CA Unpub Decisions

Defendant Faustino Flores pleaded no contest to two felony counts of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and a misdemeanor count of resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court suspended imposition of sentence and placed him on probation for three years.
On appeal, defendant contends the trial court erred by imposing gang-related probation conditions. Defendant also contends, and the Attorney General concedes, that he is entitled to additional custody credit for the time he spent in custody attributable to both his probation violation and his more recent offenses. We will modify the judgment to include the correct amount of custody credit and affirm the judgment as so modified.

E.R. (father) in propria persona seeks an extraordinary writ from the juvenile court’s orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1] as to his 17-year-old daughter, Angelique, and seven-year-old son, Ralph. Father contends there was insufficient evidence to support the denial of services order. He asks for an order granting him reunification services, visitation and return of the children to his custody. We deny the petition.

R.H. (father) appeals from the juvenile court’s jurisdictional and dispositional orders declaring his infant daughter, I.H., a dependent of the court pursuant to Welfare and Institutions Code[1] section 300, subdivision (b) (failure to protect) and subdivision (j) (abuse of sibling), and removing her from the parents’ physical custody. Father contends the juvenile court erred in denying him reunification services and that insufficient evidence supports the court’s removal order. We reject father’s contentions and affirm the orders.

Following a jurisdictional hearing, the juvenile court found true the allegation that defendant, A.L., committed misdemeanor resisting, delaying, and obstructing a peace officer in the performance of his duties (Pen. Code,[1] § 148, subd. (a)(1)).[2] Following the subsequent dispositional hearing, the court declared defendant a ward of the court, placed him on home probation, and set a maximum term of confinement of one year. On appeal, defendant contends (1) there was insufficient evidence to support the courtʼs jurisdictional finding, and (2) the court erred in setting a maximum term of confinement. We agree with defendantʼs second contention and will strike the specification of the term of confinement. In all other respects, we will affirm the judgment.

Pursuant to a plea agreement, appellant, David Wayne Brown, on June 11, 2012,[1] pleaded no contest to attempted second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c); 664)[2] and admitted allegations that he had suffered a 2004 federal court conviction of bank robbery that qualified as both a serious felony conviction under section 667, subdivision (a) and as a “strike.”[3] One of the terms of the plea agreement was that appellant would receive a sentence of no more than seven years eight months.
On August 1, appellant filed what is commonly called a “Romero motion”[4] in which he “invite[d] the court to dismiss” the strike allegation.
On August 22, the following occurred: An amended criminal complaint was filed in which it was alleged, inter alia, that appellant had suffered a second strike, viz., a conviction in 2000 of making criminal threats (§ 422); appellant admitted the new strike allegation; and the court struck that allegation pursuant to section 1385, denied appellant’s Romero motion with respect to the 2004 bank robbery conviction, and imposed a prison term of seven years eight months, consisting of the 16-month lower term doubled to 32 months pursuant to the three strikes law, plus five years on the prior serious felony enhancement.
On October 11, appellant filed a timely notice of appeal in which he requested the court issue a certificate of probable cause (§ 1237.5). The court denied that request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this court’s invitation to submit additional briefing, has filed a supplemental brief in which he makes the contentions we discuss below.[5] We affirm.

In 2003, when the City of Fresno (the City) was seeking to annex certain parcels of land served by the Fresno County Fire Protection District (the District), the two public entities entered into an agreement entitled “Transition Agreement … Regarding Transfer of Certain General Ad Valorem Real Property Tax Revenue Generated by Annexations” (the agreement). The agreement provided that, for a specified period of time after each annexation, the City would pay the District a portion of the ad valorem tax revenues generated from the annexed territory based on a formula in the agreement. After the City annexed a number of parcels and made payments to the District pursuant to the agreement, a dispute arose between the parties over how to calculate the amount that the City was required to pay. In particular, the parties disagreed about the date to be used for measuring base year revenue under the agreement.[1] The City had applied the date articulated in the contractual provision defining the term “base year revenue,” but the District believed a later date should be used, which would result in increased sums due the District.
The District filed a complaint alleging breach of contract and related causes of action, claiming it had been underpaid. The City then moved for judgment on the pleadings on the ground that under the unequivocal terms of the agreement, the City’s interpretation was correct as a matter of law—thus, the District failed to state a cause of action. The trial court agreed with the City’s position, granted the motion for judgment on the pleadings without leave to amend, and entered judgment in favor of the City. The District now appeals, contending the trial court erred in construing the agreement because, allegedly, the interpretation adopted by the trial court conflicted with existing statutory law and failed to consider other contractual provisions. We conclude that the trial court correctly construed the agreement. Since the District failed to state a cause of action and no basis for possible amendment is apparent, we affirm the judgment.

In these writ proceedings, Hasani Villa asks us to order the superior court to dismiss the murder charge and related charges that have been filed against him on the ground that he has already been convicted of being an accessory to the same murder after the fact. We summarily denied Villa’s writ petition on May 10, 2012, but the California Supreme Court granted review and ordered us to issue an alternative writ. Having done so and having carefully reviewed the parties’ submissions, we now conclude that the murder charge cannot properly be dismissed. Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), on which Villa relies, is distinguishable. We will deny the petition.

Appellant Leonard Roque was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a))[1] and sentenced to 16 years to life in prison. His appeal is based on the trial court’s failure to instruct the jury with a portion of CALCRIM No. 358 that warns evidence of a defendant’s unrecorded extrajudicial statements should be viewed with caution. We find that the trial court’s omission of this instruction was harmless error and affirm the judgment accordingly.

Appellants T.M. (father) and J.C. (mother) have filed separate briefs regarding their son, T.M. (the child). Mother argues that the juvenile court erred in denying her an evidentiary hearing on her Welfare and Institutions Code[1] section 388 petition. Mother and father both claim that the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.

On May 17, 2011, the San Bernardino County Children and Family Services (CFS) filed a Welfare and Institutions Code[1] section 300 petition on behalf of the child, who was seven months old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (severe physical abuse of a child under five). The petition alleged that father and the child’s mother (mother)[2] engaged in domestic violence in the presence of the child, that father physically abused the child, and that the abuse resulted in injuries such as bruising, a torn frenulum, a skull fracture, and a broken femur. The petition also alleged that mother used marijuana throughout her pregnancy, that father knew or reasonably should have known that she had a problem with substance abuse, and that father also had a history of substance abuse.
The social worker reported that mother had a history of domestic abuse and had previously gone to jail. Father obtained a protection order against mother in February 2011, and she had no contact with him or the child since then. Father stated that he had been the primary caretaker of the child since February 25, 2011.
On May 18, 2011, a juvenile court detained the child in confidential foster care.

A jury convicted defendant Terry Lee Garvin of making criminal threats against his fiancée’s sister, Latasha Smith, in violation of Penal Code section 422.[1] The court sentenced defendant to a prison term of two years.
Defendant, who represented himself below, raises multiple issues on appeal: violation of section 987; error in admitting other-crimes evidence and excluding evidence of defendant’s acquittal on another offense; and error in responding to the jury’s questions during deliberations. We conclude there was no prejudicial error and no cumulative error. We affirm the judgment.

Defendant Sidikiba Greenwood Jr. shot Hubert Williams three times in the chest during an altercation that involved defendant’s mother and a woman that was with Williams. Williams died as a result of the gunshot wounds.
Defendant was convicted of willful, premeditated and deliberate first degree murder (Pen. Code, § 187, subd. (a)). [1] The jury also found true the allegations that he discharged a firearm causing death during the commission of murder (§ 12022.53, subd. (d)); he personally discharged a firearm (§ 12022.53, subd. (c)); and that he personally used a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to 25 years to life for the first degree murder, plus 25 years to life for the section 12022.53, subdivision (d) enhancement, for a total state prison term of 50 years to life.

Plaintiff Oxnard Corner, LLC (Oxnard), owns one of seven parcels in a shopping center on which it operates a supermarket. AP-Colton (AP-C), owned the remaining six parcels, which were leased out subject to a restrictive clause prohibiting the sale of groceries on any of AP-C’s parcels. A subdivision-lessee of one tenant engaged in the prohibited activity and failed to correct the breach. Oxnard sued AP-C, its tenant and subtenant for injunctive relief, as well as for damages sounding in both contract and tort theories. While a hearing on AP-C’s pleading attacks was pending, Oxnard voluntarily dismissed AP-C, and AP-C filed a memorandum of costs. AP-C subsequently filed a motion for attorneys’ fees, which was granted. Oxnard appeals that order.
On appeal, Oxnard argues that the court erred (1) in awarding attorneys’ fees pursuant to Code of Civil Procedure section 1032; (2) finding that AP-C was the prevailing party; (3) making an order for attorneys’ fees prematurely; (4) refusing to delay ruling on the motion until after the case was concluded; (5) refusing to apportion fees between the contract and tort causes of action; and (6) violating the one-judgment rule. We affirm.

Defendant Christian Samir Abadir hired two men to burn down his house. He then filed claims against his homeowner’s insurance policy for the losses. Defendant was charged with arson and related crimes.[2] In his first trial, defendant testified and the jury was unable to reach a verdict on the charges, although the majority voted in favor of guilt. Defendant did not testify at his second trial and the jury convicted him.
The trial court denied defendant’s motion for a new trial, which was based on ineffective assistance of counsel and other grounds. The trial court sentenced defendant to prison for eight years.
On appeal, defendant contends the trial court erred in denying his new trial motion because his trial counsel was ineffective when he discouraged defendant from testifying at his second trial, as well as when he failed to communicate with him, to investigate the case, and to move for a mistrial based on jury tampering. We conclude the trial court properly exercised its discretion in denying the new trial motion because defendant failed to establish that trial counsel’s performance was deficient or that any prejudice resulted from the alleged deficiencies. In addition, defendant forfeited any new issue not raised below in the new trial motion.
The trial court neither imposed nor struck the section 451.1, subdivision (a)(5), enhancement. Accordingly, the case should be remanded for the limited purpose of allowing the court an opportunity to exercise its discretion in this regard. Otherwise, we affirm the judgment.