CA Unpub Decisions

A modification decision.

Plaintiff and appellant Leslie Laraine Villelli appeals from a judgment entered after the trial court sustained demurrers by defendants and respondents R.A.V., Inc. (RAV), Villelli Enterprises, Inc. (Villelli Enterprises), Richard A. Villelli (Dick), Lee M. Deierling, Judith A. Deierling, and Joanne Rocks (collectively, Defendants). As a beneficiary of her husband Thomas R. Villelli’s revocable trust (Trust), Leslie sued Defendants claiming Dick and Rocks coerced and fraudulently induced her to sign documents transferring Villelli Enterprises and RAV shares from the Trust to Dick and the Deierlings during a period when she served as one of the Trust’s cotrustees.[1]
The trial court found Leslie lacked standing to bring this action as a Trust beneficiary because the current trustee is the only real party in interest with standing to sue for damage to property the Trust holds. Leslie primarily contends she has standing to sue as a Trust beneficiary under the third-party participant doctrine, which allows trust beneficiaries to sue in their own name to recover damages or trust property from third parties who participate in or knowingly benefit from a trustee’s breach of trust. Leslie argues she breached her duties as a cotrustee when she transferred the Villelli Enterprises and RAV shares without adequate consideration, and Dick and Rocks participated in that breach by coercing and fraudulently inducing her to make the transfers.

A jury convicted 55-year-old Roberto Bedolla Ambriz of sodomizing a child age 10 or younger, kidnapping to molest the child, a forcible lewd act on another child under 14 years old, and seven counts of lewd acts on children younger than age 14. The jury also found penalty enhancement allegations to be true on several of these counts, including kidnapping to commit the forcible lewd act, the offenses were committed against more than one victim, and substantial sexual conduct with victims under the age of 14. Ambriz argues the trial court lacked statutory authority to impose an order barring him from contact with his two victims. He also argues the 55-year prison sentence the trial court imposed constitutes cruel and/or unusual punishment under the federal and state Constitutions because it exceeds his remaining life expectancy. We find no merit in either claim, and therefore affirm the judgment.

Defendant Phong Thanh Cao appeals from a postconviction order denying his statutory and nonstatutory motions to vacate his guilty plea to two counts of assault with a firearm and one count of obliterating the firearm’s identification, and his admission of enhancements for use of a firearm. This plea was entered on November 30, 2001, more than 10 years ago. Defendant moved to vacate his plea on August 22, 2011.
The basis of Cao’s motions was ineffective assistance of counsel. Cao, who is not a United States citizen, asserts his counsel mistakenly advised him that his guilty plea would not result in his being deported. Cao is, however, the subject of a deportation order, although one presently in abeyance. Had he known about the immigration implications of his plea, he asserts, he would not have accepted the plea deal and would have gone to trial.
The court denied both motions. It denied the statutory motion, under Penal Code section 1016.5,[1] because Cao received the required advice regarding the immigration consequences of pleading guilty and acknowledged his understanding of these consequences in open court and in writing. It denied the nonstatutory motion because it lacked jurisdiction to consider it.
We affirm the trial court’s rulings in both respects.

A jury convicted Luis Salazar Juarez of second degree robbery and being a convicted felon in possession of a loaded firearm. The jury found true an allegation Juarez personally used a firearm during the commission of the robbery. The court found true allegations Juarez had been previously convicted of a violent or serious felony (Pen. Code, § 667, subd. (a)(1)),[1] which also qualified as a “strike” prior under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)), and sentenced Juarez to a total prison term of 21 years.
Juarez claims the trial court abused its discretion by denying his Marsden[2] motion, failing to dismiss his strike prior pursuant to section 1385, subdivision (a), and sentencing him to a 21-year prison term without properly considering his mental illness. In the alternative, Juarez claims the cumulative impact of these errors requires this court to reverse the judgment. We find none of these claims meritorious and affirm.

Byron Christopher Chinchilla and Jorge David Sotelo appeal from judgments after a jury convicted them of four counts of attempted murder, shooting at an occupied motor vehicle, four counts of assault with a semiautomatic firearm, second degree robbery, street terrorism, being an active participant in a criminal street gang and having a concealed firearm in the vehicle, and receiving stolen property, and found true street terrorism and firearm enhancements. Chinchilla argues: (1) insufficient evidence supports his conviction for receiving stolen property; (2) the natural and probable consequence jury instruction was erroneous; and (3) there were sentencing errors. Sotelo contends: (1) insufficient evidence supports his convictions for premeditated and deliberate attempted murder; (2) the trial court erred in failing to instruct the jury on imperfect self-defense and his defense counsel was ineffective for failing to request the instruction; and (3) there were sentencing errors. They join in each other’s argument to the extent they accrue to their benefit. As we explain below, we agree with Sotelo’s jury instruction claim but conclude he was not prejudiced. We also agree with their sentencing claims. We affirm in part, reverse in part, and remand for resentencing.

Abraham R. appeals from a disposition order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602. Abraham argues that the evidence is insufficient to establish his identity as one of the perpetrators of the offenses charged, or, alternatively, that the evidence was insufficient to prove that the conduct in which he engaged was gang related, such that the court could have found him guilty of committing street terrorism or have found true the gang enhancement allegation. Abraham also argues that the probation condition that the court imposed pertaining to his possession of weapons and ammunition failed to include an express knowledge requirement, and must therefore be stricken or modified.

A jury found Patrick Burke guilty of two counts of attempted murder, shooting at an occupied building and assault with a semiautomatic firearm. The jury also found true gang and other enhancements attached to the counts. Burke appeals, contending his two attempted murder convictions must be reversed because (1) there was insufficient evidence that he had the specific intent to kill, and (2) the trial court gave erroneous instructions on the kill zone theory of attempted murder. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2008, the Static Lounge, a bar in downtown San Diego, put on a music event to unite two rival gangs, the Bloods and the Crips. That night, officers patrolling the area made contact with Burke, a documented West Coast Crip member, and conducted a field interview. Burke was with Johnny Hill, a Neighborhood Crip member. Hill told the officers that they had just come from the bar. John Nygren, a security guard working outside the Static Lounge, had seen Burke walking up and down the street near the bar multiple times that night.

K.B. (appellant), born in August 1998, appeals from the juvenile court’s jurisdictional and dispositional orders sustaining a finding of attempted grand theft from a person (Pen. Code, §§ 664/487, subd. (c)), declaring him to be a ward of the court, and placing him on probation. He contends the orders must be reversed because there was insufficient evidence that he appreciated the wrongfulness of his conduct. We reject the contention and affirm the orders.

Marcia Flagg and Broadmoor Community Church (BCC) appeal from an order and judgment in this dissolution action (a) sanctioning Flagg for failing to list on her schedule of assets a promise by BCC to retroactively pay her $105,000 for past work and (b) requiring BCC to pay Nader Malek, Flagg’s former husband, $105,000. As we explain, the promise to pay $105,000 was never a viable community asset, contingent or otherwise. Rather, the promise was an unenforceable “expectancy” that Flagg was not required to include in her schedule of assets. Therefore, the sanction against her cannot stand, nor can the judgment against BCC requiring it to pay the monies to Malek. We note that had Flagg actually received the monies, she would have had an asset in-hand she was required to disclose and to which Malek would have had a partial claim. However, she never received any of the monies and consequently never had anything more than an expectancy, which neither she nor Malek ever had any right to enforce. We therefore reverse the sanction order against Flagg for failing to disclose the supposed asset and the judgment against BCC requiring it to disgorge it.

A MODIFICATION DECISION.

Appellant Kimberly M. (the mother) appeals from an interim visitation order entered after the court had held the Welfare and Institutions Code section 366.26 hearing but before it had issued its decision. Her sole claim on appeal is that the juvenile court abused its discretion because the court erroneously believed that it was increasing rather than decreasing the frequency of visitation, and reduced visitation was not in the children’s best interest. We reverse the juvenile court’s order.

Defendant Kenneth Charles Chapman appeals from a judgment entered following the issuance of the remittitur in his prior appeal in case No. H035443.[1] The appeal is based solely on grounds of sentencing error. We find no error and affirm.
Following a jury trial, defendant was found guilty of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) - counts one and two)[2] and two counts of assault with a deadly weapon (§ 245, subd. (a) - counts three and four). The jury also found that defendant committed both robberies with a deadly weapon (§ 12022, subd. (b)(1)) and that defendant personally inflicted great bodily injury on the victims of both robberies and assaults (§§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that defendant had five prior strike convictions (§ 667, subd. (b)) and three prior serious felony convictions (§ 667, subd. (a)), and had served four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of 94 years to life.

Appellant Kinde Setegne is a taxicab driver, who had a permit to pick up passengers at the Norman Y. Mineta San Jose International Airport (Airport). After respondent City of San Jose (City) revoked his permit, Setegne filed a petition for writ of administrative mandamus directing the City to set aside its decision and grant his request for an administrative hearing. The trial court denied the petition and entered judgment in favor of the City. We conclude that the City failed to show that Setegne was properly served with the notice of the appeal hearing and reverse the judgment.