CA Unpub Decisions

A modification decision.

Defendant Ramon Solorio Rodriguez appeals the judgment entered after a jury convicted him on multiple counts of grand theft by false pretenses, in violation of Penal Code, section 487.[1] The victims in this case were all Mexican immigrants residing illegally in the United States who paid defendant sums of money based upon his assurance that he would obtain legal residency in the U.S. for them through the process of applying for political asylum followed by cancellation of removal. In case number A121601, defendant contends that: (1) six of the counts of conviction are barred by the applicable statute of limitations; (2) the entire jury verdict should be reversed because there was no substantial evidence that defendant acted with requisite criminal intent. In case number A125057, defendant appeals the trial court's post-judgment restitution order, entered on the respective counts of conviction, on various grounds. We have consolidated these two appeals, which arise out of the same underlying facts, for purposes of argument and disposition.
Having thoroughly evaluated defendant's claims of error, we conclude that defendant's convictions on counts 9 and 11 must be reversed on statute of limitations grounds. In addition, we reverse the trial court's restitution order on these counts as well. In all other respects, Court affirm the judgment and the trial court's restitution order.

Defendant Scott Patrick McKinstry was convicted of second degree murder for the death of his girlfriend, Stephanie Sarabia Day, and of being a felon in possession of firearms. On appeal, he contends the trial court erroneously instructed on felony murder based on an assaultive-type felony. Concluding the error was harmless, Court affirm.

Plaintiff and appellant Vincent W. Shack sued six defendants, alleging two causes of action against each of them for general negligence and intentional tort. Both claims arose during a professional golfing event, namely, the 2007 Samsung World Championship, which Shack attended at the Bighorn Country Club in Palm Desert on October 11 and 12, 2007. All six defendants successfully moved to strike both causes of action under Code of Civil Procedure section 425.16,[1] the anti-SLAPP[2] statute.
Shack appeals, challenging the orders striking his two causes of action against four of the six defendants, namely, defendants and respondents IMG Worldwide, Inc. (IMG), Ladies Professional Golf Association (the LPGA), NBC Universal, Inc. (NBC), and Samsung Electronics America, Inc. (Samsung). Shack did not appeal from the order striking the same claims against a fifth defendant, Dan Beard, and this court has dismissed as untimely Shack's appeal from the order striking the claims against the sixth defendant, Bighorn Properties, Inc. (Bighorn). As to IMG and the LPGA, Shack's first amended complaint was stricken. As to NBC and Samsung, Shack's later-filed second amended complaint was stricken. The allegations of both complaints are substantially the same.

Defendants Sepheren Ferdinand Scorza, Tiawan Ferrizel Merriweather, and Tylin Ferrizel Merriweather[1] were convicted of various offenses related to a bank robbery that occurred in July 2007. Scorza was convicted of three counts of second degree robbery, attempted second degree robbery, assault, second degree commercial burglary, conspiracy, and dissuading a witness. Tylin and Tiawan were convicted of the same charges, except that Tylin was not convicted of assault, and Tiawan was not convicted of assault or dissuading a witness.

Defendant A.M. appeals from a judgment entered pursuant to Welfare and Institutions Code section 602. A petition was brought against A.M. alleging that he stole victim Rodrigo L.'s cell phone and displayed a pocketknife to Rodrigo when Rodrigo tried to recover the cell phone from A.M. After a bench trial, the trial court found true the allegations that A.M. committed one count of robbery and one count of using a deadly weapon, both for the benefit of, at the direction of, or in association with a criminal street gang. The court declared A.M. a ward of the court, placed him on probation, and placed him in the custody of his parents.
On appeal, A.M. challenges the sufficiency of the evidence to support the trial court's true findings that he was the individual who committed the offenses, and that a deadly weapon was used in the commission of robbery. A.M. asserts that because the victim testified only that A.M. looked "similar" to the person who stole his cell phone, there is insufficient evidence to support the court's finding that A.M. was the perpetrator of the crimes. He further argues that because the victim testified that he saw only the handle of a knife, there is insufficient evidence to establish that A.M. used a deadly weapon.
Court conclude that there is substantial evidence to support the trial court's findings. The victim clearly identified A.M. as the perpetrator on the night of the incident, and also testified that the object that the perpetrator displayed during the robbery was a pocketknife. Court therefore affirm the judgment of the trial court.

The juvenile dependency court entered orders setting a permanency planning hearing (Welf. & Inst. Code, § 366.26)[1] for March 14, 2011, involving Alana J., a dependent child of the court. Jared J. (Father) filed a petition for an extraordinary writ (Cal. Rules of Court, rule 8.452), and we issued an order to show cause. Having further reviewed the issues raised by Father's petition, we now deny his request for writ relief.

Trino Eredia appeals from an order denying his petition for a writ of error coram nobis. Court affirm

Plaintiff James David Bennett filed this lawsuit after he was convicted and sentenced to 121 months in federal prison for bank and wire fraud. He sued Flagstar Bank, one of the victims of his fraud, and Phillip Trevino, his court-appointed appellate attorney. Plaintiff now appeals from the trial court's denial of his motion for summary judgment and entry of summary judgment for Flagstar Bank. He also appeals from the trial court's order vacating entry of the default against defendant Trevino and sustaining Trevino's demurrer without leave to amend. Court affirm.

Pacific Environmental Resources Corporation (appellant), appeals from the grant of summary judgment in favor of defendant insurance brokers[1] in appellant's suit for professional negligence arising from its insurance brokers' failure to obtain insurance for appellant's participation in the construction of a wastewater treatment facility. Appellant alleged that its insurance broker obtained an insurance policy that failed to identify appellant as a named insured and did not require the insurer to defend appellant against any claim. The trial court granted summary judgment because the two-year statute of limitations of Code of Civil Procedure section 339(1) barred the action as untimely. We find that appellant discovered, or should have discovered, its brokers' negligence not later than October 16, 2006, and that appellant sustained damages more than two years before filing its complaint on November 20, 2008. We reject appellant's argument that the statutory limitations period was equitably tolled until a formal, written denial of coverage by the insurer, because the equitable tolling doctrine does not apply to insurance brokers, such as the defendants. Court affirm the grant of summary judgment on the ground that the statute of limitations barred the action.

Respondents B Five Corporation (B Five), Aris Sarigianides and Dimitrios Yortzidis brought an action to set aside two trust deeds under which appellant James G. Morris and Ha-Chun Ying Cheung (Cheung) acquired the sole asset of Micromark International, Inc. (Micromark), a commercial building located at 13651 Foothill Boulevard in Sylmar (hereafter the property). Cheung was the sole shareholder, officer and director of Micromark. After a trial to the bench, the court found that both deeds of trust were fraudulent transfers under the fraudulent conveyance statutes and decreed both instruments to be null and void. Morris appeals; Court affirm.

Respondents B Five Corporation (B Five), Aris Sarigianides and Dimitrios Yortzidis brought an action to set aside two trust deeds under which appellant James G. Morris and Ha-Chun Ying Cheung (Cheung) acquired the sole asset of Micromark International, Inc. (Micromark), a commercial building located at 13651 Foothill Boulevard in Sylmar (hereafter the property). Cheung was the sole shareholder, officer and director of Micromark. After a trial to the bench, the court found that both deeds of trust were fraudulent transfers under the fraudulent conveyance statutes and decreed both instruments to be null and void. Morris appeals; court affirm.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that in September 2008, appellant was a security guard employed by CM Security (CM) and assigned to Avalon Foods (Avalon) in Los Angeles. Avalon sold food to catering truck businesses, and the trucks were parked in Avalon's parking lot. Avalon had received complaints about appellant being too strict and dealing with persons inappropriately. Martin Lopez, the decedent, handled public relations at Avalon.
On September 19, 2008, Lopez told Lydia Alvarez, Avalon's vice-president, about a problem between appellant and Hector Contreras, one of the truck owners. Appellant had seen Contreras gambling at his truck. Avalon prohibited gambling and appellant reported the violation. However, Contreras objected to the way appellant had dealt with Contreras, and Contreras no longer wanted to do business with Avalon. On September 19, 2008, Alvarez contacted David Martinez, appellant's supervisor, and the matter was resolved.

Patrick Donald Evans appeals from the judgment entered following his convictions by jury on count 1 – second degree murder (Pen. Code, § 187)[1] and count 2 – attempted murder (§§ 664, 187) with findings as to each offense that he personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), and with findings as to each offense that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)) and the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). The court sentenced appellant to prison for 65 years to life, plus 17 years. Court affirm the judgment.