CA Unpub Decisions

A modification decision.

Victor Alvarez Tovar appeals the judgment entered after a jury convicted him on two counts of kidnapping to commit robbery (Pen. Code,[1] § 209, subd. (b)(1)), and one count of second degree robbery (§ 211). The trial court sentenced him to an aggregate sentence of life in prison with the possibility of parole plus three years, consisting of two concurrent life terms on the kidnapping to commit robbery counts plus a consecutive three-year term for the robbery. Appellant contends (1) the court erred in admitting the preliminary hearing testimony and other evidence relating to a purportedly unavailable witness; (2) the sentence imposed on the robbery count should have been stayed under section 654; (3) his sentence amounts to cruel and unusual punishment; and (4) the court committed instructional error. We shall order the sentence on the robbery count stayed. Otherwise, we affirm.

Appellants Dwight Rolland Shelton and Joseph Allen Little challenge their convictions for making false financial statements, grand theft, forgery, and other crimes related to six real estate transactions. They maintain that the trial court adopted the role of prosecutor during their trial, that there was evidentiary error, and that they were improperly subjected to multiple punishments in contravention of Penal Code section 654; in addition, Little contends there was insufficient evidence to support his convictions, and Shelton contends that the abstract of judgment regarding his convictions contains errors.[1] With the exception of Shelton’s challenge to the abstract of judgment, we reject these contentions. We therefore order that Shelton’s abstract of judgment be modified, and otherwise affirm.

Benning and Christopher Richardson (Richardsons) appeal from orders granting the motions of defendants, Barbara Matin (Matin) and Wendell McArthur (McArthur), to quash service of summons for lack of personal jurisdiction. The Richardsons assert three grounds for reversal. They argue that Matin and McArthur had the necessary minimum contacts to warrant personal jurisdiction over them in California; that the trial court’s consideration of the motions to quash was beyond its authority because a motion to transfer was also pending; and that Matin and McArthur waived their personal jurisdiction defense through other actions taken in the proceedings. We conclude that the trial court properly found no constitutionally sufficient basis for California to exercise jurisdiction over either Matin or McArthur. Thus, we affirm.

Defendant Michael Trindle appeals after the trial court denied his motion to reduce his conviction of a violation of Vehicle Code[1] section 23153 from a felony to a misdemeanor. We find no abuse of discretion, and affirm.

On the night of March 11, 2005, Sergio Dueñas was shot and killed, and Carlos Castañeda was wounded, in a drive-by shooting in Hayward. Frank Ledesma, Sr. (Ledesma Sr.), his son Frank Ledesma, Jr. (Ledesma Jr.), and José Mesaramos (collectively, appellants) were arrested shortly after a police pursuit. Mesaramos was identified as the driver of the suspect vehicle, and the Ledesmas were identified as the shooters.
After a joint trial lasting more than a month, all three were convicted by a jury of the first degree murder of Dueñas (Pen. Code, § 187, subd. (a); Count 1),[1] with a special circumstance finding that the murder was intentional and committed by shooting from a vehicle at a person outside it with intent to inflict death (§ 190.2, subd. (a)(21)). Appellants were also convicted of two counts of attempted murder (§§ 187, 664; Counts 2 and 3). Mesaramos was convicted of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); Count 4), and Ledesma Sr. was convicted of possession of a firearm by a felon (former § 12021, subd. (a)(1); Count 5). The jury also found that, inter alia, appellants committed the murder and attempted murders for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that all three appellants personally and intentionally discharged a firearm proximately causing great bodily injury or death, within the meaning of former section 12022.53, subdivision (d). Each appellant was sentenced to life without the possibility of parole for the murder, two consecutive determinate terms of seven years on the attempted murders, and two consecutive terms of 25 years to life, plus a 20-year term, for the firearm enhancements. Ledesma Sr. and Mesaramos were each sentenced to an additional two-year term, to run concurrently, on Counts 4 and 5.
Appellants seek reversal of their convictions on a number of grounds. We affirm.

On October 14, 2010, appellant was charged by information with second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The information contained an allegation that prior to the commission of the offense appellant had been convicted of a serious felony, robbery, within the meaning of Penal Code sections 667, subdivision (a) and 1192.7, which was also a violent felony as defined in Penal Code sections 667.5, subdivision (c) and 1192.7, subdivision (c); and that he had served a prior prison term for the offense within the meaning of Penal Code section 667.5, subdivision (b).

The trial court awarded defendant Rene Gisbert 88 days of presentence custody credits, after defendant pled guilty to second degree vehicle burglary. The court later granted the prosecution’s motion to vacate the credits, and defendant appeals from that postjudgment order.
The trial court had jurisdiction to entertain the prosecution’s motion because an unauthorized sentence may be corrected at any time. Defendant was not entitled to any presentence custody credits because he would not have been free of custody but for his incarceration while awaiting trial on the second degree vehicle burglary charge, as he was already committed to state prison in connection with an earlier burglary conviction. The award of presentence custody credits where credits were impermissible made the first sentence unauthorized. We therefore affirm the postjudgment order.

This is an appeal from a judgment in a divorce case involving a marriage that lasted just short of five years. Appellant Gary Pesner challenges four aspects about the judgment: (1) He claims the court should have joined two businesses to the dissolution proceeding in which the marital community had an interest, namely the Goldman-Pesner partnership (GP) and the IPR Fund III, LLC (IPR). (2) He claims that the trial court erred in charging him with the postseparation receipt of $137,000 of community funds without taking into account evidence that he repaid most of the money. (3) He claims that he should have received credit for $140,000 of separate property that he claims he contributed to the family home on Ridgewood Place in Yorba Linda. (See Fam. Code, § 2640, all further statutory references are to that code.) And (4) he claims the trial court abused its discretion when it imposed attorney fee sanctions of $40,000, payable at the rate of $750 a month for his conduct in frustrating the policy of the law to promote settlement or otherwise facilitate cooperation between the parties and their attorneys. (See § 271.) Challenges (1) and (3) have been waived by failure to raise the relevant arguments in the trial court. Challenges (2) and (4) fail on their merits.

A jury convicted defendant Gemma Jayde Ramirez of attempted murder (Pen. Code, §§ 187 & 664; all further statutory references are to this code) and domestic battery with corporal injury (§ 273.5, subd. (a)). As to count 1, it also found true allegations she used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (e)).
Prior to trial, defendant moved to suppress evidence, including the knife used in committing the crimes. The court denied the motion.
After the jury found her guilty of all charges, defendant, with new counsel, moved for a new trial on the basis the verdict was not supported by substantial evidence and she received ineffective assistance when trial counsel failed to present testimony from a Battered Women’s Syndrome (BWS) expert. The court denied the motion and sentenced her to nine years in prison.
Defendant contends the court erred in denying her motion to suppress evidence and her counsel was ineffective because they did not present expert testimony on BWS. Finding no error, we affirm the judgment.

Defendant Than Long Hua, as Trustee for the Hua Trust PT, appeals from a judgment in favor of plaintiffs Rival Water Well Specialty (Specialty) and Rival Well Services, Inc. (Services) in the sum of $112,052 for services performed to reabandon (cap) a nonproducing oil well owned by defendant. He appeals on numerous grounds, many of which challenge plaintiffs’ contractors licensing, including failure to allege or prove a license and lack of a proper license. He also claims he was not permitted to question a witness about licensing and the court erred when it allowed addition of a second plaintiff right before voir dire.
Plaintiffs appeal, arguing the court erroneously denied their motion to amend the complaint to add a cause of action for promissory fraud to conform to proof.
Finding no error, we affirm.

Ashley, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26[1] hearing as to her daughter T. She contends the juvenile court erred in finding she did not regularly participate and make progress in her reunification plan. (§ 366.21, subd. (e).) We will deny the petition.

Petitioner seeks permission to file a belated notice of appeal. The Attorney General was given an opportunity to file opposition to the request and told that its failure to do so would be treated as consent to the requested relief being granted without further proceedings.
The failure of the Attorney General to file a response to the petition for writ of habeas corpus filed by Petitioner on December 28, 2011, is, in accordance with our order filed March 1, 2012, deemed to constitute an agreement that the requested relief ought to be granted without further proceedings. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)

Appellant, D.F., a minor, was initially adjudged a ward of the court and placed on probation in 2007, for possession of a concealed firearm by a minor, in violation of former Penal Code section 12101, subdivision (a)(1) (section 12101(a)(1)).[1] In 2010, he was readjudged a ward and continued on probation, following a second adjudication of the same offense. In the instant case, following a contested jurisdiction hearing in February 2011, the juvenile court found true an allegation that appellant committed a third section 12101(a)(1) violation, and, following the subsequent disposition hearing in June 2011, again readjudged appellant a ward of the court, continued him on probation, ordered him removed from the physical custody of his mother, placed him on the electronic monitoring program for 90 days, and declared his maximum term of confinement (Welf. & Inst. Code, § 726, subd. (c)) to be three years eight months.
On appeal, appellant’s sole contention is that the juvenile court erred in failing to declare on the record, at either the jurisdiction hearing or the disposition hearing, the instant offense to be a felony or a misdemeanor. We affirm.