CA Unpub Decisions

Curtis Conner and his daughters, Priscilla Conner and Delilah Johnson, appeal from the judgments entered after a jury convicted them each of multiple counts of insurance fraud arising from staged or fabricated car accidents. Curtis,[1] the patriarch of the Conner family and ringleader of the fraudulent scheme, was convicted of 17 counts of insurance fraud (Pen. Code, § 550, subd. (a))[2] and three counts of perjury (§ 118, subd. (a)). Priscilla, a chiropractor, was convicted of 10 counts of insurance fraud; and Delilah, a tow-truck driver employed by the family-owned body shop, MB Automotive, was convicted of four counts of insurance fraud. We affirm the convictions of Priscilla and Delilah. Because Curtis failed to appear at his sentencing and was declared and remains a fugitive, we dismiss his appeal.

Appellant Martin Sotelo appeals from the judgment entered following his convictions by jury on count 1 – first degree murder (Pen. Code, § 187) with a principal personally and intentionally discharging a firearm causing death (Pen. Code, § 12022.53, subds. (d) & (e)(1)), and with special circumstances he committed the murder because of the victim’s race (Pen. Code, § 190.2, subd. (a)(16)) and by discharging a firearm from a motor vehicle (Pen. Code, § 190.2, subd. (a)(21)), count 2 – evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)), and count 3 – attempted second degree robbery (Pen. Code, §§ 664, 211)[1] with a principal personally using a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)), with, as to counts 2 and 3, a principal personally armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) and, as to each of counts 1 through 3, a finding he committed the offense for the benefit of, at the direction of, and in association with, a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to prison for life without the possibility of parole, plus 42 years to life. We modify the judgment and, as modified, affirm it with directions.

Defendant and appellant, Darrell Richard Herrera, appeals his conviction for making an attempted criminal threat, with prior serious felony conviction findings (Pen. Code, §§ 664, 422, 667, subds. (a)-(i)).[1] He was sentenced to state prison for a term of 35 years to life.
The judgment is affirmed.

Appellant James Taggart filed a postjudgment motion in a dissolution proceeding between himself and respondent Nicole Grey. The trial court — sua sponte, without advance notice to the parties, and before the completion of the briefing and submission of evidence — struck the motion on the ground that it lacked jurisdiction. We conclude the trial court’s action violated Taggart’s due process right to notice and an opportunity to be heard on his motion, and therefore reverse.

Defendant Traisen Ray Wallace was placed on probation after pleading guilty to possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and selling, transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)). Thereafter, defendant violated probation and the trial court sentenced him to three years in prison.
On appeal, defendant contends, and the Attorney General concedes, that the trial court erred by (1) failing to award an additional 180 days of actual custody credit and (2) limiting his conduct credit to 20 percent. We agree that the concessions are appropriate, and we will therefore modify the judgment.
In June 2005, the District Attorney filed an information charging defendant with possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and selling, transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a); count 2). The information further alleged that at the time the offenses were committed, defendant was released from custody on bail or on his own recognizance (Pen. Code, § 12022.1[1]). On July 21, 2005, defendant pleaded guilty to both counts, and the enhancements were stricken as to both counts. The trial court suspended imposition of sentence and placed defendant on probation for three years. As a condition of probation, defendant was ordered to serve 365 days in county jail.

Male inmates in the Salinas Valley State Prison are expected to disrobe in their cells, bend over, and spread their buttocks at the direction of correctional officers outside their cells. During such a routine search for contraband on December 30, 2010, Correctional Officer Troy Miller noticed some lubricant in the rectal area of defendant Lennox Pinks and a plastic ball protruding from his rectum. Miller handcuffed defendant after having him dress and brought him to a more secure area in a health annex for a further search. Although defendant denied having any contraband on his person, Miller confirmed his observation during a repetition of the earlier examination. On further questioning by Miller, defendant admitted it was drugs and clarified that it was heroin. At Miller’s request, defendant removed a plastic-wrapped bindle and dropped it behind himself. Subsequent analysis by a criminologist confirmed that in defendant’s rectum were four plastic-wrapped bindles of black tar heroin totaling .35 grams in weight.
Facing charges of unauthorized possession of heroin in prison (Pen. Code, § 4573.6[1]) with a prior robbery conviction (§ 1170.12), defendant agreed to waive a jury trial on the condition that if convicted, his maximum sentence would be the lower term doubled to four years. The same day, August 20, 2012, defendant was convicted as charged after a court trial based on the above evidence with no testimony from defendant. He requested immediate sentencing and was sentenced the same day to prison for four years consecutive to any other sentence he was already serving. Defendant filed a handwritten notice of appeal on October 11, 2012 that explained that his attorney had breached a promise to mail him a notice of appeal form.
By letter dated May 2, 2013, this court notified defendant that his appellate counsel filed a brief inviting us to identify any arguable appellate issues. Defendant has responded with a half-page handwritten letter acknowledging our letter and asking for assistance in arguing that his trial counsel was ineffective because defendant was not allowed to call specific witnesses. For the reasons stated below, we will affirm the judgment.

Vien T. Bui, in consolidated actions filed in early 2010, sued various parties for dental work performed on him at a clinic over a nine-month period concluding in November 2008. One of those parties, Lien Hoang, a licensed dentist,[1] moved successfully for summary judgment on dual grounds: (1) Bui could not establish all essential elements of his claim for professional negligence; and (2) his suit was time-barred. At the time it granted summary judgment, the court also denied Bui’s motion to amend his complaint to add new causes of action against Hoang.
In Bui’s appeal from the judgment entered against him, he claims that the court, in granting summary judgment, incorrectly applied the statute of limitations for medical malpractice, Code of Civil Procedure section 340.5, to conclude that his suit was time-barred.[2] He argues that there were a number of legal theories other than professional negligence that were reasonably contemplated in the complaint for which section 340.5 was inapplicable. He contends further that, in any event, the court erred by selecting an arbitrary date in June 2008 as the commencement date of the statute of limitations under section 340.5. Lastly, he asserts that the court abused its discretion in denying his motion for leave to amend his complaint.
We conclude that the court properly granted summary judgment on the ground that Bui’s pleaded claim was time-barred, and that the court did not abuse its discretion in denying Bui leave to amend. We will therefore affirm the judgment.

Defendant Manuel Martinez Contreras appeals from the judgment entered after a jury found him guilty of committing a lewd act upon a child under 14 years old, misdemeanor assault and battery, and kidnapping. The jury found true the enhancement allegation that Contreras kidnapped his victim to commit a lewd act upon her. Contreras argues the trial court erred by refusing to instruct the jury with a special instruction on third party culpability. Contreras also argues the trial court erroneously stated that he is likely ineligible for postsentence prison conduct credit as to the imposed indeterminate 15‑year‑to‑life sentence.
We affirm. Even if we were to assume the trial court erred by refusing to instruct the jury with the special instruction on third party culpability, any such error was harmless. Furthermore, the trial court’s stray comment regarding the unlikelihood of the Department of Corrections and Rehabilitation awarding Contreras postsentence conduct credit did not constitute error.

The court adjudged appellant, S.H., a ward of the court (Welf. & Inst. Code, § 602)[1] after it found true allegations charging appellant with one count of committing lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

In this dependency case (Welf. & Inst. Code, § 300),[1] B.B. (mother) appeals from the jurisdictional and dispositional orders regarding her son, J.B. (the child). Mother contends (1) the juvenile court erred by failing to evaluate her competency and the need to appoint a guardian ad litem, and (2) the notice of the hearing failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.) and California law. We reverse for the limited purpose of ensuring adequate notice as prescribed by law.

Appellant, Claude Charles Spencer, pled no contest to transportation of cocaine base (count 1/Health & Saf. Code, § 11352, subd. (a)); possession for sale of cocaine base (count 2/Health & Saf. Code, § 11351); and he admitted five prior prison term enhancements (Pen. Code, § 667.5, subd. (b))[1] and two prior conviction enhancements (Health & Saf. Code, § 11370.2).
On appeal, Spencer contends: 1) his abstract of judgment contains two clerical errors, and 2) the court erred by its failure to recalculate his presentence custody credit. We find merit to Spencer’s first contention and direct the court to issue a corrected abstract of judgment. In all other respects, we affirm.

On June 21, 2011, appellant, James Michael Foley, waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 and pled no contest to one count of possession of illegal substances in a jail facility (Pen. Code, § 4573.6).[1] Appellant also admitted a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and multiple prior prison term enhancements (§ 667.5, subd. (b)).
On July 22, 2011, the trial court struck the prior serious felony conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court struck the prior prison term enhancements and imposed a sentence of three years for possession of illegal substances in a jail facility. The court ordered appellant’s sentence to be served concurrently with his sentence for a conviction in an unrelated case. The court granted appellant 54 days of custody credits for time served in jail and conduct credits of 26 days for total custody credits of 80 days. The court imposed a $200 restitution fine.
On June 4, 2012, appellant filed a motion in the trial court requesting a recalculation of his presentence custody credits seeking additional conduct credits. The trial court denied appellant’s motion on June 27, 2012. Appellant appealed the trial court’s denial of his motion. Appellate counsel has filed a brief for independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

While defendant Jose Ruben Avila was on probation, he stole two sago palm trees from an acquaintance’s front yard. Defendant pled guilty to grand theft, the taking of personal property valued over $950. (Pen. Code, § 487, subd. (a).) On appeal, he contends defense counsel was ineffective for failing to investigate the value of the palms. We will affirm.

Appellant/defendant Irvin Lee Briggs was involved in an argument with two men. He obtained a semiautomatic handgun and fired multiple shots at them while they were in the parking lot of a commercial business. No one was injured from the gunshots.
Defendant was charged and convicted of count II, discharging a firearm at an inhabited dwelling house or occupied building (Pen. Code[1], § 246); count III, possession of a firearm by a felon (§ 12021, subd. (a)(1)); and count IV, assault with a firearm (§ 245, subd. (a)(2)), with an enhancement for personally using a firearm (§ 12022.5, subd. (a)). The jury found him not guilty of count I, attempted murder, and deadlocked on the lesser included offense of attempted voluntary manslaughter. As to all counts, the court found he had a prior serious felony conviction (§ 667, subd. (a)), one prior strike conviction (§§ 667, subds. (b)-(e) & 1170.12, subds. (a)-(e)), and served four prior prison terms (§ 667.5, subd. (b)). He was sentenced to an aggregate second strike term of 23 years.
On appeal, defendant contends the trial court abused its discretion when it permitted the prosecution to impeach his trial testimony with his prior conviction for robbery in 2000. Defendant contends the evidence was prejudicial, the prior conviction was remote to the charged offenses, and the court should have sanitized the nature of the offense. We affirm.