CA Unpub Decisions

Appellant Jesus M. Herrera appeals from his convictions and sentences of continuous sexual abuse of a child under the age of 14 years; lewd act upon a child under the age of 14 years; and sodomy with a child under 10 years old. Before this court, appellant asserts several errors: (1) there was insufficient evidence that he committed sodomy with a child under 10 years old; (2) the lower court erred in failing to sua sponte instruct the jury on the lesser included offense of attempted sodomy with a child under 10 years of age in count 3, and (3) failed to sua sponte instruct the jury on the lesser included offense of battery in count 2; (4) that CALCRIM No. 330 (concerning the testimony of a child witness under the age of 10) is unconstitutional; (5) the lower court erred in failing to instruct the jurors that they must unanimously agree on the specific act that violated the crime defined in Penal Code section 288;[1] (6) the lower court imposed consecutive terms of 15 years without any evident awareness of its authority to impose concurrent terms; (7) his 55-year-to-life sentence amounts to cruel and unusual punishment under federal and state law; (8) the trial court’s order that he submit a blood test pursuant to section 1202.1 is unlawful; (9) there is an error in the abstract of judgment; and, lastly, (10) the lower court erred by determining appellant was not entitled to any presentence conduct custody credits. As we shall explain, only appellant’s claims with respect to the abstract of judgment and conduct custody credits have merit.

Jose Luis Aguirre appeals from the judgment entered after his conviction by a jury for battery with serious bodily injury (Pen. Code, § 243, subd. (d)), contending the court committed instructional error and abused its discretion in denying a defense request for a continuance to allow Aguirre to locate and recall one of the People’s witnesses.[1] We affirm.

Appellant Gevonte Gwin was charged with five counts arising from three separate incidents: count 1, discharge of a firearm with gross negligence on May 5, 2007 (Pen. Code § 246.3, subd. (a)) [1]; count 2, murder of Lashaun Menefee on September 2, 2007 (§ 187, subd. (a)); count 3, attempted murder of Darryl Penniman on October 14, 2007 (§ 664/187, subd. (a)); count 4, assault with a firearm on Penniman (§ 245, subd. (a)(2)); and count 5, discharge of a firearm with gross negligence on October 14, 2007 (§ 246.3, subd. (a)). The information included firearm allegations (§§ 12022.5, 12022.53, subds. (b), (d)) and criminal street gang allegations (§§ 186.22, subds. (b)(1)(A), (B), & (C)).
The jury found appellant guilty of counts 1, 2, and 3, and not guilty of counts 4 and 5. The jury found the murder of Menefee to be in the first degree and the attempted murder of Penniman to be willful, premeditated, and deliberate. The firearm and gang allegations were found to be true. The trial court sentenced appellant to 40 years to life on count 3, a consecutive term of 50 years to life on count 2, and a consecutive two-year term on count 1. This appeal followed.

Plaintiff and appellant Hailey Stone, heir of decedent Nicholas Stone, appeals the judgment, following trial by jury, in favor of defendant and respondent Hot Dogger Tours, Inc., the entity against whom plaintiff brought a wrongful death action. Plaintiff contends the trial court made multiple evidentiary errors which deprived her of a fair trial. We find no error and affirm.

Defendant, Costco Wholesale Corporation, appeals from an August 17, 2010 judgment and denial of its motion for judgment notwithstanding the verdict. Defendant argues: it owed no duty of care of plaintiffs, Ruben, Brunilda and Anabel Soto[1]; there is instructional error; the trial court should not have permitted evidence that a former co-defendant, Robert Livingston, pled no contest to driving under the influence of a drug; it was error to introduce evidence of the use of bollards at other locations operated by defendant. On cross-appeal, Ms. Soto and Anabel argue that the trial court improperly reduced their recovery from defendant to zero because of their settlement with Mr. Livingston. We modify the judgment to reverse the credit provided to defendant by reason of the settlement with Mr. Livingston. We affirm the judgment in all other respects.

Pablo Blanco and Daniel Gonzalez (hereinafter collectively referred to as appellants and individually by their last names) timely appealed from their convictions on two counts of attempted premeditated murder and two counts of assault with a firearm. The jury found true gang and firearm allegations. On one of the attempted premeditated murder charges, the court sentenced each of the appellants to life, with an additional 25 years to life for the firearm enhancement. On the second attempted premeditated murder charge, the court sentenced each of the appellants to a consecutive term of life, with an additional 20 years for the firearm enhancement. The court stayed the sentence on the remaining counts and enhancements. Among other issues, appellants contend there was insufficient evidence to support two attempted murder convictions, the court misinstructed the jury about a kill zone and about the natural and probable consequences doctrine, and the court did not adequately insure the panel was not tainted by the misconduct of a discharged juror. We affirm the judgments.

Isaac M. (appellant), born in 1995, appeals a juvenile court dispositional order committing him to the Division of Juvenile Justice (DJJ).[1] The court set the maximum term of confinement (MTC) at 11 years eight months. Appellant contends the juvenile court abused its discretion in committing him to DJJ and failed to exercise its discretion in setting his MTC. Appellant also contends his trial counsel rendered ineffective assistance in failing to advocate for a lower MTC. We reject the contentions and affirm.

Appellant Steven Joseph Duca Stuart, acting in propria persona, appeals from several orders of the family court, including: (1) a May 10, 2011 order regarding child support and denial of a motion to set aside a stipulated judgment (May 10 Order); (2) a January 7, 2011 order regarding a request to modify support and reinstatement of licenses (January 7 Order); and (3) a March 29, 2011 order denying relief under Code of Civil Procedure section 473 and denying reconsideration of the January 7 Order (March 29 Order).
The appeal from the January 7 Order is untimely, and is hereby dismissed (Cal. Rules of Court, rules 8.104, 8.108).[1] As to the March 29 Order, that order is not appealable, and is hereby dismissed (Code Civ. Proc., § 1008, subd. (g); Powell v. County of Orange (2011) 197 Cal.App.4th 1573 (Powell).) Furthermore, as to all of the orders appealed from, appellant has failed to comply with rule 8.204(a)(1)(C), and for this additional reason, we dismiss the entire appeal.

This appeal is the most recent chapter in the protracted litigation pursued by North Pacifica, LLC (NP) to see its proposed coastal development project in the City of Pacifica (City) come to fruition. We affirm.

On October 24, 2011, defendant Clancy Ray Smith pleaded guilty to one count of second degree robbery (Pen. Code, § 211)[1] as well as admitted allegations that he had suffered both a prior strike conviction (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)). On December 15, 2011, after granting Smith’s Romero[2] motion, the trial court struck the prior strike and the prior prison term allegation, along with all remaining charges, enhancements and special allegations. Smith was sentenced to the lower term of two years in prison, and awarded custody credits of 131 days and 19 days of conduct credits for a total of 150 days.
We appointed counsel to represent Smith in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Smith of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Smith.

In this marital dissolution action, appellant Maya Foglar seeks review of an order denying her request for pendente lite attorney fees from respondent Christian Foglar.[1] Maya contends that the family court violated Family Code sections 2030 and 2032 by refusing to award temporary fees equal to the amount Christian had paid his own attorney. We will affirm the order.

In a negotiated disposition following the denial of his suppression motion, defendant Jesus David Martinez pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a gang enhancement allegation (Pen. Code, § 186.22, subd. (b)(1)).[1] He was sentenced to 40 months in prison.
On appeal, defendant contends that (1) the trial court prejudicially erred in denying his suppression motion (§ 1538.5); (2) to the extent that motion was inadequate, his trial counsel was prejudicially deficient in failing to move to suppress “a cell phone found on [defendant’s] person, text messages found on the phone, additional drugs found in the car driven by [his codefendant], and statements made by [him and his codefendant]”; (3) the trial court’s failure to apply the October 1, 2011 version of section 4019 retroactively violated his right to equal protection; (4) the trial court erred “in imposing a $200 fee” under Health and Safety Code section 11372.5, subdivision (a); and (5) the abstract of judgment must be corrected to reflect a $600 restitution fine. We reject defendant’s first three claims but conclude that the last two have merit. We modify and affirm the judgment.

We now reach the fourth appeal. Kristine Adams (Adams) challenges a judgment of dismissal after an order sustaining a demurrer in her second lawsuit against Newport Crest Homeowners Association and certain others (collectively, Newport Crest). She contends, inter alia, that her second lawsuit is not completely barred by either issue preclusion or the litigation privilege. We agree. We reverse and remand.

Defendants[1] appeal from a postjudgment order awarding attorney fees to plaintiffs.[2] But the court awarded those fees pursuant to an indemnification clause that does not provide for recovery of attorney fees in an action between the parties. The order is reversed.