CA Unpub Decisions

On October 21, 2008, Reynaldo Saldana Rico beat his wife.[1] A jury found him guilty of willful infliction of corporal injury and found a great-bodily-injury allegation true. He admitted an attempted second degree robbery prior, both as a serious-felony prior and as a strike prior, and admitted a domestic-violence prior. The court imposed and stayed a five-year serious-felony-prior term on the attempted second degree robbery prior and imposed an aggregate sentence of 12 years.
On his first appeal, Rico challenged the sentence, arguing that the court had no authority to stay the five-year serious-felony-prior term on the attempted second degree robbery prior. The Attorney General agreed. We concurred, affirmed the judgment, vacated the sentence, and remanded for resentencing. (People v. Rico (Mar. 21, 2011, F059362) [nonpub. opn.].)[2]
After remand, the court declined to strike Rico’s strike prior and imposed an aggregate sentence of 12 years. On his second appeal, he argues that by not striking his strike prior the court committed an abuse of discretion that constitutes constitutionally disproportionate punishment under both the federal and state constitutions. We affirm.

Bryan Lustre (Bryan), a beneficiary under his parents’ trust, petitioned the trial court to have his aunt, Rosemary Lustre (Rosemary), removed as trustee. In support of the petition, Bryan claimed that Rosemary failed to pay sums needed for his comfortable financial support, refused to correct an asset allocation error, misused trust income and failed to furnish timely accountings. Bryan also asserted there was antagonism between himself and Rosemary that could only be resolved by appointing a new trustee. The trial court considered the evidence presented at trial and denied the petition, concluding that Bryan had failed to show facts warranting the removal of Rosemary as trustee under all of the circumstances. Bryan now appeals from that judgment. Because the trial court’s denial of the petition was within its broad discretion, we will affirm.

C.M. (Mother) appeals after the termination of her parental rights to C.H. at a Welfare and Institutions Code section 366.26[1] hearing. Mother claims on appeal as follows: (1) the juvenile court abused its discretion by denying Mother’s section 388 petition because she established a material change of circumstances and proved the modification would be in C.H.’s best interests; and (2) the juvenile court erred by failing to apply the parental benefit exception of section 366.26, subdivision (c)(1)(B)(i).

Defendant and appellant Ana Soto Cuatlayotl appeals after she was convicted of one count of child abuse likely to cause great bodily injury (Pen. Code, § 273a, subd. (a)), with an accompanying allegation that she personally inflicted great bodily injury on a child under age five (Pen. Code, §§ 12022.7, subd. (d), 1192.7, subd. (c)(8)). Defendant’s primary contention is that the trial court should have suppressed any statements she made to police before Miranda[1] warnings had been given. The People respond that the statements defendant sought to have suppressed were not made during a custodial interrogation. We agree, and therefore we affirm the judgment.

Canuto Soto was charged with possessing a controlled substance for the purpose of sale (Health &. Saf. Code, § 11378) (count 1) and transportation of a controlled substance for the purpose of sale (Health & Saf. Code, § 11379, subd. (a)) (count 2). Count 1 also alleged Soto had a prior narcotics conviction. Soto pleaded no contest to count 2, and count 1 was dismissed. The trial court imposed the upper term sentence of four years in county jail. (Pen. Code, § 1170, subd. (h).)
Soto appeals, and his appellate counsel has asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.[1] After reviewing the entire record, we identify no reasonably arguable appellate issues and affirm the judgment.

A jury convicted Amier Rocky Issa of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4))[1] and found true he personally inflicted great bodily injury (§ 12022.7, subd. (e)) using a deadly weapon (§ 1192.7, subd. (c)(23)). On appeal, Issa asserts the court erred by (1) ordering him to pay probation costs without a hearing to determine his ability to pay or sufficient evidence of his ability to pay, and (2) denying his motion for a new trial using a preponderance of the evidence standard to determine whether he was competent during trial.

Plaintiff Michael R. Coulter (Michael),[1] who appeals in propria persona, filed three separate actions against several defendants (collectively, defendants), which were consolidated (one of which was later ordered deconsolidated) alleging causes of action for making terrorist threats, conversion, slander/defamation, quiet title, injunctive relief/imposition of a constructive trust, declaratory relief, and, negligence.
On appeal, in a four-page brief that has only two citations to the record below, Michael asserts the court erred by (1) denying his motion for a continuance he made on the first day of trial, and (2) sustaining the defendants' demurrer without leave to amend as to his third action. We affirm.

A jury found Patricia Higgins guilty of battery with serious bodily injury (Pen. Code, § 243, subd. (d); all statutory references are to this code) and misdemeanor elder abuse (§ 368, subd. (c)). The trial court sentenced Higgins to prison for the upper term of four years.
Higgins contends that her constitutional right to due process was denied because the trial court considered her criminal history during sentencing after making a statement that led her believe it would not do so, and therefore dissuaded her from correcting a purported error in the probation officer's report. We conclude that Higgins's argument is without merit, and accordingly we affirm the judgment

In this probate matter, plaintiffs and appellants Tyler H. Slavin and Parker M. Slavin, as co-trustees of the HMR Irrevocable Trust dated 1/21/98 (the Trust), and their father Randall Slavin (Randall; together, Appellants) appeal an order enforcing a written, court-approved settlement agreement that they entered into with the moving party, their mother, respondent Shereen Slavin (Respondent), concerning disputes over certain provisions of the Trust and also disputes arising in the dissolution action between the parents. (Prob. Code,[1] § 17200; Code Civ. Proc., § 664.6.) Previously, the probate court granted a different motion by Appellants to approve the parties' September 2010 settlement agreement (the agreement), which included procedures for modifying the loan on or selling the family residence (Luckett property; the subject property). This agreement recognizes the Trust has an ownership interest in the subject property, even though title to it and the loan were still held solely by Respondent pursuant to an earlier refinancing arrangement completed during the marriage, in her name. The agreement provided for a six-month period for Appellants to modify the existing loan, but they were unable to do so. The subject motion by Respondent claimed Appellants breached that requirement in the agreement, and other requirements, such that its additional terms should now be enforced, allowing her to sell the property.
On appeal, Appellants contend the probate court erred in issuing this "enforcement order," by finding they were in breach of the agreement, and the court should have allowed them a "reasonable" extension of time, as provided by paragraph 6 of the agreement, for procuring the loan modification. Appellants argue they were excused from performance of their obligations, because Respondent's conduct made it impossible or impracticable for them to negotiate with the lender for modification of the loan. (See Christin v. Superior Court (1937) 9 Cal.2d 526, 533 [definition of impossibility].) Appellants further argue the probate court should not have allowed Respondent to act as a real estate agent listing the property for sale on behalf of herself as the titleholder.

Aragon Faletogo appeals from a judgment convicting him of assault with a deadly weapon by a life prisoner with malice aforethought and possession of a weapon by a prisoner. He argues the trial court erred by (1) allowing the prosecution to introduce evidence of an admission he made at a prison disciplinary hearing; (2) failing to make an adequate inquiry concerning possible juror bias; and (3) failing to consider his inability to pay a $10,000 restitution fine. He also asserts the cumulative effect of the errors requires reversal. We reject these contentions of reversible error and affirm the judgment.

A jury convicted Thomas Deshawn Reed of murdering Evelyn Scott and found true the robbery and burglary special circumstances. The jury also convicted Reed of first degree residential robbery, first degree burglary, arson of an inhabited structure, unlawful driving or taking of a vehicle, and two counts of receiving stolen property. The trial court sentenced him to a total term of life in prison without the possibility of parole plus 12 years. Reed appeals, contending (1) he received ineffective assistance when defense counsel failed to request a mistrial, (2) the trial court improperly admitted evidence of prior uncharged crimes, (3) the trial court improperly instructed the jury regarding malice, and (4) the court failed to hold a posttrial hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We reject Reed's first three contentions, but find the trial court erred in not holding a Marsden hearing. Accordingly, we reverse the judgment with directions.

A jury found Shelley Mathew Malil guilty of attempted deliberate and premeditated murder of Kendra Beebe (count 1: Pen. Code,[1] §§ 187, subd. (a), 189, 664); and assault with a deadly weapon on David Maldonado (count 2: § 245, subd. (a)(1)). As to count 1, the jury found true allegations that Malil personally used a deadly weapon (a knife) within the meaning of section 12022, subdivision (b)(1), and personally inflicted great bodily injury on Beebe under circumstances involving domestic violence the meaning of section 12022.7, subdivision (e). As to count 2, the jury found true allegations that Malil personally used a deadly weapon (a knife) within the meaning of section 1192.7, subdivision (c)(23). The jury found Malil not guilty of residential burglary (§§ 459, 460) as charged in count 3. The court sentenced Malil to a determinate prison term of five years plus an indeterminate term of life with the possibility of parole.
Malil asserts three principal claims on appeal. First, he claims the court violated his constitutional rights to a jury trial and due process when it dismissed juror No. 12 during deliberations over a defense objection. Second, he claims (as discussed more fully, post) that he was deprived of his constitutional rights to due process and a fair trial as a result of three alleged errors related to the issue of unanimity. Last, Malil claims the evidence is insufficient to support his count 2 conviction of assaulting Maldonado with a deadly weapon because there is no evidence he intended to harm Maldonado, who (he claims) was only injured because he grabbed the knife from Malil.
For reasons we shall explain, we reject these claims. Accordingly, we affirm the judgment.

Defendant Pamela Rose Fogg pled no contest to one count of possession for sale of heroin and three counts of sale of heroin. ( "Health & Saf. Code, §§ 11351, 11352, subd. (a)" Health & Saf. Code, §§ 11351, 11352, subd. (a).) She further admitted, as to one count of sale of heroin, that she was on bail at the time of the offense ( "Pen. Code, § 12022.1" Pen. Code, § 12022.1, subd. (b)), and admitted she had served a prior prison term (id. § 667.5, subd. (b)). The trial court sentenced her to state prison for 11 years and 8 months.
On appeal, defendant contends she is eligible for a county jail sentence. Due to a recent statutory amendment, we agree.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kimberly A. Roura, Deputy County Counsel, for Plaintiff and Respondent.
Appellants Alejandro M. (Father) and Christina L. (Mother) are the parents of Christopher M. (born March 2011). They appeal from the court’s order terminating their parental rights. Father also appeals from the denial of his Welfare and Institutions Code section 388 petition. We affirm.