CA Unpub Decisions

Following a contested jurisdictional hearing, the juvenile court sustained a charge of misdemeanor battery against D.A., the minor. The minor was declared a ward of the juvenile court and placed in her mothers home under the supervision of the probation officer. The court also imposed a restitution fine of $25. On appeal, the minor contends the restitution fine must be reversed and the matter remanded for a new hearing on the fine because the court failed to exercise informed discretion in imposing the fine. As a backup argument, the minor contends that if we find her counsels failure to object to the amount of the fine forfeits the issue for appeal, then she received ineffective assistance of counsel.
The People contend the minors failure to object forfeits the issue. The People also contend that the minor cannot show ineffective assistance of counsel because (1) the court exercised its discretion by reducing the fine; (2) counsels failure to object is explainable as a tactical decision; and (3) it is not reasonably likely that, had counsel objected, she would have received a more beneficial result. Court reduce the fine to one dollar ($1).

Driving at 64 miles per hour around a curve posted at 35 miles per hour, defendant Tracy Ann Jenkins lost control of a dune buggy and crashed. Her passenger, a hitchhiker, sustained a broken arm, a concussion and a bruised chest. Defendant, who had a blood-alcohol content of .32 percent, sustained a broken arm, a concussion and a punctured lung. Defendant pleaded no contest to driving under the influence causing injury to her passenger, a felony (Veh. Code, 23153, subd. (a)) in exchange for dismissal of the remaining count and the prosecutors agreement not to oppose reduction to a misdemeanor upon defendants successful completion of probation.
The court suspended imposition of sentence and granted probation subject to certain terms and conditions, including serving 120 days in county jail and refraining from the consumption of alcohol. The judgment is affirmed.

A jury convicted Jessie Emanuel Ellison of three counts of robbery (Pen. Code,[1] 211); three counts of assault with a firearm ( 245, subd. (a)(2)); three counts of making a criminal threat ( 422); and three counts of false imprisonment by violence, menace, fraud, and deceit ( 236, 237, subd. (a)). Additionally, the jury found true special allegations that Ellison personally used a firearm in the commission of the robbery ( 12022.53, subd. (b)) and "engaged in the tying, binding, or confining of" the victims of the robbery ( 1170.84). The trial court sentenced Ellison to 15 years in prison. Ellison appeals, asserting that his convictions must be reversed on two grounds. First, he argues that the trial court erred by admitting evidence regarding the circumstances of his termination from the store that was robbed. Second, Ellison contends that the trial court erred by limiting a defense expert witness's testimony regarding erroneous eyewitness identifications in other criminal cases. As discussed below, Court find these contentions to be without merit, and affirm.

Mark Elder appeals from a judgment convicting him of first degree murder. He argues the trial court erred in: (1) denying his request for a continuance following its ruling admitting uncharged offense evidence; (2) admitting the uncharged offense evidence under Evidence Code sections 1108 and 1101, subdivision (b); and (3) denying his request for a mistrial based on the prosecutor's comment on his silence after being given Miranda[2]warnings. With one exception, we reject his contentions of error. We hold the court erred in admitting the uncharged offense evidence under section 1108, but find the error harmless because the evidence was admissible under section 1101, subdivision (b). Elder also argues the trial court's imposition of a restitution fine under Penal Code section 1202.45 violated the constitutional prohibition against ex post facto laws. The Attorney General properly concedes this error. Accordingly, Court modify the judgment to strike this restitution fine. As so modified, Court affirm the judgment.

Thomas Lennon, a court-appointed receiver, appeals from an order awarding him compensation for his services. The court appointed Lennon to serve as a receiver in an action to dissolve two business entities. After the receivership was completed, the court ordered one of the entities to pay $122,500 for the receiver's services, and ordered the other entity to pay $10,027.50 for the services. The court also ordered the entities to pay approximately $62,000 for the receiver's attorney fees. On appeal, Lennon contends: (1) the court erred in refusing to order one of the entities to pay all of his fees and attorney fees even though the fees related solely to work for the other business entity; and (2) the court erred in refusing to order the individual parties to pay for the receiver fees and attorney fees. Court find no abuse of discretion, and affirm.

Christopher Luevano was convicted by a jury of mayhem (Pen. Code,[1] 203), with true findings that he used a deadly weapon ( 12022, subd. (b)(1) & 1192.7, subd. (c)(23)); assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), with true findings that he inflicted great bodily injury under sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8), and that he used a deadly weapon within the meaning of section 1192.7, subdivision (c)(23); and petty theft with a prior theft conviction ( 484 & 666). Luevano admitted two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and two serious/violent prior felony convictions within the meaning of section 667, subdivisions (b) through (i). Luevano also admitted a prior theft conviction within the meaning of section 666.Luevano appeals contending the trial court's denial of his request to reopen the case prior to closing arguments was an abuse of discretion that denied him his Sixth Amendment right to confront a witness. Court find no error and affirm.

Masoud Tebbi and Shahrzad Tebbi (appellants), representing themselves in propria persona, appeal from a summary judgment entered against them in their lawsuit against Stephen R. Rose, Charlene D. Rose, 1st Monterey Financial & Property Group, Ed Fontes, and Attorneys Trustee Services (collectively, respondents). As Court explain, Court conclude that the appeal is without merit, and accordingly, Court affirm.

Jordan Ziebarth was charged with carrying a concealed firearm while an active participant in a criminal street gang. (Pen. Code, 12025, subds. (a)(1) & (b)(3).) Following the denial of his motion to suppress evidence under section 1538.5, Ziebarth entered a guilty plea and admitted the street gang allegation. He was granted probation on various conditions including 365 days in local custody. Ziebarth appeals contending the trial court erred in denying his motion to suppress evidence on Fourth Amendment grounds. Court find no error and affirm.

A jury convicted Andrew Ryan Merkel of receiving stolen property (Pen. Code, 496, subd. (a)) and giving a false identification to a peace officer ( 148.9, subd. (a)). In a bifurcated proceeding, Merkel admitted that he had previously served a term in prison ( 667.5, subd. (b)). The trial court sentenced Merkel to a three year prison term.

The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging Carlos R. committed the following offenses: assault with force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)); battery resulting in the infliction of serious bodily injury ( 243, subd. (d)) and misdemeanor battery ( 242). In connection with the assault count, the court also found true allegations that Carlos personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The court continued Carlos as a ward of the court and committed him to the Breaking Cycles program for 150 days. The judgment is affirmed.

Defendant Anthony Frederick Favano appeals from judgment entered following jury convictions for forgery by uttering or passing a fictitious or altered check (Pen. Code, 476[1]; count 1); forgery by possession or receipt of forged, altered or counterfeit items ( 475, subd. (a); count 2); receiving stolen property ( 496, subd. (a); count 3); and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a); count 4). The trial court sentenced defendant to five years four months in state prison. Defendant contends his conviction for count 2, forgery by possession of a forged check (forgery by possession), must be vacated because it is a necessary lesser included offense of defendants conviction for forgery by uttering or passing a fictitious check (forgery by uttering). Defendant also asserts that imposition of consecutive sentencing on counts 3 and 4 violated Cunningham v. California (2007) U.S. , 127 S.Ct. 856, 860 (Cunningham).
Court reject defendants contentions and affirm the judgment.

A jury convicted defendant of five sexual offenses against S.M., his stepdaughter: two counts of lewd acts upon a child ( 288, subd. (b)(1)); two counts of aggravated sexual assault ( 269, subd. (a)(5)); and one count of rape ( 269, subd. (a)(1)). The court sentenced defendant to 12 years plus 45 years to life in state prison.
On appeal, defendant argues the trial court erred by excluding exculpatory impeachment evidence. Defendant also challenges his convictions on counts 1 and 2. Court reject his contentions and affirm the judgment.

Plaintiff Sun Uk Hong (Hong) appeals from an order sustaining a demurrer without leave to amend and judgment of dismissal in favor of the subsequent purchasers (the Glenwood defendants) of an adjoining parcel of commercial property. Hong purchased a parcel (Parcel 1) in a commercial development in Murrieta, California, from three limited liability companies (the DKN defendants) who held title as tenants in common. One of these companies (one of the Margarita Ville sellers) also owned an interest in an adjoining parcel (Parcel 7). During presale negotiations, a representative of the DKN defendants orally promised to convey an easement for additional parking on Parcel 7. Hong needed the additional parking spaces to obtain the necessary permits for construction of a large commercial structure on Parcel 1.
No easement was conveyed and that agreement was not written, although the purchase agreement relating to Parcel 1 was subsequently written and executed. Approximately six months after escrow closed on the purchase of Parcel 1, the Margarita Ville sellers, which held title to Parcel 7, sold Parcel 7 to the Glenwood defendants. Unable to enforce the oral promise of the parking easement, Hong sued. The Glenwood defendants demurred to the causes of action of the second amended complaint seeking specific performance of the oral agreement to convey the easement and to quiet title. The demurrer was sustained without leave to amend and the action was dismissed as to the Glenwood defendants. The judgment is affirmed in its entirety.

Defendant Jimmy Lee Robinson stabbed his wifes ex-boyfriend to death and was convicted of first degree murder. His defense at trial was that he was defending himself and his wife or was provoked. On appeal, he argues that (1) the court instructed the jury erroneously on the circumstances under which provocation can reduce the degree of murder from first to second; (2) the court erred in failing to instruct the jury on involuntary manslaughter on its own motion; and (3) the court erred in excluding evidence that the victim had been convicted of making a criminal threat. Court affirm.