CA Unpub Decisions

Gina Martin Romano, a beneficiary under the Dean Martin Family Trust (Trust), challenges an order approving a written settlement agreement between the Trust’s co-trustees, Laura Lizer and Joel McCabe Smith (collectively, Trustees), and some of the other Trust beneficiaries (collectively, Settling Beneficiaries). Among other things, Romano contends the order unlawfully modifies the Trust by eliminating provisions (1) mandating that the share of each beneficiary “shall be held in a separate trust,” and (2) directing a successor trustee to take action “to obtain redress for breach of trust” by a prior trustee upon a beneficiary’s written request. Because the record establishes the settlement did not satisfy the statutory prerequisites for modification of an irrevocable trust, the trial court abused its discretion by ordering the modifications. (See Prob. Code, §§ 15403, 15409.) We reverse.

Plaintiff Maria Mejia (Mejia) sued defendants Bank of America, N.A. (Bank of America) and ReconTrust Company, N.A. (ReconTrust) (collectively, defendants) for a variety of claims arising out of the foreclosure and sale of Mejia’s residential property. The trial court granted summary judgment for defendants, concluding that Mejia’s earlier chapter 7 bankruptcy proceeding transferred the claims from Mejia to her bankruptcy estate by operation of law, and thus Mejia lacked standing to pursue the claims. On appeal, Mejia contends she had standing to sue defendants, the trial court was precluded by our opinion in Mejia’s prior appeal from granting summary judgment for defendants, and she should have been permitted to amend her complaint. We conclude summary judgment was properly granted and the trial court did not abuse its discretion in denying leave to amend the complaint. We therefore will affirm the judgment.

Koeppel Hall appeals from an order denying his petition for resentencing under Penal Code section 1170.95. In April 2020, we affirmed the order in an unpublished opinion. (People v. Hall, Apr. 29, 2020, B302462.) The Supreme Court granted review and, in February 2022, transferred the matter to this court with directions to reconsider the cause in light of its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the enactment of Senate Bill No. 775 (Reg. Sess. 2021−2022) (Stats. 2021, ch. 551) (Senate Bill No. 775). We have done so and, for the reasons set forth below, again affirm the order denying Hall’s petition for resentencing.

Appellant Flemin Fernando Martinez was tried before a jury and convicted of multiple sexual offenses against four separate child victims. He contends that detectives were erroneously allowed to testify that although appellant had made several incriminating statements during a police interview concerning his sexual contact with one of the victims, he was not telling the whole truth because he denied having intercourse. Appellant argues that this amounted to an improper lay opinion regarding his truthfulness and his guilt of the one of the charges, which requires the reversal of at least one of the counts. We question whether this issue was adequately preserved, but in any event, any error was clearly harmless. We affirm.

Defendants and appellants Nimer Massis, Jennifer Nushwat (collectively, Sellers) and George Wynns appeal an order denying in part their anti-SLAPP motion seeking to strike the complaint of plaintiffs and respondents Treasa Gavin, Patrick Gavin, and John Gavin (collectively, Buyers). The relevant causes of action are the first cause of action for fraudulent concealment, the second cause of action for fraudulent misrepresentation, and the third cause of action for fraudulent inducement.
We affirm the trial court’s order denying in part Sellers’ anti-SLAPP motion.

Defendant Donald Wayne Carrillo pled no contest to two counts of forcible lewd acts upon four-year-old Jane Doe with substantial sexual conduct, and one count of oral copulation. The trial court sentenced Carrillo to 22 years in prison and ordered a total of $231,554.96 in direct restitution: $31,554.96 for economic losses to Doe’s parents; $150,000 in noneconomic losses to Doe; and $50,000 in noneconomic losses to Doe’s parents. The trial court also issued a 10-year criminal protective order that included both Doe and her parents.
On appeal, Carrillo challenges the restitution and protective order by arguing (1) Penal Code section 1202.4 does not authorize noneconomic restitution to Doe’s parents; (2) the noneconomic restitution to both Doe and her parents was not supported by a rational basis; and (3) section 136.2 does not authorize the issuance of a criminal protective order as to Doe’s parents. We affirm.

A jury convicted defendant Wayne Jerome Johnson of stalking, domestic violence, and assault with a deadly weapon. On appeal, defendant contends his due process rights were violated by the admission of evidence regarding a restraining order against him, and the convictions for assault with a deadly weapon and related domestic violence charge and his stalking in violation of a restraining order conviction were not supported by substantial evidence. He further asserts he received ineffective assistance of counsel and contends his conviction for stalking in violation of a restraining order must be reversed because the restraining order was void. Finally, in supplemental briefing, defendant argues he is entitled to resentencing based on statutory changes to Penal Code sections 654 and 1170. We agree his conviction for stalking in violation of a restraining order must be modified and he is entitled to resentencing, but otherwise affirm the judgment.

The trial court granted Teymur Mehtizada probation for offenses involving his sale of vehicles with fraudulently reset odometers. Mehtizada appeals the restitution requiring him to pay G.S. $7,000, the price G.S. paid for one such car, which G.S. testified was “not working.” Mehtizada maintains that he was entitled to an offset against the purchase price based on a Kelley Blue Book retail valuation for a vehicle of the same year, make, model, and actual mileage. We conclude the trial court acted within its discretion in denying the offset.

Defendant Leroy Fryer appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.91. For the reasons set forth below, we dismiss the appeal.

A jury convicted defendant Jose Trinidad Ortega-Camacho of sexually penetrating a minor, committing a lewd act upon a minor, attempting to commit a lewd act upon a minor, and simple battery. On appeal from a judgment sentencing him to an indeterminate term of 18 years to life in prison, defendant argues that insufficient evidence supports his sexual penetration and attempted lewd act convictions. He also contends his simple battery conviction (for a lesser included offense) must be reversed because it should have been dismissed on defendant’s motion under Penal Code section 1118.1. The Attorney General notes that a sentencing error resulted in an unauthorized sentence. Although we find no prejudicial error requiring a new trial, we will reverse the judgment and remand the matter for resentencing to correct the identified sentencing error.

In 2011, plaintiff Corey Bell was arrested while he was on parole. While incarcerated in county jail on his new criminal charges, Bell signed an “optional waiver” (former Cal. Code of Regs., tit. 15, § 2641, subd. (b)) and accepted a 12 month term for his parole violation. In 2012, after Bell requested a full parole revocation hearing, the Santa Clara County District Attorney’s Office filed a petition to commit him under the Sexually Violent Predators Act (SVP Act) (Welf. & Inst. Code, § 6600 et seq.). A statutory prerequisite to the commencement of SVP proceedings and the filing of a sexually violent predator (SVP) petition is that an inmate must be in custody under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR) serving either a determinate prison sentence, parole revocation term, or a hold pursuant to section 6601.3. (§ 6601, subd. (a)(1) & (3).)

Richard Beauchesne twice sued Bradford Baugh, one of a few lawyers who had once represented him in his dissolution action, along with Jeanne Schmidt, his sister and former guardian ad litem in the dissolution, and Thomas Kenefick, Schmidt’s boyfriend. In the second of Beauchesne’s lawsuits, filed over a year after the first, the trial court sustained Baugh’s demurrer to the second, third, fourth, and fifth causes of action on the ground that they were barred by the one-year statute of limitations in Code of Civil Procedure section 340.6.
As in the trial court, Beauchesne contends on appeal that both the appointment of a guardian ad litem and Schmidt’s representation by Baugh entitled him to tolling of the limitations period. We conclude that the trial court properly sustained the demurrer.

In 2006, the federal Drug Enforcement Agency (DEA) began investigating a drug trafficking operation (DTO) headed by defendant Jose Vargas Alvarez. Codefendants Emanuel Vargas Alvarez and Guillermo Velasquez were part of the DTO, which transported and sold large quantities of cocaine and methamphetamine throughout the San Francisco Bay Area as well as Southern California.
Following a joint trial, a jury convicted the defendants of multiple drug related offenses, as well as offenses related to the kidnapping of an individual Jose suspected of being involved in the theft of $2 million from one of the DTO’s “stash” houses. The trial court sentenced Jose to a total prison term of 47 years eight months. Emanuel and Guillermo were sentenced to prison terms totaling 30 years eight months.
On appeal, the defendants raise the following arguments: (1) the trial court erred in the procedure by which it evaluated their motion to compel discovery relating to the wiretap authorizations;

B.P. (mother), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rules 8.450−8.452) from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)) terminating her reunification services and setting a section 366.26 hearing for June 20, 2022, as to her now three year old son S.P. Mother raises various issues, none of which are properly set forth according to the rules. Nevertheless, we will liberally construe her writ petition as challenging notice of the detention hearing, the reasonableness of services provided by the Fresno County Department of Social Services (department), including visitation, and the veracity of information provided by the department to the juvenile court. Mother seeks a writ of mandate from this court directing the juvenile court to return S.P. to her custody and terminate its dependency jurisdiction. We deny the petition.