CA Unpub Decisions

JPMorgan Chase Bank, N.A. (Chase) foreclosed on John Borazjoni’s home through nonjudicial foreclosure, and Borazjoni sued. The trial court granted summary judgment in Chase’s favor, and Borazjoni appeals. We affirm the summary adjudication of the breach of contract and negligent misrepresentation claims but otherwise reverse.

A jury convicted defendant James Landrum, Sr., of one count of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2)[1] (count 1); one count of attempted willful, deliberate and premeditated murder in violation of sections 664, 187, subdivision (a) (count 2); and one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (count 4). The jury found true with respect to count 1 that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). In count 2, the jury found that defendant personally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d).
The trial court sentenced defendant to state prison for 35 years to life. In count 2, the trial court imposed life in prison with a mandatory minimum of seven years, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. In count 1, the trial court imposed the midterm of three years, to run consecutive to the sentence in count 2. In count 4, the trial court imposed eight months (one-third the midterm of two years), to run concurrent to the sentence imposed in count 2. The trial court awarded defendant a total of 600 days of presentence custody credit, consisting of 600 days of actual custody and no days for good conduct.
Defendant appeals on the grounds that: (1) the abstract of judgment must be corrected to accurately reflect the trial court’s oral pronouncement of judgment; and (2) defendant is entitled to presentence conduct credits at 15 percent under section 2933.1.

Defendant and appellant Daryl Lynch appeals from the judgment entered following a jury trial that resulted in his convictions for first degree felony murder, carjacking and attempted carjacking, second degree robbery, and evading an officer, causing death. The trial court sentenced Lynch to life in prison without the possibility of parole. Lynch contends the evidence was insufficient to support the jury’s special circumstance findings, as well as his convictions for murder, attempted carjacking, and robbery; the People improperly alleged special circumstances in conjunction with a felony-murder theory; and his sentence constitutes cruel and unusual punishment. We affirm.

Defendant Leroy Bruce Thompson appeals from a judgment entered following his conviction by a jury trial of four counts of second degree robbery (Pen. Code,[1] § 211), eight counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of attempted second degree robbery (§§ 211, 664). After a court trial, the following allegations as to all counts were found to be true: (1) a principal was armed with a firearm (§ 12022, subd. (a)(1)); (2) defendant personally used a firearm (§ 12022.53, subd. (b)); (3) defendant had suffered three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12); (4) defendant had suffered three prior convictions of a serious felony (§ 667, subd. (a)(1)); and (5) defendant had served three prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to 236 years to life plus 38 years in state prison.
On appeal, defendant contends the trial court abused its discretion in denying his Marsden[2] and Romero[3] motions, and in failing to stay the sentence on count 11 (attempted robbery). We find no ground for reversal and affirm the judgment.

Art Frank Ontiveros appeals from the judgment entered after his conviction by a jury of attempted murder with true findings on related gang and weapon-use enhancements. Ontiveros contends the trial court committed prejudicial error in its evidentiary rulings and when instructing the jury and he received constitutionally ineffective assistance from his counsel. We affirm.

Defendant Walter Johnson appeals from a judgment of conviction entered after a jury trial. Defendant was convicted of second degree murder (Pen. Code,[1] § 187, subd. (a)). The jury found true the allegation defendant personally and intentionally discharged a firearm in the commission of the crime (§ 12022.53, subd. (d)).[2] The trial court sentenced defendant to a total term of 40 years to life in state prison: 15 years to life for the second degree murder conviction, plus a consecutive term of 25 years to life for the firearm use enhancement.
On appeal, defendant claims instructional error. We affirm.

Defendant Erik Louis Vigouroux appeals from the judgment entered following successive jury trials in which he was convicted of two counts of carjacking and one count of resisting an executive officer. Defendant contends the trial court erred by denying his motion for a judgment of acquittal of the carjacking charges and violated his confrontation rights by admitting particular evidence. We affirm.

A jury convicted defendant, Santiago Flores, of attempted willful, deliberate and premeditated murder (Penal Code,[1] §§ 187, subd. (a), 664, subd. (a)) and found it was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The jury further found defendant discharged a firearm in the commission of the offense.
(§ 12022.53, subds. (b), (c).) Defendant was sentenced to life with the possibility of parole plus 30 years. Defendant argues there was insufficient evidence of attempted murder and premeditation. Defendant further asserts it was fundamentally unfair for the prosecutor to renege on an agreement to instruct on a lesser related offense. We affirm the judgment but modify the sentence to delete the 10-year enhancement imposed under section 186.22, subdivision (b)(1)(C) and to impose a 15-year wait for release on parole.

In an information, the People charged defendant Bryantee Chavon Milligan with selling cocaine (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of marijuana for sale (id., § 11359; count 2). The People further alleged as to both counts that defendant suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior convictions for drug related offenses (Health & Saf. Code, § 11370.2, subd. (a)) and served two prior prison terms (Pen. Code, § 667.5).
A jury found defendant guilty on count 1. As to count 2, the jury found defendant not guilty of possession of marijuana for sale but found him guilty of the lesser included offense of simple possession of marijuana, an infraction. Although defendant thereafter admitted all prior conviction allegations, it later was determined that defendant did not actually suffer a prior strike conviction. Ultimately, the trial court sentenced defendant to state prison for a total of nine years, consisting of the upper term of five years on count 1, plus three years for one of his prior drug convictions and one year for a prior prison term.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction for selling cocaine. He further contends that the trial court erroneously denied his Marsden[1] motion and, should we conclude otherwise, that the trial court erroneously denied his motion for a new trial on the ground of ineffective assistance of counsel. Finally, defendant asks us to review independently the sealed transcripts of the in camera hearings on his motion to disclose confidential informant and Pitchess[2] motions. We reverse and remand for a new trial.

In exchange for conditional release, Ross Wollschlager admitted the allegations of a petition to extend his commitment as a sexually violent predator (SVP) for an indeterminate term. (Welf. & Inst. Code, §§ 6600 et seq., the SVPA.)[1] Within a few weeks of release, Wollschlager violated a term of his release that required him to stay away from children. The court revoked his release. He challenges the revocation and the underlying commitment.
We conclude that substantial evidence supports the revocation order. We reject Wollschlager's contentions that the underlying commitment is invalid. We affirm.

By timely petition for writ of prohibition, (Pen. Code, §§ 1510, 999a), Marcos Alvarez challenges the denial of his motion to set aside the information on file against him (Pen. Code, § 995). Alvarez is charged in count I with a violation of Vehicle Code section 23153, subdivision (a) driving under the influence of alcohol causing injury, and in count II with a violation of subdivision (b) of the same section, driving with an 0.08 percent blood-alcohol content causing injury. As to both counts, the information alleges that Alvarez’s conduct inflicted great bodily injury and injury to multiple victims. (Pen. Code, §§ 12022.7, subd. (a) & Veh. Code § 23558.)
Alvarez contends insufficient evidence was presented at the preliminary hearing to support the charges. For the reasons explained below, we will grant the petition as to count II (driving with an 0.08 percent blood-alcohol content).[2]

Defendant Kelvin Edward Vigil appeals from the sentence imposed by the trial court after he pled no contest to a charge of commercial burglary. He argues that his constitutional equal protection rights require the retroactive application of Penal Code section 4019 (section 4019),[1] as amended in October 2011, to award him additional presentence conduct credits despite the statute’s stated prospective application. He also contends the matter must be remanded for the court to clarify certain fines imposed at sentencing. We vacate the contested fine orders and remand for clarification as to the mandatory fines imposed. In all other respects we affirm the judgment.

Appellants Richard Terry Gaines and Mary Lee Gaines, who are brother and sister,[1] were tried jointly and convicted of various charges arising from the fatal shooting of Richard’s estranged girlfriend, Sheila Hegler (Hegler). On appeal, they both argue that the trial court erred in refusing to admit evidence of the unrelated subsequent arrest of Hegler’s son, Richard Tucker (Tucker), who was the sole eyewitness who testified to the shooting. We reject this contention on the ground that any error was harmless.
In addition, Richard argues that the trial court erred in admitting evidence that he was required to wear a tracking device, and that Hegler told a neighbor that when Richard was angry at her, he hid the magnifying glass Hegler used for reading and watching television. We reject these contentions. We agree, however, with Richard’s contention that his conviction for soliciting the murder of Tucker was not supported by sufficient evidence corroborating Tucker’s testimony. Accordingly, we reverse that conviction only, and remand for resentencing.

Defendant Clementino Alarcon sexually penetrated his four-year-old niece on multiple occasions. He told his fearful niece not to tell anyone about his conduct. He was originally charged by information with sexual penetration with a child aged 10 or younger (Pen. Code, § 288.7, subd. (b)) and lewd conduct with a child under 14 (Pen. Code, § 288, subd. (a)). A jury trial commenced in February 2011. The information was amended at trial to add a second lewd conduct count. The jury was unable to reach a unanimous verdict despite lengthy deliberations, and the court declared a mistrial.