CA Unpub Decisions

Marianne Douwes appeals from the judgment entered after the trial court granted summary judgment in favor of Sid Solomon, D.D.S., on the ground Douwes’s action for dental malpractice was untimely under the one-year discovery provision of Code of Civil Procedure section 340.5 (section 340.5). We affirm.

The Woman’s Club of Hollywood, California, Jennifer Morgan, and Nina Van Tassell (collectively defendants) appeal from an order appointing a receiver. We affirm.

Froilan Villarreal, Jr., appeals the judgment (order granting probation) entered following his conviction by jury of going to an arranged meeting with a minor for lewd purposes, a felony. (Pen. Code, § 288.4, subd. (b).)[1] As a result of Villarreal’s conviction, he is required to register as a sex offender. (§ 290, subd. (c).)
At issue here is The Sexual Predator Punishment and Control Act (Jessica’s Law) which was enacted by the voters on November 7, 2006, as Proposition 83. Jessica’s Law amended section 3003.5, a statute that restricts where parolees required to register as sex offenders are allowed to reside, by adding subdivision (b) which provides: “Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.” (§ 3003.5, subd. (b), italics added.)
On appeal, Villarreal contends the residency restrictions of Jessica’s Law constitute cruel and unusual punishment in every case. We reject Villarreal’s facial challenge to Jessica’s Law and affirm the judgment without prejudice to Villarreal’s right to seek relief in the trial court by way of petition for writ of habeas corpus alleging the law is unconstitutional as applied in his case.

Seth Hernandez appeals the judgment following his convictions for attempted murder (Pen. Code, §§ 664/187, subd. (a)),[1] two counts of assault with the personal use of a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor exhibiting of a deadly weapon. The jury found allegations to be true that Hernandez inflicted great bodily injury in the attempted murder and one of the assaults (§ 12022.7, subd. (a)), and personally used a deadly weapon (knife) in the attempted murder (§ 12022, subd. (b)(1)). The jury found not to be true an allegation that the attempted murder was willful, deliberate and premeditated.
Hernandez contends the trial court abused its discretion and violated his due process rights by admitting evidence of a subsequent uncharged offense under Evidence Code section 1101, subdivision (b). We conclude there was no prejudicial error and affirm.

Appellant Somnang Kim is a member of a Cambodian gang known as CWA also, at times, referred to as C-Dub. He was charged with three counts of murder, 13 counts of attempted premeditated murder and three counts of assault with a deadly weapon. Special circumstances were alleged on the grounds of multiple counts of murder and killings for a gang purpose. Gang use and gang enhancements were alleged as to each count. Appellant pled guilty as charged on the agreement by the People to withdraw the request for the death penalty. He admitted all of the enhancements including the alleged special circumstance. Appellant was sentenced to life without the possibility of parole for his three murder convictions together with the remaining counts and enhancements appellant received a consecutive sentence of 400 years to life consecutive to 29 years 8 months. On appeal we reversed the judgment on the grounds that the sentence imposed violated the terms of appellant’s plea bargaining. We remanded with directions for resentencing or withdrawal of the plea. The rehearing was held and the People moved to dismiss the Penal Code section 12022.53, subdivisions (b), (c) and (d) charges and the court granted the motion. Thereafter, the court imposed specific sentences as to each count and enhancement that the appellant admitted. The total term was life without possibility of parole concurrent to 24 years to life. Appellant files this appeal on the single ground that imposition of gun use enhancement (Pen. Code, § 12022.5) and gang enhancement involving use of a gun (Pen. Code, § 186.22, subd. (b)(1)(C)) was improper and the case should be remanded for further sentencing. The Attorney General in filing its respondent’s brief agreed that the imposition of gun use enhancement (Pen. Code, § 12022.5) and gang enhancement involving use of a gun (Pen. Code, § 186.22, subd. (b)(1)(C)) was improper. We agree and accept the concession.

Defendant Avaristo Nava Checchin appeals a judgment by the trial court denying his request for additional conduct credit under the October 2011 version of Penal Code section 4019. [1] Defendant raises the sole argument that equal protection principles require the retroactive application of the statute to crimes committed before the statute’s operative date of October 1, 2011. (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53)

A modification decision.

This is one of a number of cases filed in California state and federal courts raising the issue whether borrowers who entered into option adjustable rate mortgages (Option ARM’s) can state viable causes of action for (1) fraud (based on fraudulent omissions) or (2) violation of the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.)[1] on the theory that their loan documents failed to disclose the essential terms of their loans, namely that their loans were guaranteed to cause negative amortization if the borrowers made payments according to the only payment schedule the lenders gave them before the loans closed. Negative amortization is an increase in a loan’s principal balance that occurs when the monthly payments are insufficient to pay accruing interest. (See Black’s Law Dict. (8th ed. 2004) p. 93, col.2.)

After a jury found defendant Darrell Edward Adams guilty of premeditated attempted murder and of illegally possessing a firearm and ammunition, and the jury and the trial court found enhancement allegations true, defendant successfully appealed from his judgment of conviction on the ground the victim’s preliminary hearing testimony was erroneously admitted into evidence. Following retrial, the jury found defendant guilty of the charged offenses and found defendant acted willfully, deliberately and with premeditation and personally used a firearm. The trial court found the alleged prior conviction and prison term enhancement allegations true.
Defendant contends that during the retrial, the court erred by failing to instruct the jury, sua sponte, on the defense theory of third party culpability. He argues, in the alternative, that his trial counsel was ineffective for failing to request such an instruction. Defendant also asserts the trial court erred by (1) failing to stay execution of punishment for the illegal possession of a firearm offense, under Penal Code section 654;[1] (2) penalizing defendant for exercising his right to appeal the original judgment by imposing a greater sentence than what had been imposed following his first trial; and (3) issuing a minute order and an abstract of judgment that did not reflect the court’s oral pronouncement of sentence as to the term imposed for the prior prison term enhancement found true by the court.

Mason Henry Hood was convicted by a jury of count 1, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1));[1] count 2, possession of ammunition by a felon (§ 12316, subd. (b)(1)); count 3, driving under the influence (Veh. Code, § 23152, subd. (a)); and count 4, driving a vehicle with a blood alcohol level of 0.08 percent or above (Veh. Code, § 23152, subd. (b)). In a bifurcated proceeding, the trial court found true the allegation that Hood had been convicted of a prior strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a robbery (§ 211), in May of 2008. After denying Hood’s Romero[2] motion, the trial court sentenced Hood in count 1, to the mid-term of two years, doubled pursuant to the Three Strikes law; in count 2, to a concurrent mid-term of two years, doubled pursuant to the Three Strikes law; in count 3 to 30 days concurrent; and in count 4 to 30 days, stayed pursuant to section 654, a total of four years. Hood received 72 days for time served and statutory credit. The court imposed various fines and fees.
On appeal, we reject Hood’s contention that the trial court erred in denying his request for a pinpoint instruction and that it abused its discretion when it denied his Romero motion to strike his prior strike. Pursuant to Hood’s request, we reviewed the sealed portion of the record pertaining to discovery of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and determine that the trial court did not withhold discoverable information from the defense.

Mother appeals from an order terminating parental rights to her five-year-old son, A.E.M. (born in 2006) and two-year-old daughter, A.E.L. (born in 2010). Mother contends the juvenile court erred in rejecting the beneficial relationship exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).[1] Mother also asserted in her appellate opening brief that the juvenile court abused its discretion in denying her section 388 petition. Mother has withdrawn this contention pursuant to a motion to strike, which this court granted. We reject mother’s remaining contention the beneficial relationship exception to adoption applies, and affirm the judgment.

On March 3, 2011, a felony complaint[1] charged defendant and appellant Denise Marie Herrera with (1) conspiracy to commit possession of methamphetamine for sale under Penal Code section 182 and Health and Safety Code section 11378 (count 1); (2) possession for sale of a controlled substance under Health and Safety Code section 11378 (count 2); (3) kidnapping for ransom under Penal Code section 209, subdivision (a) (count 7); (4) home invasion robbery under Penal Code sections 211 and 213, subdivision (a)(1)(A) (count 8); (5) extortion under Penal Code section 520 (count 9); (6) false imprisonment by violence under Penal Code section 236 (counts 10 & 14); (7) assault with a firearm under Penal Code section 245, subdivision (a)(2) (count 11); (8) possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1) (counts 12, 18 & 23); (9) kidnapping for ransom under Penal Code section 209, subdivision (a) (count 13); and (10) street terrorism under Penal Code[2] section 186.22, subdivision (a) (count 29).

Pursuant to a plea agreement, defendant and appellant Carlos Rolando pled no contest to receiving stolen property. (Pen. Code, § 496, subd. (a).) In exchange, the trial court sentenced him to three years in state prison, but suspended the sentence and placed him on probation for three years under certain terms, including that he serve 365 days in county jail and participate in the INROADS (Inmate Rehabilitation Through Occupational and Academic Development) program. In addition, the court dismissed three other cases against him. After holding a restitution hearing, the court ordered defendant to be jointly and severally liable with his codefendant to pay victim restitution to Daisy G., the victim who testified at the restitution hearing, in the amount of $7,301.92.
On appeal, defendant contends that the court abused its discretion in ordering him to pay victim restitution since he was not charged with the burglary of the home of Daisy G. Defendant argues that the restitution order must be stricken because there was insufficient evidence connecting him to the burglary of her home. In the alternative, if this court finds no abuse of discretion, defendant argues that the trial court miscalculated the total and the amount of the restitution order should be revised. We find no abuse of discretion and affirm the restitution order.

A jury found defendant Ioane Solia guilty of kidnapping to commit rape or oral copulation (Pen. Code, § 209, subd. (b)(1); count 1),[1] oral copulation by force, sexual penetration by force, sodomy by force, and rape (§§ 288a, subd. (c)(2), 289, subd. (a)(1), 286, subd. (c)(2), 261, subd. (a)(2); counts 2-5). Jane Doe, a woman in her early 20’s whom defendant found sitting on a street curb in Beaumont on May 17, 2008, was the victim of the crimes.
The jury also found that defendant personally used a firearm in the commission of counts 1 through 5 (§ 12022.53, subd. (b)) and found additional firearm and kidnapping allegations true in counts 2 through 5 (§§ 667.8, subd. (a), 667.61, subds. (d)(2), (e)(1), (e)(4)). The court found that defendant had a prior conviction for continuous sexual abuse of a child (§ 288.5) within the meaning of section 667.61, subdivision (d)(1), and the conviction qualified as a prior serious felony conviction and prior strike conviction (§ 667, subds. (a), (c), (e)(1)). Defendant was sentenced to 214 years to life plus 55 years in prison.