CA Unpub Decisions

Following trial, a jury found defendant and appellant Hakeem Loice (defendant) guilty of the attempted murder of one victim and a separate assault on another victim by means likely to produce great bodily injury. On appeal, defendant contends that the trial court abused its discretion when it denied his motion to try separately the two unrelated crimes and that the prosecutor committed various acts of misconduct that denied him the right to a fair trial.
We hold that the trial court did not abuse its discretion when it refused to try separately the two charged crimes and that the prosecutor did not engage in any prejudicial misconduct. We therefore affirm the judgment of conviction.

Appellant Jose Hernandez appeals from the judgment of conviction of attempted willful, deliberate, and premeditated murder under Penal Code sections 187 and 664, subdivision (a). The only issue on appeal is whether there is sufficient evidence to prove deliberation and premeditation. We find sufficient evidence and affirm the judgment.

Defendant and appellant J.W. appeals from a disposition order made after the juvenile court found true allegations of a Welfare and Institutions Code section 602 petition alleging defendant committed forcible rape in concert (Pen. Code, §§ 261, 264.1)[1] and forcible rape (§ 261, subd. (a)(2)). The court placed defendant on supervised home probation, with 10 weekends in juvenile hall, stayed, pending his successful completion of a juvenile sex offender treatment program. Defendant contends he was entitled to a jury trial at the jurisdictional hearing because he potentially faces commitment to the Department of Juvenile Facilities (DJF) and upon discharge or parole therefrom would be subject to registration requirements under section 290.008[2] and residency restrictions under section 3003.5.[3] Defendant acknowledges existing precedent holds there is no constitutional right to jury trial in juvenile proceedings, but contends this authority did not consider lifetime registration requirements and residency restrictions, and the seemingly blanket rule that there is no jury trial right in juvenile proceedings should be revisited under equal protection and due process theories. He further points out the California Supreme Court has granted review on the issue he raises in In re S.W., review granted January 26, 2011, S187897.[4] The Attorney General contends the issue raised is not ripe for review since defendant was not committed to and is not facing parole from DJF, and this court is, in any event, is bound by existing precedent. Even assuming the issue defendant raises is properly before us, we agree existing precedent controls and affirm the disposition order.

The trial court sustained defendants’ demurrer to plaintiff Carl M. Pullen’s legal malpractice complaint without leave to amend, concluding it was barred by the one-year statute of limitations for such actions (Code Civ. Proc., § 340.6).[1] Plaintiff appeals from the judgment of dismissal, contending the trial court improperly decided issues of fact in reaching this result.[2] We conclude that the trial court properly sustained the demurrer but erred in denying plaintiff leave to amend. The judgment is reversed.

Ernesto Arana Cortes pleaded no contest to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5[1]; count 11) on the condition that the other 10 counts, all of which alleged sexual abuse of the same victim, would be dismissed. The court sentenced him to the upper 16-year term. On appeal, he challenges his sentence, arguing that his attorney provided ineffective assistance and that the court committed errors in denying probation and imposing the upper term. We will affirm the judgment.
Cortes has also filed a petition for a writ of habeas corpus, which we have ordered considered together with the appeal. In that petition, he asserts that his trial counsel rendered ineffective assistance because he did not advise Cortes that he would be deported for conviction of violating section 288.5. The Attorney General has filed an informal response to the petition, and Cortes has filed a reply to that response. We conclude that the petition states a prima facie case for relief and issue an order to show cause, returnable in the superior court, why the petition should not be granted.

Plaintiff and appellant Firouz Heyat sued defendants and respondents[1] under California’s Disabled Persons Act (Civ. Code, § 54 et seq.; Act)[2] for injuries he suffered when he fell on the steps in the swimming pool complex at Defendants’ timeshare resort. Heyat alleges the difficulties he experiences in walking render him disabled and Defendants violated the Act by failing to post signs near the pool complex’s steps directing him to a nearby ramp that provided access to and from the pool deck. According to Heyat, Defendants’ failure to post signs denied him equal access to the pool complex and therefore rendered Defendants liable under the Act for his actual damages, treble damages, and attorney fees.
Defendants moved for summary judgment on the ground Heyat lacked standing to pursue his claim under the Act because (1) he testified in deposition he was not disabled when he fell, and (2) the readily-visible ramp provided Heyat equal access to the pool complex and he simply chose not to use it. The trial court granted Defendants’ motion, finding Heyat’s deposition testimony established he was not disabled and therefore lacked standing to pursue his claim under the Act. The court did not decide whether Defendants denied Heyat equal access.

Following a jury trial, Dvante Javar Mackey (appellant) was convicted of home invasion robbery (Pen. Code,[1] §§ 211, 212.5) with findings that he acted in concert with two other persons (§ 213, subd. (a)(1)(A)) and personally used a firearm (§ 12022.53, subd. (b)) in the commission of the offense. He was sentenced to prison for 16 years. On appeal, appellant contends: (1) the prosecutor committed misconduct by asking appellant whether a sheriff’s deputy was lying in his testimony; (2) the trial court erred under Evidence Code section 352 by admitting evidence that appellant’s girlfriend “flashed” him during a jail visit; and (3) the cumulative prejudice of the errors compels reversal of the judgment. We affirm.

It was alleged in an information as follows: Appellant, Fonzie Eddie Montoya, committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);[1] count 1), short-barreled shotgun or rifle activity (§ 12020, subd. (a)(1); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), and misdemeanor possession of ammunition (§ 12316, subd. (b)(1); count 4); he personally used a firearm in committing the count 1 offense (§ 12022.53, subd. (b)); he had suffered a prior felony conviction that qualified as both a serious felony within the meaning of section 667, subdivision (a) and as a “strike”;[2] and he had served three separate prison terms for prior felony convictions, within the meaning of section 667.5, subdivision (b) (section 667.5(b)).
Jury trial began, but in the midst of trial, after the court gave an indicated sentence of 21 years, appellant pled no contest to the substantive offense charges and admitted the strike and enhancement allegations. Thereafter, appellant moved to withdraw his plea, and the court denied the motion.
The court imposed a prison term of 21 years calculated as follows: on count 1, six years, consisting of the three-year midterm, doubled pursuant to the three strikes law; 10 years on the accompanying firearm use enhancement; and five years on the prior serious felony enhancement (§ 667, subd. (a)). The court imposed concurrent four-year terms on each of counts 2 and 3, and specifically stated it was imposing no time on count 4. The court made no mention of the three section 667.5(b) prior prison term enhancements.
Appellant requested, and the court issued, a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant himself has filed a brief in which he argues, as best we can determine, that his plea was the product of ineffective assistance of counsel and judicial misconduct. We conclude the court erred in failing to impose sentence on the section 667.5(b) enhancements, remand for resentencing, and otherwise affirm.

Appellant Robert Allen Savage was charged with two counts of making criminal threats (Pen. Code, § 422, counts 1 and 2)[1] and one count of misdemeanor exhibiting a deadly weapon (§ 471, subd. (a)(1), count 3). The information also alleged that Savage used a deadly and dangerous weapon in the commission of counts 1 and 2 (§12022, subd. (b)(1)), and that he had a prior strike conviction (§§ 667, subds. (b)-(i)), and had served three prior prison terms (§ 667.5, subd. (b)). After many continuances, Savage accepted the prosecution’s offer and pled no contest to counts 1 and 2, and admitted the prior strike, a weapons enhancement, and two of the prior prison term enhancements for a stipulated prison term of six years. The remaining allegations were dismissed. The court subsequently imposed the six-year prison term. Despite not having moved to withdraw his plea in the trial court, Savage appeals contending the judgment should be reversed because (1) his plea was coerced and (2) the record fails to show he affirmatively waived his constitutional rights. In addition, Savage contends he is entitled to additional custody credits. We find no merit to the contentions and affirm.

Defendant, D.M., admitted to several wardship violations and was placed at Twin Pines Ranch. On appeal, he contends the juvenile court failed to calculate his predisposition custody credits. The People agree. For the reasons set forth below, we remand this case for the juvenile court to calculate D.M.’s predisposition custody credits. In all other respects, disposition of the juvenile court is affirmed.

On September 14, 2011, an information alleged that defendant and appellant Larry Louis Judge (1) possessed a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) (count 1); and (2) transported a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) (count 2). The information also alleged that defendant had been convicted of a violent or serious felony within the meaning of Penal Code section 667, subdivisions (b) through (i), and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On September 8, 2011, defendant waived his right to counsel and chose to represent himself. On September 21, 2011, defendant affirmed his prior waiver of his right to counsel. On December 2, 2011, the trial court denied defendant’s motion for a change of venue. It also denied defendant’s motion for recusal of the trial judge under Code of Civil Procedure section 170.6.

On November 29, 2011, an information charged defendant and appellant Bernard Leandra Woulldar with fleeing from police in a motor vehicle with willful and wanton disregard for safety of persons and property under Vehicle Code section 2800.2 (count 1); and violating a protective order under Penal Code[1] section 273.6, subdivision (a) (count 2). The information also alleged that defendant had two prior convictions resulting in prison terms under section 667.5, subdivision (b), and one prior serious or violent felony conviction under sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
On January 23, 2012, before jury trial began, the trial court granted the prosecution’s motion to dismiss count 2. Trial continued through January 26, 2012. The following day, January 27, the jury found defendant guilty of count 1.
Trial on defendant’s priors was bifurcated; defendant waived his right to a jury trial on the priors. On January 30, 2012, a trial on the priors was held. The court found the priors true as alleged.
At the sentencing hearing on February 24, 2012, the trial court denied defendant’s motion to dismiss his strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then sentenced defendant to the upper term on count 1, doubled under the three strikes law, for six years. Defendant was sentenced to an additional two years for the two prison priors, for total of eight years.
On February 27, 2012, defendant filed his notice of appeal.

Defendant William Hudson seeks reversal of the trial court’s orders that he pay an attorney fee of $150 plus $505 for the cost of a presentence investigative report. He argues that the trial court erred by failing to make a finding regarding his ability to pay the assessments as required by Penal Code section 987.8.[1],[2] We will remand the matter to the trial court to conduct a hearing on whether defendant has the financial ability to pay the challenged fees.

A jury found defendant guilty of (1) willfully causing or permitting a child to suffer under conditions likely to produce great bodily harm or death, inflicting unjustifiable pain or mental suffering upon a child, or willfully causing or permitting a child to be placed in a situation where her person or health is endangered (Pen. Code, § 273a, subd. (a));[1] and (2) willfully inflicting upon a child cruel or inhuman corporal punishment or an injury resulting in a traumatic condition (§ 273d, subd. (a)). As to both counts, the jury found true the allegations defendant inflicted great bodily injury on a child under the age of five years old. (§§ 12022.7, subd. (d), 1192.7, subd. (c)(8).) The trial court suspended a prison sentence of four years, and granted defendant probation with the condition she be committed to the Riverside County Sheriff’s Department for 360 days. The trial court struck the punishments for the great bodily injury enhancements. (§ 1385.) Defendant contends the trial court erred by incorrectly instructing the jury on the great bodily injury enhancements. (CALCRIM No. 3162.) We affirm the judgment.