CA Unpub Decisions

Defendant Alberto Penaloza appeals his convictions on a number of felonies. He alleges the trial court erred in admitting certain testimony of the gang expert, in instructing the jury, and in failing to strike for sentencing purposes his prior “strike” conviction. He also alleges the evidence does not support his convictions for actively participating in a criminal street gang, and he received ineffective assistance of counsel. Finding no errors, we affirm.
I

Plaintiff and appellant Sarsenstone Corporation (Sarsenstone)[1] appeals from two judgments dismissing its claims against (1) defendants and respondents Michael W. Griffith (Griffith) and FCI Lender Services, Inc. (FCI; collectively Griffith and FCI are referred to as the Griffith Defendants) and (2) defendants and respondents John Joseph “Jack” Jewelinski (Jewelinski), Vicki Jewelinski, and Tri-Hook Investments, Inc. (Tri-Hook; collectively, Jewelinski, Vicki Jewelinski, and Tri-Hook are referred to as the Jewelinski Defendants).
The trial court sustained the Griffith Defendants’ demurrers to Sarsenstone’s pleading without leave to amend, finding the statute of limitations barred all claims against the Griffith Defendants and Sarsenstone failed to allege sufficient facts to state a cause of action against the Griffith Defendants. The court later found the statute of limitations also barred Sarsenstone’s claims against the Jewelinski Defendants and therefore granted their motion for judgment on the pleadings without leave to amend.

After plaintiff Castleton Real Estate & Development, Inc. (Castleton) sued defendants Tai-Fu California Partnership and Hsiuh Chin Lin (collectively Tai-Fu) to recover a real estate broker’s commission under an exclusive listing agreement for the sale of certain real property, Tai-Fu cross-complained against, inter alia, Castleton and two of its employees, cross-defendants Justin Huang and Howard Ting, seeking rescission and making other contractual claims. Tai-Fu later amended its cross-complaint to allege various torts, including negligent misrepresentation, constructive fraud, and elder abuse. The jury found in favor of Castleton and its employees on the complaint and cross-complaint. In a related case (G043720 [consol. w/ G043760 & G043787]), Tai-Fu appeals the judgment, and Castleton and another cross-defendant sued by Tai-Fu, YK America Group, Inc., cross-appeal from the order denying their motions for prejudgment interest.

Plaintiff Castleton Real Estate & Development, Inc. (Castleton) sued defendants Tai-Fu California Partnership and Hsiuh Chin Lin (collectively Tai-Fu) to recover a real estate broker’s commission under an exclusive listing agreement for the sale of certain real property. Tai-Fu cross-complained against Castleton and YK America Group, Inc. (YK) for rescission, indemnity, contribution, declaratory relief, and numerous torts. (Tai-Fu’s cross-complaint is not at issue on appeal.)
YK, in turn, cross-complained against Tai-Fu for breach of an oral contract to pay two percent compensation for services rendered upon the sale of the subject real property. In addition to a common count for money paid, YK also alleged causes of action for promissory estoppel, promissory fraud, quantum meruit, and unjust enrichment.
Following a three-week trial, a jury awarded Castleton $1.5 million on its breach of contract claim based on an offer made by a ready, willing, and able buyer and the “‘sale’” of the property during the listing period. It also found in YK’s favor on its cross-complaint against Tai-Fu for breach of contract and promissory fraud, awarding damages in the amount of $400,000.

K.R. (mother)[1] seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[2] as to her four- and two-year-old daughters, S.R. and F.R. respectively. She contends the juvenile court erred in finding that she was provided reasonable services and that there was not a substantial probability the children could be returned to her custody by the 18‑month review hearing. Thus, she asks this court to direct the juvenile court to vacate the section 366.26 hearing and to continue reunification services. We deny the petition.

On July 7, 2011, pursuant to a plea bargain, appellant Jesus Garza pled no contest to possession of heroin for sale (Health & Saf. Code, § 11351, count one) and possession of heroin (Health & Saf. Code, § 11350, subd. (a), count two). Garza also admitted allegations that he had four prior felony drug convictions (Health & Saf. Code, § 11370.2, subd. (a)). Under the agreement, Garza would be sentenced to a fixed term of five years on count one.
On August 11, 2011, the trial court sentenced Garza to the low term of two years on count one, plus three years pursuant to the prior felony drug conviction enhancement for a total prison term of five years. The court sentenced Garza to a concurrent sentence of two years on count two, but stayed the sentence on count two pursuant to Penal Code section 654.[1] The court also imposed a laboratory analysis and drug program fees pursuant to Health & Safety Code sections 11372.5 and 11372.7 respectively.
On appeal, Garza contends the trial court erred in denying his section 1538.5 suppression motion.[2] Garza further contends, and respondent concedes, that count two should have been stayed pursuant to section 654 and laboratory analysis and drug program fees were also improperly imposed on count two.

Appellants C.W. (mother) and C.M. (father) are the parents of D.M. (the child). Their parental rights as to the child were terminated. Father and mother filed separate briefs on appeal, but join in each other’s arguments. Mother claims that the beneficial parental relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)[1]) applied, and that there was no basis for jurisdiction under section 300, subdivision (g). Father contends that the order terminating parental rights should be reversed because the San Bernardino County Children and Family Services (CFS) failed to comply with the requirements under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) CFS concedes, and we agree, with the ICWA claim. Therefore, we will conditionally vacate the order and remand the matter to the juvenile court with directions to order compliance with the ICWA notice provisions. In all other respects, we affirm.

Plaintiffs and respondents Joseph A. Barracco and Jaroslaw Paluha, individuals doing business as JJ Sage Place, filed a complaint against defendants Lawrence Ramalho and Sarika Ramalho (Lawrence and Sarika) for breach of a written contract. Plaintiffs claimed that Lawrence and Sarika breached the lease agreement entered into between the parties. Plaintiffs moved for and were granted summary judgment. Defendant and appellant Lawrence Ramalho appeals,[1] contending the trial court erred in granting summary judgment because triable issues of fact exist as to their claim of breach and one or more of their affirmative defenses. We agree and reverse.

In January and February 2007, there was a series of robberies of stores in the Riverside-San Bernardino area. Each robbery was committed by three African-American men. Their faces were covered; two wore bandannas, and the third generally wore a distinctive “Scream” mask. Thus, even though there was security video footage of each robbery, the men’s identities could not be determined from the videos alone.
After the last such robbery, on February 13, 2007, the robbers’ getaway car crashed during a police pursuit. Two of the robbers were captured; the third robber escaped, but further investigation revealed that he was defendant Valen Andrew Jones. Ultimately, defendant pleaded guilty to the February 13 robbery. His cohorts pleaded guilty to that and to five earlier robberies.
In this case, defendant was charged with 11 counts of robbery (Pen. Code, § 211) and 10 counts of forcible false imprisonment (Pen. Code, § 236), all arising out of the first five robberies. The prosecution introduced evidence of the sixth and final robbery, to which defendant had already pleaded guilty, as evidence of identity.
The jury hung on all counts relating to one of the charged robberies; it found defendant guilty on all counts relating to the remainder (a total of nine counts of robbery and three counts of forcible false imprisonment). In connection with each count, the jury found that a principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).)
Defendant was sentenced to 17 years 8 months, plus the usual fines and fees.
Defendant now contends that the trial court erred by:
1. Denying defendant’s motion to strike evidence of the final robbery.
2. Finding that defendant was presumptively ineligible for probation.
3. Sentencing defendant based on a stale probation report.
We will hold that the trial court did not err by admitting evidence of the final robbery. Because the final robbery was similar, in many respects, to the charged robberies, it was relevant and, indeed, crucial evidence of defendant’s identity as one of the participants in the charged robberies.
We will also hold that the trial court did err by finding that defendant was presumptively ineligible for probation and by failing to obtain a supplemental probation report but that these errors were harmless. Hence, we will affirm.

Plaintiff and respondent US Bank National Association (US Bank) sued Rico Retail, LP (Rico Retail), Ron Hirji,[1] and defendants and appellants Anthony Cesare as Trustee of the Solomon Trust dated 3/19/98 (Solomon Trust)[2] and Ivano Stamegna for foreclosure of a deed of trust; and sued Hirji, Cesare, and Stamegna for breach of guaranty. Defendants appeal the trial court’s orders granting US Bank’s applications for a right to attach order and order for issuance of a writ of attachment against their property. Defendants contend the trial court erred by (1) concluding US Bank had established the probable validity of its claim because the guaranties on which it sued were sham and void, and (2) failing to order US Bank to post a bond as a condition of issuing the writ.
We conclude the trial court erred in failing to require US Bank to post a bond. We find no other error.

Jose E. appeals juvenile court orders terminating his parental rights to his minor children, Ricardo B., Cynthia B. and Juan B., under Welfare and Institutions Code section 366.26.[1] Jose challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating his parental rights. We affirm the orders.

Abner Haynes Lister entered into a plea agreement in which he pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359). The agreement included a stipulated sentence and the dismissal of the other charges and the three alleged prison priors. Prior to pleading guilty, Lister requested replacement of appointed counsel, which request was denied following a closed hearing. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Lister was later permitted to represent himself and made a motion to withdraw his guilty plea. That motion was denied and Lister was sentenced in accordance with the plea agreement. Lister filed a timely notice of appeal and the trial court issued a certificate of probable cause. (Pen. Code, § 1237.5.)
Lister contends the trial court erred in denying his motion to replace appointed counsel and abused its discretion in denying his motion for a continuance of the hearing on his motion to withdraw his guilty plea. Neither contention has merit. We will affirm the judgment.

A jury convicted defendant of premeditated murder and, in a separate phase of the trial, rejected his claim that he was not guilty by reason of insanity. On appeal, defendant asserts the premeditated murder judgment should be reversed because (1) the trial court erred in denying his Batson/Wheeler[1] motion based on the prosecutor's use of peremptory challenges to excuse three Hispanic prospective jurors; (2) during closing argument the prosecutor misstated the law and improperly referred to defendant's decision not to testify; and (3) there is insufficient evidence of premeditation and deliberation. We find no reversible error and affirm the judgment.

Defendant Vernon Keith Petty cashed a forged check for $611.84 on May 21, 2008. He pled no contest to forgery (Pen. Code, § 470, subd. (d)). The trial court placed him on three years’ formal probation subject to various conditions. Probation was later reinstated after he admitted to violating probation by using controlled substances and failing to submit to drug testing.