CA Unpub Decisions

Kevin Tyron Stanford, defendant and appellant (defendant), appeals from the judgment entered after a jury found him guilty of first degree murder in violation of Penal Code section 187, subdivision (a)[1] (count 1), discharge of a firearm with gross negligence in violation of section 246.3, subdivision (a) (count 2), and second degree robbery in violation of section 211 (count 4).[2] In connection with all three counts, the jury also made true findings on the special allegations that the crimes were hate crimes within the meaning of section 422.75, subdivision (a), and that in connection with counts 1 and 4 defendant personally used, discharged and caused death with a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d). On January 14, 2011, the trial court sentenced defendant on count 1 to serve 25 years to life on the first degree murder conviction and a consecutive term of 25 years to life on the gun use enhancement, plus a total of 22 years four months on the other counts, hate crime, and gun use enhancements.

Plaintiff and Appellant Timothy Shuey, as Conservator of the Person and Estate of Bessie Neilson et al., appeals from the judgments entered upon the trial court's grant of (1) the motion for judgment on the pleadings of defendants and respondents Scott Edward Darling et al., (2) the motion for summary adjudication and the motion for summary judgment of defendant and respondent Financial Freedom Senior Funding Corporation, and (3) the motion for summary judgment of PMA, Inc. et al.[1]

Defendant and appellant William Gipson appeals from an award of presentence custody credits under Penal Code section 4019[1] after he admitted violating his probation and was sentenced to serve a prison term.

Danielle S. contends the juvenile court erred when it set a hearing to select and implement a permanency plan for her son, Z.G., under Welfare and Institutions Code[1] section 366.26. She argues the juvenile court was required to consider the possibility or probability she would qualify for extended services at the 18-month review hearing in determining at the 12-month hearing whether to extended services. We deny the petition.

The San Diego County Health and Human Services Agency (Agency) removed the twins from the care of their mother after the twins reported to their school counselor that their mother beat them with a belt and other objects.
Florence gave birth to the twins in 2002. She did not know the identity of their father, since at the time of conception she was in relationships with four different men. Despite due diligence efforts, the whereabouts of the potential fathers remain unknown. None of the potential fathers are parties to this appeal.
Because Florence's pregnancy was considered high risk, she stayed with a friend, A.C. The twins were born prematurely at 28 weeks. Florence spent six months in the hospital after giving birth, and asked A.C. to take care of the twins "until [she] got on [her] feet." A.C., in turn, made a mutual friend, P.C., the twins' godmother.
Florence was "mostly out" of the twins' lives for the first few years. P.C. was the primary caregiver during that time, though Florence asserts she acted as primary caregiver at times. In 2005, when the twins were three, Florence became employed and attempted to get her children back. P.C. resisted this. The twins were removed from P.C.'s home and later released into Florence's custody, after she proved that she had sole legal custody over them. Florence allowed the children to stay with P.C. on weekends. J.Q. often referred to P.C. as "my other mom." The twins expressed their desire to live with P.C. instead of their mother.
In 2006 and 2007, the Agency received several referrals alleging general neglect, burns from a curling iron, and that Florence was striking the twins with a belt. No action resulted from these referrals.
In May 2011, J.Q. asked his school counselor if he could talk to her about his feelings. The counselor told him to come to her office the following morning. When he arrived, J.Q. told her that he was being hit at home by Florence, sometimes with a cell phone charging cord, other times with a belt and buckle. He showed the counselor a bruise on his right hip. He said he got the bruise when Florence hit him with the belt and a buckle after he played with his puppy and a ball in the house. He said Florence hit him with the phone charger cord for going into the kitchen without permission.
J.Z. confirmed that Florence hit J.Q. with a belt after J.Q. accidentally dropped their puppy, and that she has hit J.Q. with the phone charger for going into the kitchen without permission. He said that Florence hit J.Q. almost every day but never hit him, saying, "I am the good child and [J.Q.] is the bad child." J.Z., like J.Q., did not want to return to Florence's home, but asked to live with P.C.
The counselor called law enforcement officers, who interviewed the twins and took photographs of their injuries. The officer then took the twins into protective custody.
Both J.Q. and J.Z. underwent a physical examination. J.Q. had a large, square-shaped bruise on his hip. J.Q. told the physician examining him that Florence was "dangerous" and "whoop[ed]" him with a belt. The physician noted that J.Q.'s injury was "very typical of belt marks" and concluded that J.Q. had inflicted injuries on his body. J.Z. reported that his mother "whooped" him with an open hand, but that his brother received worse punishments.
Florence adamantly denied committing any physical abuse against the twins. She told a social worker that J.Q. received the bruises on his legs after wrestling with his brother, but said this before the social worker informed her that bruises had been found on his legs. She maintained that she was strict with the twins, but never abusive.

A petition filed in the juvenile court alleged Fernando M. came within the provisions of Welfare and Institutions Code section 602[1] based on the allegation of one count of misdemeanor indecent exposure (Pen. Code, § 314, subd. (1)). After a trial on the issue, the court sustained the allegation.

At the disposition hearing, the court decided to "follow probation's recommendation[s]," which included: (1) continued wardship; (2) care, custody, and control of Fernando under the supervision of the probation officer; (3) detention in juvenile hall pending a Breaking Cycles reassessment; (4) a discretionary fine in the amount of $60 (§ 730.5); and (5) a mandatory fine in the amount of $50 (§ 730.6).

Fernando contends imposition of the $60 fine was never orally pronounced by the court at the disposition hearing and should therefore be stricken. He further contends the imposition of the $60 fine is in error because the court did not consider his ability to pay it. We conclude that the court did pronounce imposition of the fine because it was a part of the probation report's recommendations and Fernando forfeited his claim regarding his ability to pay the fine.

A jury convicted Ricky Dwayne Erickson of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)), and found true the allegation that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Erickson waived jury trial on the alleged prior convictions and the court found true one serious felony prior conviction within the meaning of section 667, subdivision (a)(1), two serious/violent felony prior convictions (strikes) within the meaning of section 667, subdivisions (b) through (i), and two prison priors within the meaning of section 667.5, subdivision (b).
The court denied Erickson's motion to strike one of the "strike" priors. Thereafter the court imposed an indeterminate term of 25 years to life, consecutive to a determinate term of 10 years. The determinate term consists of five years for the section 667, subdivision (a)(1), prior conviction, two years for the two prison priors and three years for the great bodily injury enhancement under section 12022.7, subdivision (a).
Erickson appeals challenging only the sentence imposed. He contends the trial court prejudicially erred in stating the three-year term for the great bodily injury enhancement was "mandatory," that the trial court abused its discretion in denying his request to dismiss one of his "strike" priors and finally that there is a clerical error in the abstract of judgment. We agree the abstract of judgment should be corrected. Otherwise we find Erickson's contentions to be without merit and affirm the judgment.

David J., a minor, was charged with one misdemeanor count of unlawfully attempting to enter a building with the intent to commit theft (Pen. Code,[1] §§ 459, 664) and one misdemeanor count of unlawfully and maliciously damaging and destroying real and personal property amounting to less than $400 (§ 594(a)(b)(2)(A)). The juvenile court dismissed the first count, but adjudged David a ward of the court as to count 2. David appeals, challenging the sufficiency of the evidence to support the court's finding that he unlawfully damaged the front door of Stage Stop Liquor. We affirm the judgment.

A jury convicted Sergio Espinoza Conde of four counts of lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a));[1] three counts of forcible lewd acts on a child under the age of 14 years (§ 288, subd. (b)(1)); and one count of misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). As to each of the felony counts, the jury also made a true finding that Conde committed an offense described in section 667.61, subdivision (c) against more than one victim. The trial court sentenced Conde to an indeterminate prison term of 105 years to life.
Conde contends that (1) the evidence of certain uncharged sexual offenses against other victims should not have been admitted under Evidence Code section 1108 to the extent that those offenses occurred in Mexico; (2) the trial court should have excluded evidence of uncharged sexual offenses pursuant to Evidence Code section 352; (3) Evidence Code section 1108 is unconstitutional because it permits evidence of uncharged sexual offenses to be admitted to prove that the defendant had the propensity to commit the charged sexual offenses; (4) CALCRIM No. 1191, which instructs the jury that uncharged crimes must be proved by a preponderance of the evidence, is erroneous because it conflicts with the beyond a reasonable doubt standard contained in jury instructions concerning circumstantial evidence; (5) we should review the psychotherapy records of Conde's victims to determine whether the trial court properly quashed subpoenas concerning those records; (6) the trial court should only have imposed two 15-years-to-life terms under section 667.61, subdivision (b) based on the jury's finding that Conde committed lewd acts against more than one victim, rather than seven such sentences; and (7) the trial court's imposition of a $400 sex registration fee under section 290.3 was not supported by the trial court's findings or by substantial evidence. We conclude that Conde's arguments lack merit, and accordingly we affirm the judgment.

Plaintiffs and appellants Paul Moebius, Kurt Jafay and Daniel Horwitz, all shareholders of Pixels Animation Studios, Inc. (Pixels), appeal from a judgment on the pleadings in favor of defendants and respondents Silicon Color, Inc. (Silicon), and its directors Peter Carton, Roland Wood, Kenn Walker, Teague Cowley and Steve Thompson. Alleging their action was a derivative suit, plaintiffs sought to recover benefits defendants were alleged to have received as a result of the diversion of a Pixels business opportunity by another Silicon director, Andrew Bryant. The trial court granted judgment on the pleadings in part on grounds plaintiffs failed to state a claim for unjust enrichment; the claim was time-barred; and absent assertion of an alter ego theory, the individual shareholders could not be held personally liable. The court denied plaintiffs' later request for leave to amend.
Plaintiffs contend the complaint states timely causes of action for unjust enrichment as well as conspiracy to breach fiduciary duty, and the alter ego doctrine is not necessary to impose liability on the defendant directors. They argue the court erred in denying them leave to amend to allege the conspiracy cause of action. In addition to disputing these arguments, defendants contend plaintiffs lack standing to bring suit because they failed to comply with Corporations Code section 800.
We find merit in defendants' assertion that plaintiffs lack standing to bring this derivative action for their failure to meet prerequisite demand requirements or demonstrate such a demand would be futile. In reaching this conclusion we reject plaintiffs' assertion that the action may be brought as an individual direct action. Accordingly, we affirm the judgment.

Defendant's appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
In March 2000, defendant was convicted of robbery. In September 2010, while armed with a handgun, defendant Adam Wendel Coleman took personal property from Nicole Rodriguez. The offense was committed in an inhabited dwelling.

Between September 5, 2009, and September 29, 2009, defendant Ronald Jay Valeck placed 9-1-1 emergency telephone calls in which he reported that bombs had been placed at an apartment complex and a school.[1] A person who was familiar with defendant's voice listened to recordings of the calls and identified the caller as defendant.
Defendant pleaded guilty to one count of making a false report of a bomb or explosive. (Pen. Code,[2] § 148.1.) In exchange, two counts of that offense and one count of using a 9-1-1 emergency line with intent to harass (§ 653x, subd. (a)) were dismissed.

Defendant Adam Ramsey pled no contest to attempted escape from a jail facility by force and admitted both a firearm enhancement and a strike offense. In exchange for his plea, a second strike offense and a separate charge of firing at an inhabited building were dismissed. The prosecution also agreed not to file any charges in an unrelated incident as part of the plea agreement. Defendant was sentenced to a negotiated term of six years in prison, doubled to 12 years for the strike, plus an additional year for the firearm enhancement, bringing the entire term of imprisonment to 13 years.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Defendant Susan Elaline Ogburn was charged by information with voluntary manslaughter (count one; Pen. Code, § 192, subd. (a); undesignated statutory references are to the Penal Code) and discharging a firearm in a grossly negligent manner which could result in injury and death (count two; § 246.3). As to count one, it was alleged that defendant personally used a firearm in the commission of the offense. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
After originally pleading not guilty and denying the allegation, defendant entered a new plea of no contest to count one, with the remaining charge and allegation dismissed and a waiver of credit for time served up to the date of the plea change.