CA Unpub Decisions

A jury convicted defendant Ralph Corona of attempted forcible rape (Pen. Code, 261, subd. (a)(2), 664))[1]and assault with a deadly weapon ( 245, subd. (a)(1)), and found that defendant had personally used a deadly weapon in the commission of the offenses within the meaning of sections 12022.3, subdivision (a) and 12022, subdivision (b)(1), respectively. In the sanity phase of the proceedings, the jury found defendant legally sane when he committed the crimes.

A jury found defendant Louis Lockhart guilty of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1]and found he had inflicted great bodily injury ( 12022.7). On appeal, he contends the trial court violated his constitutional right to due process and to a jury trial when it altered the charges contained in the jury instructions during deliberations. Court affirm.

Desiree M. (mother), appeals from the dispositional orders of the juvenile court, removing her children T. and D. from her custody. She contends there was insufficient evidence to support these orders. Court disagree.

After pleading no contest to disturbing the peace by fighting (Pen. Code, 415, subd. (1))[1]and admitting the offense was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (d), the trial court placed defendant Ivan Alejandro Herrera on formal probation for three years and imposed numerous conditions of probation. The court ordered defendant to serve 180 days in county jail but stayed imposition to gauge defendants performance on probation. When defendant violated the terms of his probation, the court revoked defendants probation and sentenced him to two years in state prison. On appeal, defendant contends the trial court erred in imposing a duplicate restitution fine. Finding an error in the abstract of judgment, Court direct the trial court to amend the abstract of judgment but otherwise affirm the judgment.

In case No. CM025878, defendant Jack Albert Wallace pleaded no contest to possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and was placed on probation for three years under Proposition 36. In case No. CM026667, defendant pleaded guilty to child endangerment (Pen. Code, 273a, subd. (a))[1]and admitted having served a prior prison term ( 667.5, subd. (b)). In exchange, two related counts were dismissed. The trial court found that the plea constituted a probation violation in case No. CM025878. On appeal, defendant contends the trial courts recommendation for no visitation must be stricken as unauthorized and the abstract of judgment must be amended. Court affirm the judgment.

The juvenile court found that Walter P., then 17 years old, violated Health and Safety Code section 11357, subdivision (b), which provides as pertinent: (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). The juvenile court placed Walter on probation for six months. Over Walters objection, the court imposed as special conditions of probation that Walter be detained on home supervision for 45 days and that he be required to complete eight days in the Juvenile Work Project program. The judgment is modified by striking the probation conditions (and their effectuating language) that Walter must complete 45 days on the Home Supervision program and that he must participate in and complete 8 days in the Juvenile Work Project program. As modified, the judgment is affirmed.

Appellant Thomas Tighe appeals from two postjudgment orders entered in a marriage dissolution proceeding. Thomas[1]moved for a modification of his child support obligation. The matter was set to be heard by Commissioner Randall W. Magnuson, acting as a temporary judge. While that motion was pending, Thomas moved for a determination of child support arrears, claiming that he should be credited with certain payments he made for the children's medical care and maintenance of the marital house. Thomas's ex-wife, Ann Marie, filed a pleading that she referred to as a "companion motion" in which she raised a number of issues concerning expenses she had incurred that Thomas was supposed to pay, pursuant to the judgment. The court made rulings as to those motions on May 19, 2006, but did not sign a formal written order until September 25, 2006 (Reimbursement Order). That same day, the court also awarded Ann Marie attorney fees for fees incurred between the court's May 19 ruling and September 25 (Attorney Fee Order). Finally, Court reverse the commissioner's separate award of attorney fees to Ann Marie for work Ann Marie's attorney performed between May 19, 2006 and September 25, 2006, because Thomas was not provided notice that the commissioner would be considering that issue at the September 25 hearing and was not afforded the opportunity to be heard on the issue.

Appellant Guillermo Flores appeals from a judgment of conviction and sentence. A jury convicted Flores of attempted voluntary manslaughter, making a criminal threat, and assault on a peace officer. On appeal, Flores challenges his convictions on the ground that the trial court should have instructed the jury sua sponte regarding reasonable self-defense because, he contends, there was evidence from which the jury could have inferred that he acted in self-defense. Flores also challenges the trial court's decision to impose the upper term for his conviction for attempted voluntary manslaughter. Flores asserts that the trial court violated his right to a jury trial when the court relied on factors not found by the jury nor admitted by Flores in selecting the upper term.
Court conclude that Flores was not entitled to a self-defense instruction because that defense is inconsistent with Flores's theory of the case, and because there was no evidence from which one could reasonably have inferred that Flores was justified in committing any of the offenses on the ground that he was acting in self-defense. Court also conclude that the trial court did not violate Flores's right to a jury trial in selecting an upper term sentence. In selecting the upper term, the trial court relied on at least one aggravating factor that independently satisfies the requirements of the Sixth Amendment.

The underlying class action lawsuit was brought by investors who lost substantial sums of money when investments selected by them and purchased on their behalf by Sterling Trust Company (Sterling) for placement into their self-directed individual retirement accounts, proved to be worthless. The investors sued Sterling for breach of contract, breach of fiduciary duty, and related causes of action, contending that Sterling breached fiduciary and contractual duties owed to them by failing to perform a proper administrative review of the selected investments which, but for Sterlings breach of duty, would not have been purchased. The trial court entered judgment in Sterlings favor upon its motion for summary adjudication, and the investors appealed. Court agree with the trial courts conclusion that Sterling owed no duty to the investors to conduct an administrative review in a manner to insure the viability or safety of the investments and thus affirm the judgment.

Defendant Vanessa Dawn Tenorio contends the trial court violated her right to due process by revoking her probation and imposing a prison term without notice and an opportunity to be heard. Alternatively, defendant claims her counsel was ineffective under the Sixth Amendment to the United States Constitution because he did not object on a timely basis when the alleged errors occurred. She also contends the trial court erroneously imposed an upper term sentence without stating any reasons and violated her constitutional right to a jury trial by imposing an aggravated sentence based on facts that were not found true by a jury. Defendants claims involve four different cases that have been consolidated for purposes of this appeal.
The judgment is affirmed.

Plaintiff Michael Freeman leased an apartment in Riverside from defendant Windemere at Sycamore Highlands, LLC (Windemere). In his first cause of action, he alleges that Windemere engaged in seven specified business practices that violated the unfair competition law (UCL) (Bus. & Prof. Code, 17200). In his second cause of action, he alleges that Windemere violated the Consumer Legal Remedies Act (CLRA) (Civ. Code, 1750 et seq.). Freeman further alleges that defendants United Dominion Realty Trust, Inc. (UDR), UDR California Properties, LLC (UDRC), and UDR Western Residential, Inc. (UDRW) are agents and alter egos of Windemere, and vice versa, so that if Windemere is liable under the UCL or the CLRA, they are equally liable.
Court conclude that there was at least a triable issue of fact with respect to whether one out of the seven alleged business practices violated the UCL. Court also conclude that defendants were not entitled to attorney fees against Freeman because his CLRA claim was in good faith, even though ultimately it lacked merit. Otherwise, however, we will affirm.

A jury found defendant guilty of second degree commercial burglary. (Pen. Code, 459.) Defendant admitted suffering three prior convictions that resulted in prison terms. ( 667.5, subd. (b).) The court sentenced defendant to state prison for a term of five years. Defendant contends the court erred by failing to inform defendant of his Boykin-Tahl[2]rights prior to accepting defendants admissions concerning the prior offense enhancements. Court affirm the judgment.

Appellant David P. Simon (David) appeals from certain portions of the trial courts family law judgment on reserved issues. First, David challenges the portion of the judgment making its award of permanent spousal support to respondent Vikki L. Simon (Vikki) effective the first day of trial (November 16, 2004), rather than the date judgment was entered (March 8, 2007). Second, David challenges the trial courts decision to make the increase in child support effective just after the date he filed his order to show cause to modify (decrease) child support (September 1, 2002), rather than the date judgment was entered (March 8, 2007). Third, David challenges the award of interest on the retroactive payments of spousal support. As discussed below, we affirm the judgment but reverse as to the award of interest on the retroactive installments of spousal support. The judgment of the trial court is affirmed.

Appellant Dominga Olguin (wife) appeals from a ruling granting the motion of respondent, Jose Luis Olguin (husband), to enforce a stipulated judgment dividing the marital property. Court affirm.