CA Unpub Decisions

ollowing a jury trial, Alexander Joseph Romero, Sr. (appellant) was found guilty of spousal abuse (Pen. Code, § 273.5, subd. (a))[1] and the allegation that he had a prior spousal abuse conviction within the past seven years was found true (§ 273.5, subd. (e)). In a bifurcated proceeding, the trial court found true the allegation that appellant was on bail at the time of the offense (§ 12022.1). The trial court sentenced appellant to six years four months in state prison.
Appellant contends that the trial court prejudicially erred in admitting prior acts of domestic violence as rebuttal evidence. We disagree and affirm.

Defendant Kenyata Levon Hutchinson stands convicted, following a jury trial, of possessing or purchasing cocaine base for sale, for the benefit of or in association with a criminal street gang (Health & Saf. Code, § 11351.5; Pen. Code,[1] § 186.22, subd. (b)(1); count 1), actively participating in a criminal street gang (§ 186.22, subd. (a); count 2), and resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 3).[2] He admitted having suffered two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)); allegations that he had served five prior prison terms (§ 667.5, subd. (b)) were dismissed. Sentenced to a total unstayed term of 13 years in prison and ordered to pay various fees, fines, and assessments, he now appeals, raising various claims of error. For the reasons that follow, we will affirm the judgment, but order correction of the abstract of judgment.

A.J. (father), contends the trial court abused its discretion when it summarily denied his Welfare and Institutions Code section 388 petition. Father filed the petition on the day of the Welfare and Institutions Code section 366.26 selection and implementation hearing to terminate father's parental rights to his infant son, C.C. Father alleged in the petition that he had completed a parenting class and drug treatment and that it would be in C.C.'s best interest either to be placed with father under a family maintenance plan or for the court to order additional reunification services. The trial court denied the petition after finding father had failed to make the required prima facie showing that the requested change would be in C.C.'s best interest. The trial court then terminated father's parental rights and ordered adoption as the permanent plan for C.C.
Father contends in this appeal that he made the required prima facie showing and therefore the trial court abused its discretion by summarily denying his petition; the trial court should have ordered a hearing on the petition. We conclude, as we explain below, the trial court did not abuse its discretion by summarily denying the petition. Therefore, we will affirm.

A.J. (father), contends the trial court abused its discretion when it summarily denied his Welfare and Institutions Code section 388 petition. Father filed the petition on the day of the Welfare and Institutions Code section 366.26 selection and implementation hearing to terminate father's parental rights to his infant son, C.C. Father alleged in the petition that he had completed a parenting class and drug treatment and that it would be in C.C.'s best interest either to be placed with father under a family maintenance plan or for the court to order additional reunification services. The trial court denied the petition after finding father had failed to make the required prima facie showing that the requested change would be in C.C.'s best interest. The trial court then terminated father's parental rights and ordered adoption as the permanent plan for C.C.
Father contends in this appeal that he made the required prima facie showing and therefore the trial court abused its discretion by summarily denying his petition; the trial court should have ordered a hearing on the petition. We conclude, as we explain below, the trial court did not abuse its discretion by summarily denying the petition. Therefore, we will affirm.

Francisco José Lopez appeals an order revoking and terminating his probation and sentencing him to three years in state prison. He contends that there was insufficient evidence to support the finding that he was in violation of one of the two conditions of probation on which the termination was based, and that it would have been an abuse of discretion to revoke his probation based solely on the remaining violation. We will reverse and remand for further proceedings.

Gwen Hammarstrom (plaintiff), refinanced her home with a loan from WMC Mortgage Corp. (WMC), through mortgage broker Residential Finance America (RFA). She subsequently defaulted on her payments and foreclosure proceedings were initiated by Cal-Western Reconveyance Corporation (Cal-Western), the substitute trustee under the deed of trust securing plaintiff's promissory note. U.S. Bank N.A. (USB) purchased the property at the trustee's sale and obtained possession in an unlawful detainer action. Plaintiff sued WMC, USB, and Cal-Western, along with Ocwen Loan Servicing, LLC (Ocwen), and Mortgage Electronic Registration Systems, Inc. (MERS), the beneficiary and nominee for WMC under the deed of trust, alleging 13 causes of action sounding in quiet title, fraud, slander of title, as well as to void the contract, deed of trust, and trustee's sale, after she lost her residence in foreclosure proceedings.
Defendants Ocwen, USB, and MERS, demurred to the first amended complaint on the ground the complaint failed to state facts sufficient to constitute a cause of action, and the trial court sustained the demurrer without leave to amend. Plaintiff appeals, asserting that trial court abused its discretion by sustaining the demurrer without leave to amend. Specifically, she seeks a reversal for an opportunity to amend her complaint. We affirm.

The Estate of Robert E. Sandhoff (the estate), appeals from a judgment determining that the estate did not own any interest in a certificate for 170,000 shares of Kilamac Farms, Inc. (Kilamac), representing a one-third interest in the corporation, whose only asset was beach front property in Hawaii. Kurt Sandhoff (Kurt),[1] the son of Robert E. Sandhoff (Robert) and administrator of the estate, had been indebted to cross-petitioner Randi Fjaeran (Fjaeran), owner of the remaining shares, for various taxes and ongoing expenses relating to the Hawaii property and had not included Fjaeran as a creditor when he declared bankruptcy in 1992. Kurt also failed to mention the 170,000 shares certificate as an asset in the bankruptcy. After discovering the discharge in bankruptcy, Fjaeran made a motion to reopen the bankruptcy which was granted, and purchased whatever interest Kurt had in the shares at the subsequent bankruptcy trustee's auction.
Kurt claimed he had transferred the shares to his father in 1990, and that the shares were property of the probate estate. Fjaeran then cross-petitioned in the probate court, obtaining a determination that she owned the certificate. The trial court found Kurt's testimony about the transfer of the shares was not credible. On appeal, the estate argues that (a) the court failed to provide a statement of decision; (b) there is insufficient evidence to support the trial court's various factual findings; and (c) the trial court erred in determining it lacked jurisdiction to hear his motion for new trial. We affirm.[2]

Defendants and Appellants Paul Scott and Susan Scott appeal from a postjudgment order in favor of plaintiff and respondent Ramona Land Church (Church) setting aside a judgment of dismissal that had been entered against Church after it failed to timely amend its complaint. Defendants contend the trial court erred by granting the motion under Code of Civil Procedure section 473[1] because Church did not establish a basis for relief under the statute's "attorney fault" mandatory relief provision, or the provision for discretionary relief based on a party's mistake, inadvertence, surprise, or excusable neglect. We conclude mandatory relief is not available under these procedural circumstances, and based on this record, we cannot imply a factual finding of counsel's excusable neglect. Accordingly, we reverse the order.

California Traditions, Inc. (California Traditions), the developer of a housing development, hired Ja‑Con Systems, Inc. (Ja‑Con) to perform the rough framing work for 30 residential units in the development. Ja‑Con was insured under a comprehensive general liability (CGL) policy issued by Claremont Liability Insurance Company (Claremont). A buyer of one of the units sued California Traditions for defective construction, and California Traditions cross-complained against Ja‑Con for indemnity.
Claremont initially provided a defense for Ja‑Con but subsequently withdrew its defense based on an exclusion in its CGL that excluded coverage for work on condominium and townhome projects (the exclusion). California Traditions, after obtaining a judgment on its cross-complaint against Ja‑Con for more than $2,000,000, filed this action against Claremont under Insurance Code section 11580 seeking to satisfy from the Claremont CGL policy the judgment it obtained against Ja‑Con.
Claremont moved for summary judgment contending that, as a matter of law, the exclusion precluded any possibility of coverage for the claims asserted against its insured because the undisputed facts showed the unit was part of a condominium project. California Traditions opposed the motion, asserting there were triable issues of fact whether Ja‑Con had a reasonable expectation of coverage because the units for which it provided framing work had many of the outward appearances of noncondominium detached single family homes. The trial court granted summary judgment in favor of Claremont, and this appeal followed.

After a second trial, a jury convicted David Jesus Barron of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) and attempted murder (§§ 664/187, subd. (a); count 2). The jury also found true allegations that Barron had personally discharged a firearm causing the death of his count 1 victim (§ 12022.53, subd. (d)) and had personally discharged a firearm during the attempted murder (§ 12022.53, subd. (c)). The trial court sentenced Barron to prison for a total term of 77 years to life.[2]
Barron appeals, contending the admission of evidence that he owned firearms and possessed ammunition, despite the lack of any evidence his firearms or ammunition were used or matched the ammunition used in the offenses, denied him due process. He also claims the trial court prejudicially erred in failing to sua sponte instruct the jury on voluntary manslaughter based on excessive force used in self-defense and on the lesser offense of involuntary manslaughter. We conclude there was no prejudicial trial error. Thus, with the exception of modifying the judgment to correct and prepare abstracts of judgment, we affirm.

Defendant Jake Wallace appeals, in propria persona, from the trial court's order issuing an amended restraining order. We shall affirm.

In exchange for the dismissal of several other counts, defendant John Thomas Collins pleaded no contest to one count of second degree burglary. He was sentenced to the upper term of three years and the following fines and fees were imposed: restitution fines of $600 in accordance with Penal Code sections 1202.4, subdivision (b), and 1202.45; a $30 court security fee (Pen. Code, § 1465.8); a $38 penalty assessment fine (Pen. Code, § 1202.5), and a $30 conviction assessment fee (Gov. Code, § 70373). Defendant was given credit for 153 days actually served plus 152 days for conduct credit.

Defendant Jeffrey Wayne Walberg appeals from the Butte County Superior Court's denial of his motion requesting retroactive application of additional conduct credits provided by the 2010 amendments to Penal Code[1] sections 2933 and 4019. Because we agree that defendant is entitled to additional presentence conduct credit, we remand with directions.[2]

Defendant Justin Thomas Ross entered a Lowe's store near closing time and forced two customers and four employees into an office at gunpoint, where he collected money from the safe and fled. He was apprehended within the hour. After his motion to suppress evidence was denied and pursuant to a negotiated disposition, defendant pled no contest to (1) assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(2)) with an admission of personal use of a firearm (§ 12022.5, subd. (a)(1)), (2) kidnapping (§ 207, subd. (a)) with an admission of personal use of a firearm (§ 12022.53, subd. (b)), and (3) false imprisonment (§ 236). He was sentenced to 16 years in state prison. On appeal, he contends the trial court erred in denying his motion to suppress. He contends there was no probable cause to support his warrantless arrest. Specifically, he contends his identification was unduly suggestive and unreliable. We disagree and affirm.