CA Unpub Decisions

The homeowners association (the HOA) of a 31-unit condominium complex known as The Arundel filed a complaint against Arundel Green Partners and related entities[1] (collectively, Arundel Green), alleging defective construction. The trial court granted Arundel Green's motion for judgment on the pleadings on the ground that the HOA's entire complaint was barred by the 10-year statute of limitations set forth in Code of Civil Procedure section 337.15 (section 337.15). Thereafter, relying on Lantzy v. Centex Homes (2003) 31 Cal.4th 363 (Lantzy), the HOA brought motions for a new trial and to amend its complaint to allege additional facts establishing equitable estoppel.[2] The trial court denied the HOA's motions, finding â€

Javario Crear was convicted of first degree murder and possession of a firearm by a felon. He argues his confession was coerced and should have been excluded. He also contends that improperly admitted hearsay identified him as the perpetrator, and that the improper identification was compounded by prosecutorial misconduct. In addition, he argues the court wrongly barred him from impeaching an investigating officer with evidence of an unrelated, unspecified police disciplinary proceeding, and that the court should not have instructed the jury on flight as showing consciousness of guilt. None of these contentions is meritorious. Accordingly, we affirm.

Defendant Frederick Francisco Ferrando appeals after a jury convicted him of vehicular burglary and receiving stolen property. He argues that there is no substantial evidence to support the conviction, that the trial court erred in instructing the jury, and that he is entitled to additional custody credits. By way of a petition for writ of habeas corpus he also challenges his conviction for petty theft after a plea of no contest in a separate case. We find no merit to defendant's contentions on appeal but shall set aside the petty theft conviction and remand that matter for further proceedings.

This case arose out of events relating to the administration of a family trust by appellant Angelo DiGirolamo (Angelo), with the assistance of his mother and co-defendant, Rosalie Pierce (Rosalie). Philip DiGirolamo (Philip) filed this action against his brother Angelo, their mother Rosalie, and Rosalie's husband Paul, alleging breach of fiduciary duty, financial abuse of a dependent adult, fraud and other torts. After a court trial, the court entered judgment against Angelo and Rosalie, holding them jointly and severally liable for damages totaling $654,048.78. Philip was also awarded attorney fees in the amount of $509,436.
Rosalie did not appeal the judgment, but Angelo did. His primary contentions are that the evidence does not support the judgment against him, Philip's claims against him are time-barred, and the trial court erred by applying provisions of the Elder Abuse and Dependent Adult Civil Protection Act (the EADACPA). (Welf. & Inst. Code, §§ 15600, et seq.) We reject all of Angelo's contentions and, therefore, affirm the judgment.

Defendant Javier Baltazar[1] was convicted after jury trial of driving under the influence of alcohol (DUI) causing injury (Veh. Code, § 23153, subd. (a)),[2] driving with a blood alcohol content of .08 or more causing injury (§ 23153, subd. (b)), leaving the scene of an accident (§ 20001, subd. (a)), driving with a suspended license (§ 14601.2, subd. (a), a misdemeanor), and giving false information to a police officer (Pen. Code, § 148.9, subd. (a), a misdemeanor). The jury further found true allegations that defendant personally inflicted great bodily injury upon two victims (§ 23558; Pen. Code, §§ 12022.7, subd. (a)). The jury found not true an allegation that defendant refused to take a chemical test (§ 23577). The court found that defendant admitted allegations that he had two prior convictions for DUI. (§ 23566.) It sentenced defendant to seven years in state prison.

A jury convicted defendant Alexander Burgos Arizmendi of possession of an assault weapon (count 1) and criminal threats (count 2) in a San Jose case and of possession of an assault weapon (count 4), negligent discharge of a firearm (count 5), and being under the influence of a controlled substance (count 3) in a Mountain View case. It also found true allegations that defendant personally used an assault weapon in committing counts 2 and 5 for purposes of a five-, six-, or 10-year sentence enhancement. The trial court sentenced defendant to 11 years and four months in prison. On appeal, defendant contends that (1) the trial court erroneously denied his motion to suppress evidence of the assault weapon in the San Jose case, (2) the trial court transgressed his constitutional right to due process by consolidating the San Jose case with the Mountain View case, and (3) the convictions for possession of an assault weapon transgress his constitutional right to bear arms. We disagree and affirm the judgment.

After a jury trial, defendant Paul Romero was found guilty of three felony counts of lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a).)[1] The victim in all three counts was M., defendant's 13-year-old stepdaughter. At the sentencing hearing, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years with various terms and conditions, including a one-year county jail sentence and a search condition.
On appeal, defendant contends that the convictions should be reversed for several reasons: (1) defense counsel was ineffective in failing to move for suppression of defendant's incriminating statements during a pretext telephone call from his wife, since the statements were obtained by police coercion; (2) defense counsel was ineffective in failing to move for suppression of defendant's incriminating statements during a police interview, since those statements were also obtained by police coercion; (3) the probation search condition is unreasonable and overbroad; and (4) defense counsel was ineffective in failing to object to the probation search condition. For the reasons stated below, we find no merit in defendant's contentions and therefore we will affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, in which he makes additional claims of ineffective assistance of counsel arising from the jury trial. We have disposed of the petition by separate order filed this date. (Cal. Rules of Court, rule 8.387(b)(2)(B).)

Defendant Timothy Anthony Casarez was convicted after jury trial of attempted murder (Pen. Code, §§ 664, 187;[1] count 1) and assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1); count 2). The jury found true allegations as to both offenses that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offense (§ 12022, subd. (b)(1)); that he personally inflicted great bodily injury (§ 12022.7, subd. (a)); and that he committed the offense for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury found not true an allegation that the attempted murder was in the first degree. The trial court denied defendant's request to strike the gang enhancement and sentenced defendant to prison for 18 years.
On appeal, defendant contends that (1) the court erred and violated his constitutional right to a jury trial by removing a juror in the middle of deliberations after accepting a verdict on one count; (2) the prosecutor committed misconduct and violated his constitutional right to confrontation by referencing inadmissible hearsay during his cross-examination of defendant; (3) the court erred in relying on improper reasons for denying the motion to strike the gang enhancement; and (4) trial counsel rendered ineffective assistance by failing to object to the improper reasons. As we find no error or abuse of discretion, we will affirm the judgment.

In 2004, Michael and Deborah Collins,[1] formerly the real parties in interest in this case, applied for a coastal development permit to build a â€

Defendant Rubicel Aguilar Perez was found guilty of committing a lewd and lascivious act against his daughter when she was 11 years old, and of committing attempted rape and assault with intent to commit a sexual offense against his adult sister‑in‑law. Defendant argues his convictions must be reversed, because the prosecutor committed prejudicial misconduct in cross-examination and closing argument. We conclude only one of the challenged questions or arguments was potentially misconduct. We also conclude defendant could not have suffered any prejudice from the one portion of the prosecutor's argument that might have constituted misconduct, because the trial court immediately admonished the jury after that argument was made.
Defendant challenges the number of days of presentence custody credits. The Attorney General agrees that defendant's custody credits were incorrectly calculated. We direct the trial court to modify the judgment to credit defendant with the correct presentence custody credits, and affirm the judgment as so modified.

In the petition for writ of habeas corpus filed on July 6, 2011, petitioner raises issues regarding his failure to timely file a notice of appeal from his felony conviction in Fresno County Superior Court. The convictions followed petitioner's jury trial.
Petitioner claims appointed trial counsel failed to timely file a notice of appeal on his behalf. Petitioner further claims he asked counsel to do so. Petitioner also attempted to file a notice of appeal, which would have been timely, but the notice was rejected as defective.
On July 12, 2011, this court invited appointed counsel to respond to the specific allegations in the petition. Counsel promptly responded by declaration filed August 3, 2011. In the declaration, counsel stated â€

On October 19, 2010, appellant, Victor Paul Lopez, Jr., was found guilty after a jury trial of felony possession of methadone (Health & Saf. Code, § 11350, subd. (a)) as charged in an information. The trial court found appellant eligible for Proposition 36 probation, suspended imposition of judgment, and placed appellant on probation for two years. At the sentencing hearing, the court also ordered that appellant pay probation costs pursuant to Penal Code section 1203.1b[1] and â€

In this matter we have reviewed and considered the petition and the record. Real parties in interest have not filed an informal response despite this court's invitation to do so. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
The time limits for filing a peremptory challenge are set forth in subdivision (a)(2) of section 170.6 of the Code of Civil Procedure.[1] As a general rule, a challenge of a judge is permitted any time before the commencement of a trial or hearing. However, section 170.6, subdivision (2), includes three express exceptions to the general rule: (1) the master calendar rule; (2) the all purpose assignment rule; and (3) the 10-day/5-day rule.
When a judge has not been assigned to a case for all purposes including trial, it is not considered an all purpose assignment or a direct calendar assignment. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1320.)

K.P. (the mother) appeals from an order terminating parental rights to three of her daughters. She argues that the juvenile court should have applied the â€