CA Unpub Decisions

We appointed counsel to represent Roary William Gorbea on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Gorbea’s behalf. We gave Gorbea 30 days to file written argument on his own behalf. That time has passed, and Gorbea has not filed any written argument.

Israel Soto appeals from an order denying his petition under Penal Code section 1170.18 (Proposition 47) to have his 2007 possession of marijuana for sale conviction designated a misdemeanor. Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues on appeal and requesting we independently review the record to determine if the trial court committed any error. Soto filed a supplemental brief, arguing the trial court violated his federal constitutional rights to equal protection and due process when it denied his petition.

Diana Djavaherian engaged in a pattern of harassing conduct towards her neighbors, including next door neighbor Kathleen Maughan, over many years. Djavaherian eventually constructed a common wall between the property she lived on and Maughan's property. When Maughan and the owners of the home Maughan lived in, Dennis and Bonnie Epperson, refused to pay for the construction, Djavaherian brought a small claim's court action against them seeking reimbursement for part of the cost of the wall. The Eppersons responded by filing a complaint against Djavaherian and the owner of her property, Djavaherian's mother Mehrazar Refahityat, for trespass based on the wall encroaching on their property. The cases were consolidated, and Djavaherian filed additional claims against Maughan and the Eppersons for breach of contract, unjust enrichment, and trespass.

A jury convicted Hans Antone Petersen of two counts of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 189, 664; counts 1 & 3), one count of shooting at an inhabited dwelling (§ 246; count 4), one count of burglary of an inhabited dwelling when another person, not an accomplice, was present (§§ 459, 460, 667.5, subd. (c)(21); count 5); and one count of drawing or exhibiting a firearm (§ 417, subd. (a)(2); count 6). As to counts 1 and 3 through 5, the jury also found true allegations Petersen personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).

Defendant Anthony Joseph Murray was sentenced to four years four months in prison under a negotiated disposition of three cases for carjacking (Pen. Code, § 215) and willfully inflicting traumatic injury on his spouse, after a prior battery or assault conviction (Pen. Code, § 273.5, subd. (f)(1)). Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf and received no response.

Appellant D.D., a minor, appeals from the juvenile court’s dispositional order following a true finding to a petition filed under Welfare and Institutions Code section 602 alleging appellant committed a robbery (Pen. Code, § 211). Appellant contends one of the conditions of his probation, limiting his right to leave Stanislaus County, is facially overbroad. Alternatively, appellant contends he received ineffective assistance of counsel when his counsel failed to object to the contested term. For the reasons set forth below, we affirm.

Deanna W. (Mother) appeals the order terminating her parental rights to her children Mason M. and Ethan W. (together, Children) entered at a permanency plan and selection hearing held under Welfare and Institutions Code section 366.26. Mother argues the court abused its discretion when it denied her section 388 petition without an evidentiary hearing, and also erred when it rejected her claim that the beneficial parent relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied when it assessed whether termination of her parental rights was proper. We conclude (1) the court properly denied her section 388 petition, and (2) substantial evidence supports the conclusion the beneficial parent-child relationship exception did not apply and the court did not abuse its discretion in terminating her parental rights.

K.M. (minor) appeals from the judgment entered after the juvenile court adjudicated minor a ward of the court. He contends that his attorney rendered ineffective assistance in failing to advocate for a lower maximum period of confinement, that the juvenile court improperly imposed conditions of probation, and that he is entitled to an additional day of predisposition custody credit. We strike the conditions of probation and correct the disposition to reflect 380 days of custody credit, but finding no merit to minor’s claim of ineffective assistance of counsel, we otherwise affirm the judgment.

Defendant Armando Lopez appeals from a judgment of conviction after a jury trial. He raises issues regarding prosecutorial misconduct, instructional error, insufficient evidence, discovery violation, denial of a pretrial severance motion, and excusing a juror who became ill during trial. Finding no error, we affirm.

Plaintiffs and appellants Frederick Adam Dominski, Jr. and Chris Carole Dominski (the Dominskis) contracted with defendant and respondent Lazar Construction/Design, Inc. (Lazar Construction) to build a custom home on Thirtieth Street in Hermosa Beach (Thirtieth Street or the home). The Dominskis received an “unexpected” invoice several months after the home was completed, which allegedly caused them to question Lazar Construction’s billing practices throughout the construction process. Although the Dominskis were pleased with the workmanship of their home, which they admit was free of defects, they claim they were billed for labor at a higher rate than stated in their written contract, and they were billed for labor not performed in the construction of Thirtieth Street.

A jury found defendants Margarito Gonzalez and Jesus Soto (collectively defendants) guilty of home invasion robbery, first degree residential robbery, first degree residential burglary, and four counts of assault. On appeal, defendants argue: (1) the evidence was insufficient to support the robbery convictions; (2) Penal Code section 1157 requires that the convictions for first degree robbery and first degree burglary be reduced to second degree offenses; and (3) Section 654 required the trial court to stay the sentence on an assault count involving the victim who was also the subject of the robbery. We find no merit in these claims.

Defendants and appellants Brandon Dion Audinette (Audinette) and Xavier Gage Gaither (Gaither) appeal from judgments entered after they were convicted of conspiracy to murder, attempted murder, and shooting at an inhabited dwelling. They contend that the trial court erred in failing to give a sua sponte jury instruction on heat of passion, and that the court’s conspiracy instructions erroneously included a definition of implied-malice murder. Gaither further contends that his sentence violated the Eighth Amendment to the United States Constitution, as well as article I, section 17, of the California Constitution. Gaither also asks that we correct clerical error in the abstract of judgment. We agree that the jury instruction regarding implied-malice murder was given in error, but find beyond a reasonable doubt that the error was harmless. We correct clerical errors in both defendants’ abstracts of judgment, but finding no merit to defendants’ remaining contentions, we affirm

This appeal arises from a dispute about liability coverage under two insurance policies procured by Eduardo Ramirez (Ramirez) and his wife Rosa Batun (Batun) from defendant Fire Insurance Exchange (Fire Insurance). One of the policies covered their residence, and the other covered a subdivided home they rented out to two families, one of which was plaintiff Maria Olivia Vasquez (Vasquez) and her five children. Both policies insured Ramirez and Batun from damages they became obligated to pay because of bodily injury or property damage, but excluded from this liability coverage were any injuries or damage resulting from the use of motor vehicles.

Plaintiff and appellant Vince Flaherty brought an action against defendant and respondent Bank of America, N.A. (incorrectly named as Bank of America, Inc.) that ultimately asserted 18 causes of action concerning a home loan plaintiff obtained from defendant. After sustaining without leave to amend defendant’s demurrer to 13 of plaintiff’s causes of action, the trial court ruled that four of plaintiff’s remaining causes of action and part of the fifth were barred by the doctrine of judicial estoppel. As to the remaining part of the fifth cause of action, the trial court granted non-suit. Thereafter, the trial court entered judgment in defendant’s favor. Plaintiff appeals, and we affirm.