CA Unpub Decisions

Defendant Roynell Terry Hall was convicted by a jury of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), transportation of cocaine (id. § 11352, subd. (a)), and two counts of possession of marijuana for sale (id. § 11359). He was sentenced to six years eight months in prison.
On appeal, Hall contends that his conviction must be reversed because the prosecutor engaged in various acts of misconduct which, individually or cumulatively, violated his due process right to a fair trial. To the extent that his defense counsel failed to object to the prosecutor’s actions, he claims his counsel was ineffective. We disagree that the prosecutor engaged in reversible misconduct or that his counsel was ineffective. Moreover, to the extent that there was any misconduct or ineffective assistance, we find that Hall was not prejudiced. Accordingly, we shall affirm the judgment.

Appellants Ronald Allison and some of the other limited partners in a California limited partnership called Litho I appeal from judgments of dismissal after the superior court sustained without leave to amend demurrers to causes of action against four of seven defendants in appellants’ action. One appeal concerns interference with contract and unjust enrichment/constructive trust causes of action against respondents HCP, Inc. (HCP) and Health Care Property Partners (HCPP).[1] The other appeal concerns breach of fiduciary duty, unjust enrichment/constructive trust, and breach of contract causes of action against respondents Community Hospital of Los Gatos (CHLG) and Tenet Healthcare Corporation (THC). We conclude that the superior court did not err in sustaining the demurrers without leave to amend and entering judgments of dismissal in favor of these four defendants.

Defendant Minh Ngoc Nguyen falsely reported to police and to his insurance company that his leased 2004 Mercedes Benz SL500 had been stolen when he went into a store to buy cigarettes. His insurance company eventually paid $55,573.39 on this reported loss. But the Mercedes Benz was not stolen as reported. Instead, it was in the possession of someone to whom Nguyen had willingly delivered the vehicle as security in a business deal that went bad. Nguyen was arrested and charged with crimes related to his false reports to the police and to his insurance company.

This appeal is a companion case to (Brakke v. Economic Concepts, Inc., (Jan. 15, 2013, G045846) [nonpub. opn.].) Plaintiffs’ first amended complaint alleged defendant Pension Strategies, LLC performed the actuarial calculations used to determine the contributions plaintiffs needed to make to the pension plan designed by defendant Economic Concepts, Inc. Pension Strategies, LLC’s managing agent, Maurice Gordan, made the same purportedly false representations as Economic Concepts, Inc.’s agent; plaintiffs’ pension plan was designed to comply with former section 412(i) of the Internal Revenue Code (former 26 U.S.C. § 412(i), now 26 U.S.C. § 412(e)(3); hereinafter 412(i) plan), was legal, complied with the tax code, and their entire contribution to the plan would be tax deductible. The Internal Revenue Service later determined plaintiffs’ 412(i) plan did not qualify for favorable tax treatment, resulting in plaintiffs incurring back taxes, penalties, and other expenses.
Pension Strategies, LLC filed a separate demurrer to plaintiffs’ first amended complaint and the hearing and ruling it occurred after the demurrer that resulted in the dismissal of the action as to Economic Concepts, Inc. Consequently, a separate judgment of dismissal was entered in favor of Pension Strategies, LLC.
Otherwise the issues raised and arguments asserted by plaintiffs in this appeal are identical to those presented in the companion case. In fact, Pension Strategies, LLC has requested this court take judicial notice of the appellants’ opening brief and respondent’s brief filed in that same case. For the reasons set forth in (Brakke v. Economic Concepts, Inc., supra, G045846), we shall affirm the judgment for Pension Strategies, LLC.

Respondent Pension Strategies, LLC’s request for judicial notice is granted. The judgment is affirmed. Respondent shall recover its costs on appeal.

Plaintiffs James G. Brakke, Matthew F. Schafnitz, Kevin McWilliams, and Charles R. Fosdick are the principals of Dealer Management Group, Inc., a subchapter S corporation. Brakke also served as the trustee of the firm’s defined benefit pension plan. Plaintiffs sued defendants American General Life Insurance Company (American General), Economic Concepts, Inc. (ECI), and three other parties. The first amended complaint alleged the defendants persuaded plaintiffs to establish the pension plan by representing contributions to the plan were tax deductible under the Internal Revenue Code. Subsequently, the Internal Revenue Service (IRS) determined the pension plan failed to qualify for favorable tax treatment, resulting in plaintiffs paying back taxes and penalties.
The amended complaint contained causes of action for fraud, negligent misrepresentation, breach of fiduciary duty, negligence, and a violation of California’s unfair competition law. American General filed a demurrer in which ECI joined. The trial court sustained the demurrer without leave to amend and dismissed the action as to these parties.

J.H. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested dispositional hearing in September 2012, denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11)[1] and setting a section 366.26 hearing as to her one-year-old daughter, Sarah. We deny the petition.

Michael R. (father) appealed from a 2012 order terminating parental rights (Welf. & Inst. Code, § 366.26) to his three-year-old daughter, Madison (child).[1] After reviewing the entire record, father’s court-appointed appellate counsel informed this court she could find no arguable issues to raise on father’s behalf. Counsel requested, and this court granted, leave for father to personally file a letter setting forth a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Father has since submitted a letter in which he complains the juvenile court violated the constitutional prohibition against double jeopardy when, in early 2011, it removed Madison from his custody. As discussed below, we conclude father has not made a good cause showing of arguable error by the juvenile court. We will dismiss father’s appeal.

Appellant, Ralph Lucas Celaya, pled no contest to one count of sexual penetration by force (Pen. Code, § 289, subd. (a))[1] and admitted a serious felony enhancement (§ 667, subd. (a)) and allegations that he had two prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
On December 9, 2011, the court struck the two strike convictions and sentenced Celaya to an aggregate, eight-year term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

Two shotguns were found in the master bedroom closet of the apartment where appellant Maurice D. Sanders resided with his wife. Appellant was convicted after jury trial of two counts of unlawfully possessing a firearm after conviction of a felony (counts 1 & 3; former Pen. Code, § 12021, subd. (a)(1))[1] and two counts of possessing a firearm after conviction of a specified violent offense (counts 2 & 4; former § 12021.1, subd. (a)).[2] All four counts were based on his simultaneous possession of two firearms. The court found four prior strike allegations and three prior prison term allegations to be true. (§§ 667, subds. (a)-(e), 1170.12, 667.5, subd. (d).) Appellant was sentenced on counts 1 and 3 to 25-years-to-life imprisonment; the term imposed on count 3 was ordered to run concurrently with the term imposed on count 1. He was sentenced to terms of 25-years-to-life imprisonment on counts 2 and 4 but imposition of punishment was stayed pursuant to section 654. The court struck all of the prior prison term enhancements.

Petitioner seeks this writ of mandate to vacate the trial court’s order for disclosure of the identity of a confidential informant. Our review of the record reveals no cognizable evidence that would support a finding that nondisclosure of the informant might deprive the defendant of a fair trial. (Evid. Code, § 1042, subd. (d).)[1] In order not to delay trial of this matter further, we issue a peremptory writ of mandate in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179.)

The People appeal the trial court’s order dismissing Stacee Diane Flynn’s (defendant) unpaid restitution fine. Defendant replies that, absent a proper objection below, the People have waived the claim and that in any case, the court had discretion to dismiss the fine. We will affirm.

Through counsel, minors Jonathan D. and Jason W. challenge jurisdictional findings under Welfare and Institutions Code section 300.[1] They contend the court erred when it found they were not at risk of being sexually abused by Jason's father, who had sexually abused their older sister, and denied jurisdiction under section 300, subdivision (j). We reverse.

Defendant Jose Guerrero Mayorquin appeals from his sentence, imposed after a jury convicted him of multiple drug offenses, including possession for sale and transportation of drugs. On appeal, Mayorquin originally contended (1) that the trial court should have stayed execution of his sentences for possessing drugs and using a false compartment, pursuant to Penal Code[1] section 654, because the court imposed sentence for transportation of the same drugs, and (2) that the abstract of judgment does not accurately reflect the credits that the court orally pronounced at sentencing. The People concede that Mayorquin is partially correct as to his contention that some portions of his sentence should be stayed pursuant to section 654, but contend that the abstract of judgment accurately reflects the credits to which Mayorquin is entitled. In response, Mayorquin concedes that the People are correct with respect to the issue of the credits, and he also appears to accept as correct the People's partial concession with respect to section 654.
We agree with the People that the trial court should have stayed Mayorquin's sentences on some of the counts for which he was convicted. We therefore modify the judgment to conform to this conclusion. We otherwise affirm the judgment as modified.

Alexis C. (Minor) was charged by an amended petition filed in the juvenile court with one count of forcible rape in concert (Pen. Code,[1] §§ 261, subd. (a)(2) & 264.1) and one count of forcible rape (§ 261, subd. (a)(2)) with the allegation that each crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)). The juvenile court made a true finding on both counts and found the enhancements to be true. The Minor was committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice for a maximum commitment period of 12 years.
The Minor appeals contending the court erred in permitting the introduction of his interview with police in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We find the juvenile court properly found that the Minor was not in custody for purposes of Miranda when he was interviewed by police. Accordingly, we will find the Minor's statements were properly admitted into evidence and affirm.