CA Unpub Decisions

Following the death of Wayne Chewning (decedent), objector and appellant Bunni Amburgey, as Executrix of the Estate of Lisa Tanya DeSutter, stepdaughter of decedent (stepdaughter) and Patricia Werner, daughter of decedent (Patricia), obtained $116,049 from decedent’s account at Bank of America after submitting a declaration under Probate Code section 13101. Prior to his death, stepdaughter withdrew $212,300.44 from a bank account in the name of decedent and his wife (stepdaughter’s mother) and used the money to purchase a home in Canyon Lake, California. Petitioner and appellant Edith Warren, as Administratrix of decedent’s estate (Edith), filed two petitions. On December 17, 2012, she sought to examine stepdaughter and Patricia regarding the wrongful taking, concealing or disposing of decedent’s $116,049 via the section 13101 declaration (2012 petition). On July 31, 2013, Edith sought to determine title to the Canyon Lake home (2013 petition). Following trial on the two

Leon Cody and Darlene Cody (the Codys) purport to appeal from an order on a motion for summary judgment the trial court granted in favor of defendant Bank of America, N.A. (Bank of America). Although not itself appealable, an order granting summary judgment is sometimes deemed to lie from a subsequently entered judgment. (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539.) Here, however, the judgment was entered after the trial court recalled the order from which the Codys attempt to appeal. Because the Codys’ notice of appeal relates to a nonappealable order that was recalled, we dismiss their appeal.

In 2016, this court affirmed (in a related appeal) the trial court’s ruling granting summary judgment on an unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) claim in favor of the alleged principal tortfeasor. (Matthew Burger v. Lowe’s Home Centers, LLC (March 28, 2016, G049771) [nonpub. opn.] (Burger I).) What was not before us then, and what we must decide in the appeal before us now, is whether plaintiff’s derivative UCL claims based on aiding and abetting theories—against other parties who did not move for summary judgment—are viable after elimination of the UCL cause of action against the primary tortfeasor.

Edgar Mier appeals from a denial of his motion to withdraw a plea of guilty to driving with a 0.08 percent blood alcohol concentration and causing injury. He contends the trial court erred in denying his motion to withdraw his plea because there was no factual basis for the plea. Alternatively, he contends his trial counsel was ineffective in advising him to accept the plea agreement without waiting for the results of a blood alcohol test. For the reasons set forth below, we conclude that the trial court properly denied the motion and that trial counsel was not ineffective. Respondent asks this court to correct the minute order to properly reflect the trial court’s oral pronouncement of sentence. We exercise our discretion to do so. Accordingly, we affirm the conviction and remand with directions to correct the minute order.

Jesse Joaquin appeals an order granting probation with “gang terms,” arguing that the gang terms are unreasonable. We affirm.
The factual basis for appellant’s change of plea is the probation report which contains the following summary: On August 3, 2016, a Ventura County Sheriff’s deputy saw appellant, a documented Sur Town gang member, standing next to Desiree Amador outside an apartment building in Moorpark. The deputy approached and asked to speak to appellant. Appellant fled to an upstairs apartment as Amador ran away.

Plaintiff and appellant Ben Safyari (plaintiff) was injured when an elevator he was standing in suddenly dropped one and a half floors. He brought product liability and negligence claims against the elevator’s manufacturer and against defendant and respondent Fujitec America, Inc. (defendant), the company that agreed to provide maintenance services for the elevator. Plaintiff dismissed his claims against the manufacturer, and the trial court granted summary judgment for defendant, finding (1) defendant carried its initial summary judgment burden by relying on plaintiff’s factually devoid responses to defendant’s discovery requests, and (2) plaintiff’s opposition to summary judgment did not demonstrate the existence of a material dispute of fact requiring trial. We consider whether the grant of summary judgment was proper, which requires us to analyze, among other things, whether plaintiff can properly invoke the doctrine of res ipsa loquitur to defeat summary judgment.

This case involves a dispute about a letter of intent agreement between Shailesh "Sunny" Patel and Chhatrala Business House (India) Private LTD (together Business House) and Deepak Israni and Pacifica Companies, LLC (together Pacifica) related to a development project for a property in India. Pacifica contended Business House breached fiduciary duties under the agreement by obtaining an order from the Supreme Court of India awarding Patel the property under a separate memorandum of understanding (MOU) with the government of the state of Gujarat, India. Business House contended the letter of intent agreement applied only if the property was acquired by the joint venture through a bidding process.

This appeal arises from two separate offenses which were sentenced at the same time. In one case Michael Lee Rhudy pleaded guilty to felony resisting arrest (Pen. Code, § 69). A jury convicted Rhudy of one count of unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) and one count of receiving stolen property (§ 496, subd. (a)). Rhudy admitted two strike priors (§ 667, subds. (b)-(i)) and four prison priors (§ 667.5, subd. (b)).

Defendant and appellant Andrea Marie Ramos pled guilty to one count of transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). In addition to imposing a four-year term of imprisonment, the court ordered that Ramos pay a drug program fee as provided under section 11372.7, subdivision (a) and a criminal laboratory analysis fee as provided under section 11372.5, subdivision (a). The amounts imposed—$615 for the drug program fee and $205 for the criminal laboratory analysis fee—appear to include penalty assessments under a number of statutory provisions. Relying on the holding and reasoning in People v. Watts (2016) 2 Cal.App.5th 223, 234-237 (Watts), Ramos argues the two fees are not penal in nature and, accordingly, not subject to imposition of a penalty assessment. We disagree with Watts and adhere to the well-established consensus, which treats the fees as fines subject to the penalty assessments.

Defendant James Raymond Rachal appeals from his conviction for second degree commercial burglary. Upon review of the record, we have determined that this conviction was dismissed by the trial court at the request of the prosecution. We therefore dismiss this appeal.

Defendant Jose Luis Ortiz appeals from the orders denying his applications to redesignate his 2013 and 2014 felony convictions for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) as misdemeanors under Proposition 47 (§ 1170.18, subd. (f)).
On appeal, Ortiz argues the trial court erred in denying his applications on the ground that these offenses were not eligible for redesignation under Proposition 47. We agree and will reverse the orders. Since the trial court expressly found that the value of each of the vehicles was less than $950, we will remand the matter to the trial court and direct that it enter new orders granting the applications.

This is an appeal from an order denying Jonathan A. Maihart's petition under Proposition 47 (Pen. Code, § 1170.18, the Safe Neighborhoods and Streets Act) to reclassify one of his felony convictions as a misdemeanor. The trial court found that Maihart's felony conviction for creating a counterfeit access card under section 484f, subdivision (a) was not eligible for reclassification under Proposition 47.

A jury declined to find defendant Eusebio Rafael Luna guilty of first degree murder as charged, but instead found him guilty of murder in the second degree. On appeal, he challenges the trial court’s refusal to instruct the jury on involuntary manslaughter based on his professed unconsciousness from voluntary intoxication. We agree the failure to instruct was error, but hold the error harmless.
Defendant also challenges the trial court’s refusal to allow impeachment of a prosecution expert coroner with her apparent mistake in a 2006 postmortem examination. We find no error in this decision by the trial court, and affirm the judgment.

A jury convicted Diego Garza of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a), 189; count 1), mayhem (Pen. Code, § 203; counts 2, 5), making criminal threats (Pen. Code, § 422; count 3) and stalking (Pen. Code, § 646.9, subd. (a); count 4). It found true allegations as to counts 1, 2 and 5 that Garza personally used a knife (Pen. Code, § 1192.7, subd. (c)(23)) and as to count 1 that he personally inflicted great bodily injury committed under circumstances involving domestic violence (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (e)). The court sentenced him on count 1 to life with the possibility of parole plus five years for the great bodily injury enhancement, a consecutive two-year midterm on the count 3 criminal threat conviction, and a consecutive eight months for the count 4 stalking conviction. It imposed but stayed under Penal Code section 654 the sentences on counts 2 and 5.