CA Unpub Decisions

Defendant and appellant Shane R. Tommer appeals after the trial court granted restraining orders requiring defendant to stay away from plaintiff and respondent Tracy Auld. Court affirm the orders.

This is a second appeal by defendant and appellant Frank Torrez, Jr. Defendant was originally convicted of being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and petty theft with a prior theft-related conviction (Pen. Code, §§ 484/666). Additionally, in a bifurcated proceeding, the trial court found true that defendant had sustained one prior strike conviction (§§ 667, subds. (c)-(i), 1170.12, subd. (c)(1)), one prior serious felony conviction (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 13 years 4 months in state prison. (People v. Torrez (November 30, 2009, E046611 [nonpub. opn.] (Torrez I).)
In his first appeal, defendant claimed there was insufficient evidence to support his conviction for being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a)). (Torrez I, supra.) We agreed, reversed defendant's conviction for being an active gang member, and remanded the matter for resentencing. (Ibid.)
On remand, the trial court sentenced defendant to a total term of seven years in state prison as follows: the middle term of two years for the petty theft with a prior conviction doubled to four years due to the prior strike, plus three consecutive one-year terms for the prior prison terms. Defendant appeals from the judgment. Court affirm.

Appellants Kay K. Hada, Shizuye Hada (the Hadas), and the City of Dinuba (the City) contend the trial court erred in granting summary judgment for Terrance Barnes (Barnes), individually and doing business as Barnes Realty, on his causes of action for breach of contract and breach of implied covenant of good faith and fair dealing. We agree and reverse the judgment.

Appellant, Joshua Jason Rangel, pled no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a))[1] and admitted an enhancement allegation that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of four years, consisting of the three-year midterm on the substantive offense and one year on the prior prison term enhancement, and initially awarded appellant 172 days of presentence credit, consisting of 115 days of actual time credit and 57 days of conduct credit. Thereafter, appellant moved for an order correcting the presentence credit award. After briefing was completed in the instant appeal, the court granted the motion, awarding appellant 174 days of presentence credit, consisting of 116 days of actual time credit and 58 days of conduct credit. On appeal, appellant contends he is entitled to additional conduct credit under a recent amendment to section 4019. Court will affirm.

On March 20, 2009, the Tuolumne County District Attorney charged defendant with felony hit-and-run causing injury (Veh. Code § 20001;[1] count I), misdemeanor driving under the influence of alcohol or drugs (§ 23152, subd. (a); count II), and misdemeanor hit-and-run causing property damage (§ 20002, subd. (a)(1) & (2); count III). The jury found defendant guilty on counts I and III. The trial court granted defendant probation.

Appellant filed suit in Fresno County alleging fraud, breach of contract, perjury, and embezzlement against respondent. Respondent moved to change venue to Santa Clara County. The court granted the motion. Court will affirm.

In 2004, plaintiff Randy Morris, doing business as Morris Design Partners, entered into agreements to purchase two adjacent parcels of real property in Capistrano Beach. Defendant Chicago Title Company (Chicago Title) accepted its designation as escrow holder for both transactions. In a three‑part assignment agreement, Morris thereafter agreed to assign his right to purchase the properties to RDH Group Development Partners (RDH), conditioned on, inter alia, RDH's agreement to provide Morris a $2 million promissory note (the note) and a trust deed securing its obligation on the note (the trust deed). RDH's obligation to provide the note and the trust deed was not included in any escrow instruction prepared for the transactions.

Plaintiff and appellant Winly Mallard, while represented by her attorney, objector and appellant William A. Kent, filed a verified complaint against her insurer, defendant Progressive Choice Insurance Company (Progressive), alleging Progressive wrongfully failed to pay certain medical expenses under an automobile policy it issued to her. Progressive propounded requests for admission to Mallard, requesting, inter alia, she admit that Progressive made certain medical payments under the policy; Mallard denied each of the requests.

As part of a guilty plea, defendant Jessica Yesenia Reyes admitted that she personally used a firearm in the commission of a robbery. Over the People's objection, the court struck a Penal Code section 12022.53 firearm enhancement for sentencing purposes, and sentenced defendant to three years in state prison. The People appeal, contending the court violated section 12022.53, subdivisions (b) and (h), when it struck the enhancement. Court agree and reverse.

R.H. (mother) appeals from the court's order granting joint legal custody over four-year-old T.Y. to mother and Terrance Y. (father), physical custody to father, and visitation to mother. Mother contends the court abused its discretion by denying her Welfare and Institutions Code section 388 petition without an evidentiary hearing, by making exit orders and terminating dependency jurisdiction over T.Y. without a contested review hearing, and by failing to relieve T.Y.'s counsel for a conflict in representation. Court affirm the order.

M.W., then 23 months old, died as the result of blunt force trauma to her head and torso, while in the care of her mother, L.W. (mother). M.'s three siblings, R.W., G.W., and N.W., were taken into protective custody immediately after her death. The juvenile court sustained allegations of threat of serious physical harm, failure to protect, severe physical abuse to a child under five years old, causing another child's death through abuse or neglect, and cruelty, and declared R., G., and N. to be dependents of the court. The court later determined that reunification services need not be provided to mother or her husband, D.W., the children's father (father). Mother and father filed petitions for a writ of mandate to challenge the juvenile court's orders.

Bobby Martin Gonzales appeals from a judgment of conviction of second degree murder (Pen. Code, § 187)[1] pursuant to a plea bargain. Appellant was sentenced to 15 years to life for the murder followed by a consecutive 10-year term imposed on the admitted enhancement allegation for personal use of a firearm (§ 12022.5, subd. (a)). Appellant obtained a certificate of probable cause.
In this second appeal,[2] he asserts that the trial court abused its discretion in denying his motion to withdraw his plea because his defense counsel never properly advised him of the consequences of the plea and there was evidence he suffered from ADHD. He also argues that the trial court's failure to hear relevant evidence regarding his ADHD treatment at the time of the motion requires reversal. Court affirm.

Defendant Laszlo Joseph Papp appeals from a conviction for possessing methamphetamine. The crime allegedly occurred in the same county courthouse in which he was tried. He claims that the trial court abused its discretion in allowing the jury to hear that his prior visit to the courthouse was for criminal proceedings against him. He also claims that the court improperly permitted the introduction of inadmissible lay opinion evidence and that the prosecutor committed misconduct by, in defendant's view, commenting on his failure to testify. In addition, he argues that the trial was unfair and worked a miscarriage of justice under all the circumstances. Court disagree throughout and will affirm the judgment.

Defendant Josephus Stallworth appeals from convictions of sexual offenses on the ground that the police obtained the supporting evidence in violation of the Fourth Amendment to the United States Constitution. He also claims that under a new law he is entitled to additional temporal credit against his term of confinement. Court disagree and will affirm the judgment.