado to the stipulated 38-year term, consecutive to the two-year term for robbery for a total determinate term of 40 years in prison.
Salgado filed a notice of appeal and obtained a certificate of probable cause.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 368 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Salgado the opportunity to file his own brief on appeal but he has not responded.

Appellant Jeff Corey Mercer was charged in count 1 with transport of a controlled substance in violation of Health and Safety Code[1] section 11379, subdivision (a), in that it was alleged he unlawfully transported and offered to transport six grams of methamphetamine; in count 2 with possession for sale of a controlled substance in violation of section 11378, in that it was alleged he unlawfully had in his possession six grams of methamphetamine for sale; in count 3 with resisting an officer in violation of Penal Code section 148, subdivision (a)(1); and in count 4 with wrong-way operation of a bicycle in violation of Vehicle Code section 21650.1.
As to counts 1 and 2, it was alleged that prior to the instant offenses Mercer was convicted of crimes in violation of section 11378, within the meaning of section 11370.2, subdivision (c), and was convicted of a crime in violation of section 11379, also within the meaning of section 11370.2, subdivision (c). It was further alleged that Mercer served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
At the preliminary hearing, the court denied Mercer's motion to suppress evidence pursuant to Penal Code section 1538.5. About four months later, the court denied Mercer's motion to reconsider his motion to suppress and found upon independent review of the preliminary hearing transcript that the original motion was properly denied.
In January 2012, Mercer pled guilty to all counts and allegations. The court subsequently sentenced Mercer to five years in state prison.

Mara Gerloni appeals a summary judgment for Maurizio Zanetti, M.D., on her complaint for misappropriation or theft of corporate opportunity, breach of fiduciary duty, breach of contract and breach of the implied covenant of good faith and fair dealing, fraud, and constructive trust. The trial court determined the complaint was a corporate derivative action and she lacked standing to pursue the action because she is not a shareholder.
Gerloni concedes she cannot bring corporate claims, but she contends the complaint also sufficiently alleged individual claims for breach of contract and fraud and she raised triable issues of material fact on those claims. Alternatively, she contends the court abused its discretion by denying her leave to amend the complaint.
We find no merit to these contentions and affirm the judgment. Gerloni's individual claims, even if sufficiently alleged in the complaint, are all based on supposed false promises Dr. Zanetti made to her, which she outlined at length in her declaration. In deposition, however, Gerloni contradicted her declaration and testified she could not recall any specific promise he made. The court properly ignored her declaration and she submitted no other evidence to explain the inconsistencies or raise a triable issue of material fact.

Defendant, Alberd Harutyuntan, challenges the denial of his Penal Code[1] 995 motion to dismiss a section 190.2, subdivision (a)(10) witness killing special circumstance. We issued an alternative writ of prohibition limited solely to the section 190.2, subdivision (a)(10) witness killing special circumstance issue. We grant defendant’s prohibition petition solely as it relates to the section 190.2, subdivision (a)(10) witness killing special circumstance allegation.
This case involves four homicides directed at three members of one family and a prostitute. The chronological order of the killings is as follows. Counts 2 and 3 charge defendant with two murders on December 11, 2008. Count 2 charges defendant with the murder of Khachik Safaryan who was found dead in a family residence’s bedroom. Mr. Safaryan is the husband of Karine Hakobyan and the father of Lusine Safaryan. Count 3 charges defendant with the Lusine Safaryan’s murder. Count 3 contains the following special circumstance allegation concerning Lusine’s murder, “It is further alleged as to Count 3 that the murder of Lusine Safaryanwas committed by defendant . . . and that Lusine Safaryan was a witness to a crime who was intentionally killed for the purpose of preventing her testimony in a criminal proceeding, but that said killing was not committed during the commission and attempted commission of the crime to which she was a witness, within the meaning of Penal Code section 190.2(a)(10).” Lusine was discovered shot to death in the family residence’s living room. It is this special circumstance allegation that is the subject of this opinion.

Dewayne Craig Maris appeals from the judgment entered following his plea of no contest to first degree residential burglary with a person present (Pen. Code, § 459)[1] and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and his admissions that he had previously served two prison terms within the meaning of section 667.5, subdivision (b); that he suffered a “strike” (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) when he was previously convicted of residential burglary (§ 459); and that he had suffered a conviction for a serious felony within the meaning of section 667, subdivision (a)(1) when he was previously convicted of residential burglary (§ 459). The trial court sentenced Maris to 26 years in prison. We affirm.

Ricardo Morales appeals from the judgment entered following a court trial that resulted in his conviction for possession of marijuana while driving, an infraction, as charged in count 5 of the information, and a jury trial that resulted in his convictions for felony driving under the influence of PCP[1] (count 1), felony possession of PCP (count 2), and misdemeanor being under the influence of PCP (count 3), and court findings that he had suffered two prior convictions for driving under the influence of alcohol and/or drugs as alleged in count 1.[2]
Appellant was sentenced to prison for the total term of three years eight months, consisting of the three-year upper term on count 1 and eight months, or one-third the two-year middle term, on count 2. On count 3, the court sentenced him to 180 days in county jail but stayed service of the sentence pursuant to Penal Code section 654.[3] On count 5, the court imposed a two-day county jail sentence.

A.P. (Mother) seeks extraordinary relief from an order of the Del Norte County Superior Court, Juvenile Division, entered October 10, 2012, at the conclusion of a continued six-month status review hearing. At that time the juvenile court terminated Mother’s reunification services and set a hearing under Welfare and Institutions Code[1] section 366.26 to select a permanent plan for her daughter D.R. (born April 2011). Mother contends the juvenile court erred in finding that the Del Norte County Department of Health and Human Services (Department) offered or provided her with reasonable reunification services. Specifically, she claims the Department failed to accommodate her “educational and emotional handicaps.” We conclude substantial evidence supports the challenged finding, and deny on the merits Mother’s petition for extraordinary writ.[2]

On March 25, 2004, defendant Hettie Denise Mathis pleaded no contest to a felony charge of committing an assault by means of force likely to produce great bodily injury. She was sentenced to three years in state prison.
As a condition of parole, she was required to undergo treatment as a Mentally Disordered Offender (MDO) at the state hospital. On March 17, 2009, the Napa County District Attorney filed a petition to extend defendant’s commitment. Defendant consented to a one-year extension. Subsequent petitions and stipulations between 2010 and 2011 resulted in new extensions. On February 8, 2012, the district attorney filed another petition to extend the commitment. Defendant’s demurrer to the petition was denied. A jury found the allegations in the petition true. The court ordered defendant’s MDO commitment at the California Institution for Women extended to June 9, 2013. Defendant filed a timely notice of appeal.
Defendant’s counsel has filed an opening brief that sets forth the facts of the case and raises no arguable issues on appeal. Defendant was informed of her right to file a supplementary brief, but has not done so.
Because of the nature of the proceeding and the appeal therefrom, we proceed according to the rationale from Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544; People v. Dobson (2008) 161 Cal.App.4th 1422, 1438–1439; and People v. Taylor (2008) 160 Cal.App.4th 304, 312. As those cases demonstrate, we are not required to review the record for any arguable issues.[1] The MDO extension here was by statute a civil proceeding (Pen. Code, § 2972, subd. (a)), and not subject to a People v. Wende (1979) 25 Cal.3d 436 review for the reasons explained in those cases.

Appellant Kenneth Tanksley was tried before a jury and convicted of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[1] He contends the judgment must be reversed because (1) the court excluded defense evidence that the victim had threatened appellant’s girlfriend; (2) the court omitted language from CALCRIM No. 3470 that would have advised the jurors they could consider the victim’s threats to a third party when evaluating appellant’s claim of self-defense; and (3) the cumulative effect of these alleged errors was prejudicial. Appellant also argues that the court lacked jurisdiction to issue an order that he stay away from the victim for three years, a point the People concede. We will order the judgment modified to vacate the stay-away order, but otherwise affirm.