CA Unpub Decisions

After pleading guilty in case number 13CF0447, Javier Galvan was sentenced to 16 months. Although Galvan argued he was entitled to custody credits, he received no custody credits at the time of the pronouncement of judgment. According to trial counsel’s declaration, about three weeks after the sentencing hearing, he received a letter from Galvan asking counsel to file a notice of appeal on his behalf regarding his custody credits. According to counsel’s declaration, through inadvertence and clerical error he failed to file a timely notice of appeal, but nonetheless prepared a late notice of appeal to be filed in superior court. According to superior court, the late notice of appeal was stamped “received” but not filed because it was received six days beyond the 60 day deadline to file a timely notice of appeal. (Cal. Rules of Court, rule 8.308.)
The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant requests trial counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney, who has advised his client that he would file a notice of appeal, has a duty to file a proper notice of appeal, or tell the client how to file it himself. In this case, trial counsel advised Galvan that he would file a notice of appeal on his behalf. Galvan’s reasonable reliance on the promise of trial counsel to file a timely notice of appeal entitles him to the relief requested.

Eduardo Licona seeks relief from the failure to file a timely notice of appeal. The petition is granted.
On April 26, 2013, Eduardo Licona was sentenced to 45 years to life after a jury trial. According to trial counsel’s declaration, Licona advised him that he wanted to appeal the verdict and relied on counsel to file a notice of appeal on his behalf. According to counsel, after he prepared a notice of appeal and mailed it to the superior court on June 19, 2013, he received a letter from the superior court stating the notice of appeal had been “received” but not filed because it was received seven days beyond the 60 day deadline to file the notice of appeal. (Cal. Rules of Court, rule 8.308.)

The signatures of cross-complainants and appellants Phieu Phan and Yen Le were forged on certain documents and notarized using the notary seal of cross-defendant and respondent Chinh Nguyen. Appellants sued respondent for negligence, alleging he did not properly protect his notary seal. After a bench trial the court found respondent was not negligent in securing his notary stamp. Appellants claim the evidence shows to the contrary and the judgment should be reversed. We affirm.

Defendant Apolinar Hernandez Sanchez was convicted of continuous sexual abuse and commission of lewd acts against a child. The jury found true sentencing enhancement allegations of substantial sexual contact with a victim under 14 years of age, and that the crimes were committed against more than one victim. Under Penal Code section 667.61, often called the “One Strike” law, defendant was sentenced to a determinate term of six years, plus seven consecutive indeterminate terms of 15 years to life. We affirm the judgment in all respects.
On appeal, defendant argues the trial court’s exclusion of certain impeachment evidence was an abuse of discretion and violated his constitutional rights. We disagree. The trial court permitted defendant to impeach two witnesses with evidence of their conduct showing moral turpitude, but refused to allow evidence of statements made at or near the time of their arrests for those crimes. The court correctly determined admission of the witnesses’ statements would be more prejudicial than probative, would have resulted in an undue consumption of time, and would have required a minitrial on irrelevant issues within the trial.
Defendant also raises two arguments regarding his One Strike life terms. First, defendant contends that the trial court erred by imposing a One Strike term on count 5 because there was no written multiple-victim finding by the jury. After briefing was completed, the appellate record was augmented to include the written finding in question. Therefore, we conclude there was no error in this regard.
Finally, defendant argues the trial court erred by imposing One Strike sentences for both counts 2 and 3. Defendant contends that because those two crimes were committed against a single victim on a single occasion, only a single One Strike sentence could be imposed. The appellate record makes clear, however, that the two crimes were not committed on a single occasion, as that term was used in Penal Code former section 667.61, subdivision (g). Therefore, there was no error in the sentence.[1]

On appeal, Vincent L., a minor, contends (1) the juvenile court erred in calculating the term of confinement on his pending petitions and (2) the juvenile court failed to declare two offenses as either felonies or misdemeanors. We will remand to the juvenile court to consider and declare whether two of Vincent L.’s offenses were misdemeanors or felonies, and to modify the term of confinement. In all other respects, we will affirm the juvenile court’s orders.

In a consolidated jury trial, defendant Joseph Florez was convicted of being a felon in possession of a firearm (former Pen. Code,[1] § 12021, subd. (a)(1), presently § 29800, subd. (a); count 7), as well as several other counts stemming from a special circumstance double homicide that occurred during a separate incident. The jury found true special allegations that all counts were committed for the benefit of a criminal street gang in violation of section 186.22, subdivision (b)(1). In a bifurcated proceeding, the trial court found true allegations that defendant suffered three prior convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(i)).
Prior to sentencing, defendant filed a motion for a new trial based on newly discovered evidence. The trial court granted the motion as to all counts stemming from the murder charges, however, denied the motion as to the separate felon in possession of a firearm count (count 7). The prosecution subsequently dismissed without prejudice the charges relating to the murder, and the trial court sentenced defendant to a total prison term of 28 years to life.

On September 8, 1998, defendant and appellant Gregory Pierson was sentenced to two consecutive 25-year-to-life terms for violating Penal Code[1] section 496 (receiving stolen property, count 1), and Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance, count 2). The court also sentenced defendant to an additional one year pursuant to Penal Code section 677.5, subdivision (b). On March 17, 2000, the court resentenced defendant and imposed the sentence on count 2 concurrently, rendering his total sentence 26 years to life.
On December 11, 2012, defendant filed a motion to modify his sentence under section 1170.126. The People filed an opposition to the motion to modify on March 21, 2013. While the motion was pending, the Superior Court of San Bernardino County granted a similar motion by defendant. After hearing argument on the motion on April 26, 2013, the court took the matter under submission. On May 10, 2013, the court denied the motion.
On May 20, 2013, defendant filed a timely notice of appeal.

A jury found defendant and appellant Anthony Carl Webb guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11378). In a bifurcated proceeding, the trial court found true that defendant had suffered a prior drug-related conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total term of four years four months in county prison with credit for time served. Defendant appeals from the judgment. We find no error and will affirm the judgment.

Defendant Quinterrious Clark was convicted after a jury trial on one count of annoying or molesting Jane Doe, a child under the age of 18 years old (Pen. Code, § 647.6, subd. (a)(1)),[1] and on one count of receiving stolen property (§ 496, subd. (a)). The jury also found true an allegation that defendant suffered a prior conviction for annoying or molesting a child under the age of 18 years old, such that the current conviction was punishable by imprisonment in state prison. (§ 647.6, subd. (c)(1).) The trial court sentenced defendant to a total of 10 years and 4 months in state prison.
On appeal, defendant argues his conviction for annoying and molesting a child under the age of 18 years old must be reversed because the prosecution introduced no evidence that he was motivated by an unnatural or abnormal sexual interest in the victim when he touched her wrist. Because a reasonable jury could conclude that defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the underage victim, we affirm.

Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant and appellant Arthur Raymond Moreno pleaded guilty to a violation of Health & Safety Code section 11357, subdivision (a),[1] possession of concentrated cannabis.
In this appeal, defendant argues the trial court erred when it denied his motion to suppress evidence found during a search of his vehicle, which was prompted by a police officer’s detection of a strong odor of marijuana emanating from the vehicle. As discussed post, the warrantless search was supported by probable cause and, so, we affirm the judgment.

A jury convicted defendant Pablo Elias of continuous sexual abuse of Jane Doe #1 and Jane Doe #2, two of his nieces who were under the age of 14 (Pen. Code,[1] § 288.5, subd. (a); counts 1 [Jane Doe #1] & 4 [Jane Doe #2]), one count of rape of Jane Doe #1 by force, fear, or threats (§ 261, subd. (a)(2); count 2), one count of sodomy of Jane Doe #1 by force, threats, or fear (§ 286, subd. (c)(2); count 3), and one count of aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(5); count 5). The jury also rendered true findings with respect to counts 1 and 4 that defendant continuously sexually abused both victims at the same time and in the same course of conduct (§ 1203.066, subd. (a)(7)), and that defendant was convicted of more than one sex offense against multiple victims (§ 667.61, subd. (e)(4)).[2] The trial court sentenced defendant to state prison for a determinate sentence of 32 years plus an indeterminate sentence of 30 years to life, and stayed imposition of a 15-year sentence on count 3 pursuant to section 654. Finally, the court ordered defendant to register as a sex offender upon his release from prison.
In this appeal, defendant contends the record lacks substantial evidence to support his convictions under counts 2 and 3 of raping and sodomizing Jane Doe #1 by means of duress or fear of immediate bodily injury. We conclude otherwise and therefore we affirm the judgment.

J.Z. appeals from the juvenile court’s denial of his motion to dismiss based on prosecutorial delay of less than four months in filing the juvenile delinquency petition. As discussed below, we conclude that the juvenile court did not abuse its discretion because it properly balanced the prejudice to J.Z. against the reasons for the delay and found no due process violation.

Defendant Etienne Volanti is serving eight years in prison after pleading guilty to stalking as a second strike. He challenges the $450.34 booking fee imposed at sentencing under Government Code section 29950, subdivisions (c) and (d). Defendant argues the statute authorizing the trial court to impose the fee without considering his ability to pay violates his right to Equal Protection, because it treats convicted persons sentenced to imprisonment differently from those granted probation. As discussed below, we affirm the judgment but order the abstract of judgment modified to reflect the booking fee actually imposed by the court.

Cross-defendant and respondent Best Buy Stores, L.P. (Best Buy) sued cross-complainant and appellant The Colonies-Pacific 19A, LLC (the Colonies) requesting the trial court declare the real property lease between the parties was not amended and that the lease had been breached by the Colonies. The Colonies cross-complained raising causes of action for (1) breach of contract, (2) promissory estoppel, (3) breach of the covenant of good faith and fair dealing, (4) fraud, and (5) declaratory relief. The trial court granted summary judgment in favor of Best Buy, finding the lease was not amended and the Colonies breached the contract.
The Colonies raises six issues on appeal along with subissues. First, the Colonies asserts the trial court erred because the Colonies raised triable issues of material fact concerning the breach of contract cause of action. Specifically, the Colonies faults the trial court for not considering issues of waiver and equitable estoppel. Second, the Colonies asserts the trial court erred in regard to the breach of the covenant of good faith and fair dealing cause of action because there are disputed issues of fact concerning waiver and equitable estoppel. Third, the Colonies contends the trial court erred because the Colonies raised triable issues of material fact for the promissory estoppel cause of action. Specifically, the Colonies asserts there is conflicting evidence concerning the existence of a clear promise and reasonable reliance on that promise.