CA Unpub Decisions

Defendant Alejandro Casillas Villa entered a negotiated plea of guilty to felony evading (Veh. Code, 2800.2, subd. (a)--count one) and no contest to carrying a loaded firearm, a misdemeanor (Pen. Code, 12031, subd. (a)(2)(F)--count three)[1]and driving with a blood alcohol content of .08 percent or more, a misdemeanor (Veh. Code, 23152, subd. (b)--count five). In exchange, the remaining counts (count two, carrying a concealed firearm ( 12025, subd. (b)(6)) and count four, resisting a peace officer ( 148, subd. (a)(1)) were dismissed with a Harveywaiver. In accordance with the plea agreement, the trial court suspended imposition of sentence and granted defendant probation for a term of five years subject to certain terms and conditions, including 240 days in county jail and gang offender registration pursuant to section 186.30.
Defendant appeals. The trial court granted defendants request for a certificate of probable cause. ( 1237.5.) Defendant contends (1) insufficient evidence supports imposition of the gang offender registration requirement and (2) the registration requirement violates the plea bargain. Court agree with both contentions, reverse the registration requirement and remand for further proceedings.

Civic Plaza Properties II (Civic Plaza) appeals from a summary judgment in favor of Cary Sarnoff. Civic Plaza contends the court applied the wrong statute of limitations and its waste claim against Sarnoff is still viable. Court conclude the trial court properly granted the summary judgment, and Court affirm the judgment.

Plaintiff Sierra Club sued defendant City of Orange and its city council (defendant) for certifying a combined supplemental environmental impact report and environmental impact report (SEIR/EIR) and approving land use development proposals for projects sought by real parties in interest The Irvine Company LLC and Irvine Community Development LLC (collectively Irvine) on the ground defendants actions violated the California Environmental Quality Act (CEQA). (Pub. Resources Code, 21000 et seq.; all further statutory references are to the Public Resources Code unless otherwise indicated.) Although rejecting Irvines request to dismiss the action for failure to timely file it, the trial court entered judgment denying the petition. (Code Civ. Proc., 1094.) Plaintiff appeals, contending the SEIR/EIR violates CEQA by failing to: (1) Disclose the projects proposed annexation boundaries; (2) evaluate the environmental effects of the project as a whole; and (3) provide an adequate and complete analysis of the projects water quality impacts, traffic impacts, and potentially feasible project alternatives. Irvine repeats its claim this action is barred by the statute of limitations. While Court reject Irvines statute of limitations claim, Court nonetheless affirm the judgment.

After George and Esther Shore lost their home through foreclosure, they sued John Needham, the beneficiary of the Daybreak Court Trust #1045 (Daybreak), which bought their condominium, and Possess the Land, Inc. (PTL), the corporate trustee, for converting personal property they left at the residence. A jury awarded Esther[1]$3,000 in damages against Needham, but rejected claims of elder abuse and negligent infliction of emotional abuse. The jury also found in favor of PTL, rejecting a claim that Needham acted as the trustees agent. The court awarded the trustee $3,600 in court costs. Plaintiffs argue reversal is required because the special verdict failed to direct the jury to determine whether George was entitled to damages for conversion. Plaintiffs also complain the verdicts on conversion and elder abuse are inconsistent, and challenge the sufficiency of the evidence to support the jurys verdict rejecting their claim Needham acted as an agent for the trust and Esthers emotional distress cause of action. Finally, plaintiffs argue the court erred by excluding a police report and removing the table of contents from plaintiffs exhibit book before giving it to the jury. Finding no basis to overturn the judgment, Court affirm.

A jury convicted Lenin Jimenez Campos of second degree vehicle burglary (Pen. Code, 459; 460, subd. (b); all statutory references are to this code, unless otherwise noted), receiving stolen property ( 496, subd. (a)), and misdemeanor driving without a license (Veh. Code, 12500.) Defendant contends the trial court erred in admitting statements in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and abused its discretion by denying his mistrial motion after a prosecution witness disclosed defendant had been fired from his job for drug use. He also challenges the sufficiency of the evidence to support the vehicle burglary conviction. Court affirm.

Joseph Patrick Graham (Joseph) and Daniel Stephen Graham (Daniel) appeal from the judgment sending them to prison for seven and two years, respectively. This judgment followed a jury trial in which they were found guilty of robbing Lillian Varela, of committing a commercial burglary of a Ralphs grocery store, and of stealing from Carlos Rubio, as a lesser included offense of the actual charge, robbery. Although the two brothers admitted Daniel had a prior prison term, and Joseph had previously been convicted of a strike and a serious felony, the sentencing court struck the prior convictions for sentencing purposes, excepting only Josephs prior serious felony which carried a five-year mandatory enhancement. (See Pen. Code, 211, 212.5, 459, 460, 667, 667.5, 1170.12.)
On appeal, Joseph contends the term for the commercial burglary should have been stayed pursuant to Penal Code section 654. He also contends the evidence was insufficient to support the conviction for robbery of Varela, and the court misinformed the jury as to the elements of robbery. Daniel joins in the arguments to stay the burglary term and to attack the sufficiency of evidence for robbery, but then brings several additional grounds as instructional error to that raised by Joseph. In a supplemental brief, Daniel augments his arguments by also contending that the petty theft of Rubio should have been dismissed as a lesser included offense to the robbery of Varela. Joseph joined in these latter arguments. Court affirm.

Dee R. Bangerter appeals from a postjudgment order that denied his motion for attorney fees, after he prevailed on a prior appeal in which we reversed a fee award for Wells Fargo Bank Minnesota, National Association (Wells Fargo). Bangerter argues he was entitled to fees under Civil Code section 1717 (section 1717). Court disagree and affirm.

Plaintiff and cross-defendant Primetech Corporation (Primetech), and cross-defendants Robert Prestwood (Prestwood), Colleen Prestwood, and Lauren Financial Services, Inc., challenge the judgment entered after a bench trial on Primetechs complaint and the cross-complaint of defendant and cross-complainant Jonathan S. Cohen. Primetech contends the trial court erred in granting nonsuit on its cause of action for breach of loyalty and in limiting the damage award on its other causes of action to $10,000, despite the opinion of its expert witness that it suffered damages of $1.7 million. Cross-defendants contend the trial court erred in awarding Cohen $230,000 on his cross-complaint, asserting the amount was not supported by substantial evidence. We conclude that even if the trial court erred in granting nonsuit, Primetech was not prejudiced because the trial courts factual findings in its statement of decision preclude any recovery on the breach of duty claim. The trial court also did not err in limiting Primetechs damages because it was not required to accept the opinion of Primetechs expert, and had a reasonable basis for rejecting much of his testimony. Finally, we conclude cross-defendants waived any claim that the award to Cohen was unsupported by substantial evidence because in their appellate briefs they failed to fairly summarize all of the material evidence admitted at trial on the issue, or include in the record any of the numerous exhibits supporting that award. Accordingly, Court affirm the judgment.

I

A jury found Curicaveri Gomez Aguirre guilty of committing a lewd act on a child under the age of 14. (Pen. Code, 288, subd. (a).) He challenges the sufficiency of the evidence to support his conviction and complains the jury instruction on reasonable doubt was flawed. Neither contention has merit, and Court therefore affirm the judgment.

Defendant N. A. admitted to violating Health and Safety Code sections 11359 and 11360, subdivision (a) (possession of marijuana for sale and sale or transportation of marijuana) and was declared a ward of the court. The prosecutor determined defendant was eligible for deferred entry of judgment pursuant to Welfare and Institutions Code section 790. The probation officer recommended against deferred entry of judgment. The court failed to conduct a hearing to determine whether judgment should be deferred and placed defendant on probation. If the prosecuting attorney finds that the minor meets the eligibility requirement for deferred entry of judgment, the court has a mandatory . . . duty . . . to either summarily grant [deferred entry of judgment] or examine the record, conduct a hearing, and make the final determination regarding education, treatment and rehabilitation . . . . [Citations.] (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)
The Attorney General concedes that the court abused its discretion in failing to conduct the required hearing. Court therefore remand this case to the juvenile court to examine the record and conduct the required hearing to determine whether entry of judgment should be deferred.

Brandy B. (mother) appeals from an order of the juvenile court terminating her parental rights to Haley R. (age 6) and Summer R. (age 2). (See Welf. & Inst. Code, 366.26 (.26 hearing); all statutory references are to this code.) She contends the court erred in denying her request for a continuance and by declining to apply the statutory exception to termination of parental rights where a strong parent-child bond exists. ( 366.26, subd. (c)(1)(B)(i).) For the reasons discussed below,Court affirm.

Orange County Social Services (SSA) filed a petition in the juvenile court citing Welfare and Institutions Code section 300. (Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.) The alleged facts supporting the allegations under section 300, subdivision (a) of the interlineated pleading in the record are: a-1. The child Joseph reported that, [o]n or about July 2, 2007, the child, Joseph, was kicked by his mother, E. [G.], resulting in an approximate four to five inch bruise on the childs right thigh, thereby causing the child to suffer physical pain. The mother denies this incident occurred. [] a-2. The child Joseph reported [o]n numerous unspecified dates, the childrens mother struck the child, Joseph, with various household objects, to include, but not limited to, coat hangers, shoes and a belt. The mother denies ever striking the child with objects. The mother filed her own notice of appeal. In it she states: Im appealing the outcome of the last hearing on August 22, 2007. I believe I wasnt explain correctly what a no contest plea meant, and after doing research after the hearing took place, I would like a jury to hear all the evidence in order for me to clear my name on all charges. Now represented by counsel, she argues in her appellate brief that the juvenile courts jurisdictional findings and orders must be reversed because substantial evidence does not support the courts findings that the children are at risk as described in section 300, subdivisions (a) and/or (b).
The jurisdictional and dispositional findings and orders of the juvenile court are affirmed.

Court reverse termination of the parental rights of Nathan M. to three-year-old Melanie S. for failure to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; ICWA). Father contends SSA did not properly comply with the notice provisions of ICWA. SSA concedes there were some deficiencies.

Zachary M. appeals from the juvenile courts jurisdictional and dispositional orders concerning Jay J., who is now 10 months old. Orange County Social Services Agency (SSA) alleged Zachary was Jays father. The juvenile court sustained jurisdiction over Jay because his mother and Zachary faced unresolved problems with methamphetamine, neither protected Jay from the others substance abuse, and neither arranged suitable care for Jay upon incarceration. (Welf. & Inst. Code, 300, subds. (b) & (g); all further undesignated section references are to this code, unless otherwise noted.) Based on postjudgment DNA evidence showing he is not Jays father, Zachary asks that the allegations the juvenile court sustained concerning him be stricken. SSA similarly requests that we take judicial notice the juvenile court has granted SSAs modification petition ( 388) to strike Zachary from the original dependency petition and substitute an amended petition naming only Jays mother, not Zachary. Court grant SSAs request for judicial notice. (Evid. Code, 452, 459.) Because the section 388 petition demonstrates Zachary has obtained the relief he sought on appeal, his appeal is moot and Court therefore dismiss it.