CA Unpub Decisions

Article VI, section 13 of the California Constitution provides, in part: “No judgment shall be set aside, or new trial granted, in any cause, … for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause … the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” While the procedures involved in the present case have, in some instances, been unusual, upon review of the entire record we are satisfied that there has been no miscarriage of justice. That is, the net result of dismissal of appellant Connie Flores’s causes of action against Dennis Hagobian and the other respondents could have been accomplished pursuant to regular procedures and, in the proceedings that actually occurred, appellant had a full and fair opportunity to be heard. We also conclude the superior court correctly decided appellant did not have standing to pursue any cause of action in the second amended complaint, and the complaint was properly dismissed. Accordingly, we affirm the superior court’s order of August 24, 2011, denying appellant’s motion to vacate the clerk’s dismissal of this action.

On August 4, 2011,[1] pursuant to a plea agreement, appellant, Jason Allen Celes, pled no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and the court dismissed one “strike” allegation[2] and two prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) allegations. Shortly thereafter, in that same proceeding, appellant waived his right to a presentence report, and the court imposed the agreed-upon prison term of two years.
Prior to appellant entering his plea, the prosecutor, in response to the court’s request for a statement of the factual basis for the plea, stated the following: On July 25, appellant was “found to possess, on his person, a pink baggy of suspected methamphetamine.” Subsequently, testing at a California Department of Justice laboratory revealed that “the substance was found to contain .37 grams net of methamphetamine, a usable quantity.”

On April 29, 2010, an information was filed in Kern County Superior Court, charging defendant Ernest Dixon, Jr., with petty theft with multiple theft-related prior convictions (Pen. Code,[1] § 666; count 1) and second degree burglary (§ 460, subd. (b); count 2). It was further alleged defendant was previously convicted of first degree burglary (§ 460, subd. (a)), which constituted a serious or violent felony for purposes of the “Three Strikes” law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and that he previously served five separate prison terms (§ 667.5, subd. (b)). On June 24, 2010, following a jury trial, defendant was convicted as charged. After a court trial, the strike and four prior prison term allegations were found to be true.[2]
On February 3, 2011, the trial court refused to dismiss the prior strike conviction, and sentenced defendant to a total of 10 years in prison, calculated as six years (the upper term, doubled for the strike) on count 1, plus one year for each of the prior prison term enhancements.[3] Defendant was ordered to pay various fees, fines, and assessments. He was awarded 308 days of actual credit, plus 154 days of conduct credit, for a total of 462 days. He now challenges his sentence in general, and the award of custody credits in particular. We affirm.

Appellant Derolly Forbs was charged with forcible rape (Pen. Code,[1] § 261, subd. (a)(2); count 1), forcible oral copulation (§ 288a, subd. (c)(2); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), and assault with a deadly weapon (§ 245, subd. (a)(1); count 4). Appellant’s first trial ended with the jury acquitting him on the oral copulation count. However, the jury was unable to reach a verdict and the trial court declared a mistrial as to the remaining counts.
On retrial, appellant was convicted of forcible rape (count 1), possession of a firearm by a felon (count 2), and misdemeanor assault (§ 240), the lesser included offense of assault with a deadly weapon (count 3). The jury also found true that appellant had a prior conviction of forcible rape, and the trial court found true enhancement allegations based on the prior conviction. The court sentenced appellant to prison for an aggregate term of 61 years to life.

Defendant and appellant Robert Daniel Castillo was charged by information with theft. (Pen. Code,[1] § 484, subd. (a), count 1.) It was also alleged that he had six prior strike convictions. (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted one prior strike conviction. Defendant moved the trial court to strike his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and the court struck the remaining prior strike convictions. The court sentenced him to six years in state prison and awarded 748 days of presentence custody credits (623 actual days and 125 conduct credits).
Defendant moved the court twice to correct the number of presentence custody credits awarded, pursuant to the October 1, 2011 modification to section 4019. The court denied the motions because defendant’s offense was committed in 2009, and because he had prior strike convictions. Defense counsel subsequently submitted ex parte correspondence to the court, pointing out that it had erred in its calculation of custody credits, even applying the former version of section 4019 that was in effect at the time of the offense. The court changed the amount of custody credits awarded to 933 days (623 actual days and 310 conduct credits). We affirm.

Alex Lange appeals from a judgment dismissing his amended complaint (complaint) for legal malpractice related claims after the trial court sustained general demurrers to it without leave to amend. Lange contends the trial court erred in determining the complaint failed to state a cause of action. We disagree and affirm the judgment.

Appointed counsel for defendant Jorge Rogelio Figueroa has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.[1] (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we shall 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, 124.)

Appointed counsel for defendant Brettford Tyler Sparks has asked this court to review the record to determine whether there exist any arguable issues on appeal after remand for recalculation of the restitution amount. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no error and shall affirm the restitution order.

A jury convicted defendant Lue Seng Thao of attempted first degree murder (count 3; Pen. Code, §§ 664/187)[1], assault with a firearm (count 1; § 245, subd. (a)(2)), and shooting at an occupied vehicle (count 2; § 246). As to count 3, the jury found true the allegation that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). As to count 1, the jury found true the allegation that defendant personally used a firearm in the commission of a felony or attempted felony within the meaning of section 12022.5, subdivision (a). The jury found gang enhancement allegations (§ 186.22, subd. (b)(1)) not true.
The trial court sentenced defendant to a term of life with the possibility of parole plus 20 years.
Defendant contends his confession was involuntary, and that he received ineffective assistance of counsel because his trial counsel failed to raise the issue.

The juvenile dependency court entered orders freeing Maria A. for adoption. Appellant E.A., Maria’s father, appeals. We affirm.

Defendant Jose Escobedo appeals from his conviction by plea to a felony narcotics offense. The plea was entered pursuant to a plea bargain which occurred after defendant’s Penal Code section 1538.5 motion to suppress was denied by the magistrate and his Penal Code section 995 motion to set aside the information was denied by the trial judge. The sole issue on appeal is whether these motions should have been granted on the ground that the evidence against defendant was the product of a Fourth Amendment violation. We conclude that there was no violation of defendant’s constitutional right to be free of unreasonable search and seizure, and that the rulings of the magistrate and the trial judge are amply supported. We shall affirm the judgment of conviction.

Heather Madden appeals from the judgment entered after the trial court sustained without leave to amend the demurrer of respondent Bank of America to her first amended complaint for fraud, "lack of standing" to bring a foreclosure action and several other legal theories. Appellant obtained a loan, secured by a deed of trust on her house, from respondent's predecessor. Respondent initiated a nonjudicial foreclosure on the deed of trust after appellant defaulted on the loan. Appellant alleges, among other claims, that respondent refused to modify the loan unless she was in default. When she defaulted, respondent foreclosed without first offering to modify the loan. Appellant also alleges that respondent lacks standing to foreclose because there is no recorded document assigning the original promissory note and deed of trust to respondent. The trial court sustained respondent's demurrer without leave to amend after it concluded appellant failed to state a claim for relief on any of the theories alleged in her complaint. Appellant contends the trial court erred because she properly alleged causes of action for fraud and "lack of standing" to bring a foreclosure action. We affirm.[1]

Defendant and appellant Robert Trevino appeals his convictions for sale of a controlled substance, cocaine base. The trial court sentenced Trevino to a prison term of 15 years 8 months. Trevino’s sole contention on appeal is that the trial court abused its discretion by denying his request to strike a prior conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Discerning no error, we affirm.

David M. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding he committed the crime of grand theft auto (Pen. Code, § 487, subd. (d)(1)).[1] He contends that the evidence is insufficient to support the juvenile court’s finding. We find the evidence sufficient and affirm.