CA Unpub Decisions

Two sets of attorneys representing an estate did not object when a probate court ruled that the estate was entitled to double damages against a person who was in the midst of bankruptcy. After the probate court’s ruling was overturned as void for violating the bankruptcy court’s “automatic stay,” the estate sued the two sets of attorneys for malpractice. The trial court sustained a demurrer to the malpractice claim without leave to amend on the ground that it was brought too late. We agree with the trial court’s ruling and affirm.

Appellant Anthonia Washington filed this appeal after both the Labor Commissioner’s office and the Fresno Superior Court separately denied her claim for damages under the Labor Code resulting from her termination by respondent, Rite Aid. Appellant filed an initial appeal after the Labor Commissioner’s office denied her claim, resulting in a de novo trial at the Fresno Superior Court. Appellant now claims the trial court improperly denied her request for a discovery extension and asks this court to grant the extension and “reset the trial date.” For the reasons set forth below, we affirm the judgement against appellant.

The James M. and Frieda E. Montgomery Foundation (the Foundation) and members of the Montgomery family appeal from the judgment, entered after a court trial, finding that James F. Montgomery committed fraud and other torts when he convinced respondent Kenneth Sterling to invest in a bank he was attempting to open for business. Appellants contend (1) the trial court erred when it excluded all but one of their witnesses; (2) the fraud judgment is not supported by substantial evidence because Jim Montgomery’s representations to Sterling were true; (3) the causes of action for conversion and common counts should be reversed because Sterling had no ownership interest in the money transferred from the Bank to the Foundation; (4) the punitive damages award must be reversed because it violates public policy and is not supported by substantial evidence; and (5) there is no legal basis for the award of attorney’s fees and that the trial court allowed cost items prohibited by statute.

This is the fourth appeal filed by plaintiff Aslam Shaw stemming from his 2013 complaint that alleged a spectrum of wrongs against more than 25 defendants. We previously dismissed portions of plaintiff’s first three appeals as to the current defendants and affirmed the balance as to other defendants. (Shaw v. Nations Title Co. (April 24, 2015, B251553, consolidated with B252789 [nonpub. opn.] (Shaw I); Shaw v. Nations Title Co. (Sept. 3, 2015, B255799 [nonpub. opn.] (Shaw II).)
On September 22, 2015, the trial court signed an order of dismissal in favor of the current defendants─Nayyar Munir Afshar (Afshar); Siddiq Khawaja (Khawaja); La Palma Urgent Care (La Palma); Scanasar; and their attorneys, Richard M. Moss, III, and the Law Office of Richard M. Moss III (collectively, defendants). We affirm.

The Kern County District Attorney alleged in an April 1, 2014, information that appellant Patrick John Volkert be charged with the following five counts: possession of a controlled substance - methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 1), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) (count 2), unlawfully possessing ammunition (§ 30305, subd. (a)(1)) (count 3), the misdemeanor of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 4), and the misdemeanor of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364) (count 5).

Four-month-old Jane Doe suffered from shaken baby syndrome while in the care of defendant Joe Earl Steen, Doe’s biological father. Defendant appeals from judgment entered following a jury conviction for child abuse likely to cause great bodily harm (Pen. Code, § 273a, subd. (a) ; count 1). The jury also found true defendant personally inflicted great bodily injury (GBI) on Doe (§ 12022.7, subd. (d)). The trial court sentenced defendant to nine years in prison.
Defendant contends the trial court erred in denying his Batson/Wheeler motion as to the prosecution’s removal of prospective Juror G.C., who is an African American woman. Defendant also argues the trial court erroneously admitted evidence of three uncharged separate acts of domestic violence committed by defendant. We reject defendant’s contentions and affirm the judgment.

A jury convicted Gregory Allen Spani of possessing methamphetamine for sale in violation of Health and Safety Code section 11378. As part of his sentence, the court imposed a $50 criminal laboratory analysis fee (lab fee) under section 11372.5, subdivision (a), plus penalty assessments on that fee—bringing the total amount of the lab fee to $205.
Spani concedes the court properly assessed the $50 lab fee, but contends the court erred in concluding the penalty statutes applied to require an additional penalty on top of that fee. He raises no other issue on appeal.

Defendant Eduardo Guiterrez Solorzano appeals the trial court’s denial of his motion to vacate his 2013 felony conviction for transporting marijuana under former Health and Safety Code section 11360. (Unless otherwise set forth, statutory section references that follow are to the Health and Safety Code.) At the time of his plea, the statute prohibited transporting marijuana. (Former § 11360, subd. (a).) Subsequently, defendant sought to benefit from the retroactive application of a statutory amendment to section 11360 that required transportation for sale, rather than personal use (§ 11360, subd. (a)), and moved to vacate his felony conviction for transportation and have the trial court impose a misdemeanor sentence for possession of marijuana under section 11357, subdivision (c). The trial court denied the motion. We shall affirm the judgment.

The trial court found Edgar Gomez Ramirez guilty of felony resisting an executive officer (Pen. Code, § 69) and misdemeanor giving false information to a peace officer (§ 148.9, subd. (a)). The trial court also found Ramirez suffered one prior strike conviction within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.2, subds. (a)-(d).)
The trial court sentenced Ramirez to 16 months on the resisting count, doubled to 32 months for his prior strike. The court sentenced Ramirez to a concurrent 180 days on the false information count.

Anastacio Gonzalez Ramirez appeals his conviction by jury of two counts of unlawful act with a child 10 years old and under (Pen. Code, § 288.7, subd. (a); counts 1 and 2) and one count of continuous sexual abuse (§ 288.5, subd. (a); count 3). The trial court sentenced appellant to two consecutive terms of 25 years to life on the first two counts and to a consecutive determinate term of 12 years on count 3. Fines and fees were imposed and presentence credits were awarded.
The victim, M.R., was born in November 2001. Appellant is her biological father. At the time of the offenses, M.R. lived with appellant, her mother, C.N., and three siblings.

Defendant Fernando Ramirez Perez was charged by second amended information with 11 counts of sexual abuse committed against two minor victims, A.C. and C.E. The jury convicted defendant of all eight charged counts against A.C. as follows: Penal Code section 288.7, subdivision (a) (sexual intercourse or sodomy with a child under the age of 10 years) (count 1); section 261, subdivision (a)(2) (rape) (count 2); section 288, subdivision (a) (lewd or lascivious acts) (counts 3–7); and section 136.1, subdivision (b)(1) (dissuading a victim or witness) (count 8). The jury found true the enhancement attached to counts 1 and 2 for infliction of great bodily injury (GBI) (§ 12022.8) and the special circumstances allegation attached to count 2 pursuant to the One Strike law (§ 667.61, subd. (j)(1)). The jury was unable to reach a verdict on counts 9 through 11, which were lewd or lascivious act charges committed against victim C.E. (§ 288, subd. (a)), and it found not true the multiple

A jury found Jesus Nunez guilty of sexually abusing his daughter when she was between the ages of 12 and 14. On appeal, he claims the trial court erred by sustaining a prosecution objection during cross-examination of a rebuttal witness. We affirm the judgment.

Defendant Kenneth Lee McPherson contends the trial court erred in denying his Proposition 47 application for reduction of his felony petty theft conviction to a misdemeanor (application). The trial court denied defendant’s application on the ground he had a prior violent felony conviction punishable by life imprisonment, which the trial court concluded was a “super strike” under Proposition 47 (Pen. Code, §§ 1170.18, 667, subd. (e)(2)(C)(iv)(VIII) ). Defendant argues his prior robbery conviction is not a super strike because a robbery conviction is not subject to a life sentence on its own. Even though defendant received a life sentence for robbery, the sentence was based on the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). Defendant therefore asserts his prior robbery conviction does not bar him from relief under Proposition 47. We agree and reverse the order denying defendant’s application for reduction of his felony petty theft conviction to a misdemeanor.

Appointed counsel for defendant Manuel Ferlander Marichal asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We find errors that require modification of the judgment to include mandatory fees not imposed. We affirm the judgment as modified.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)