CA Unpub Decisions

Appellants Fernando Ambriz and Freddy Ambriz appeal from judgments of conviction for first degree murder.[1] They contend (1) the trial court erred in declining to hold a hearing to examine alleged juror misconduct, (2) the court erred in denying a mistrial motion brought after a prosecution witness mentioned he had previously arrested Fernando, (3) there was instructional error with respect to Freddy’s role as an aider and abettor, and (4) the 10-year gang enhancement must be stricken. The People concede there was sentencing error. We affirm the convictions, and remand for resentencing in light of this opinion.

A modification decision.

Originally charged with murder (Pen. Code,[1] § 187), defendant was convicted by a jury of voluntary manslaughter (§ 192, subd. (a)), with use of a firearm (§ 12022.5, subd. (a)). Defendant was sentenced to a total of 21 years in state prison. In this timely appeal, defendant contends that the jury was improperly instructed (failure to instruct pursuant to People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry)[2] and that he was improperly sentenced (due to use of improper aggravating circumstances). We find no error and affirm.

Defendant George William Graham is serving two years and eight months in prison after pleading guilty to second degree commercial burglary. (Pen. Code, § 459.) We affirm the conviction.

Appellant C.V. (the mother) challenges the juvenile court’s order terminating her parental rights and selecting adoption as the permanent plan for her three children. She claims that the court erred in failing to find that the parental relationship exception precluded termination. We disagree and affirm the order.

We appointed counsel to represent Juan Vargas Flores 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 no issues were found to argue on his behalf. To assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel provided information on three issues:
(1) whether Flores was properly advised of his constitutional rights prior to his guilty pleas; (2) whether there was a factual basis for the guilty pleas; and (3) whether the sentence was consistent with the plea agreement. Flores was given 30 days to file written argument on his own behalf. Flores timely filed a letter with this court in response.
In his letter, Flores indicated in a rambling fashion various complaints about his attorney. Among other allegations, Flores alleged his lawyer was incompetent, discriminated against Latinos, and conspired with the prosecution to secure maximum sentences for her clients. Flores also asserted the victim was a liar and a thief and that he had been coerced into giving up his right to a jury trial and pleading guilty.
Counsel did not provide the court with any specific information to assist it with its independent review pursuant to Anders v. California (1967) 386 U.S. 738. Rather, counsel requested that this court independently examine the record on appeal. We have reviewed the information provided by Flores and we have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

The trial court granted the petition of plaintiff and respondent Alma M. (grandmother) for grandparent visitation of now nine-year-old David A. (child) under Family Code section 3102.[1] Defendant and appellant Katrina T., child’s mother (mother), appeals, claiming section 3102 is unconstitutional both facially and as applied, the court erred in failing to apply the presumption of parental fitness to decide the best interest of her child, and grandmother did not show by clear and convincing evidence denial of visitation would be detrimental to the child. Finding no error, we affirm.

Plaintiffs Stephen and Robin Sedgwick appeal from a judgment in favor of defendants Bank of America Corporation, Bank of America, N.A., Countrywide Financial Corporation, Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems, Inc., and MERSCORP Holdings, Inc. (collectively defendants). Judgment was entered after the court sustained defendants’ demurrer to the fraudulent concealment cause of action in the second amended complaint (SAC) without leave to amend. In sustaining defendants’ demurrer to the causes of action in the first amended complaint for which it allowed leave to amend, the court limited the length of the SAC to 15 pages.
Plaintiffs argue the court abused its discretion in sustaining the demurrer to the SAC and in imposing the page limitation. They also maintain the court erred in ruling the fraudulent concealment cause of action was barred by the statute of limitations because defendants’ conduct tolled its accrual. They further assert Stephen’s failure to disclose potential claims against defendants on his Chapter 7 bankruptcy petition does not estop him from proceeding on the complaint. Finally, they contend they should have been given leave to amend.
We conclude there is no basis to reverse based on the page limitation, nor did the court err in sustaining the demurrer to the fraudulent concealment cause of action without leave to amend. Because we decide the case on these grounds we have no need to and do not address any of the other issues raised.

A modification decision.

Appellant, D.G., a minor, was initially adjudged a ward of the juvenile court on November 28, 2011, following her adjudication of robbery (Pen. Code, § 211). The court declared the offense to be a felony and placed appellant on probation.
On August 1, 2012,[1] appellant admitted allegations that she violated her probation by failing to attend and complete her court-ordered anger management program, obey directives of the probation department, obey all laws, and refrain from associating with her coparticipants in the robbery of which she was adjudicated. That same date, the court readjudged appellant a ward of the court, continued her on probation and ordered that she participate in the Girl’s Treatment Program.

On April 10, 2012, a jury found Alexander Leyva (appellant) guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and not guilty of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)).[1] In a bifurcated proceeding, the trial court found true allegations that appellant had a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (c)–(j); 1170.12, subds. (a)-(e)) and a prior prison term enhancement (§ 667.5, subd. (b)).
On May 8, 2012, the trial court struck the prior prison term enhancement and sentenced appellant to the low term of 16 months, doubled to 32 months pursuant to the three strikes law. The court imposed a restitution fine pursuant to section 1202.4, subdivision (b) of $240 and a suspended fine of the same amount pursuant to section 1202.45.
On January 1, 2012, an amendment to section 1202.4, subdivision (b) by the Legislature became operative and increased the minimum restitution fine from $200 to $240. Appellant contends, and respondent concedes, that his offense occurred prior to the operative date of the amendment and therefore imposition of the increased fine constitutes a violation of the ex post facto clause of the United States and California Constitutions. We agree and will reverse the trial court’s restitution fine.

This case arises from a construction dispute. A homeowner testified that defendant did not competently complete portions of a construction contract for which he was paid. Defendant testified that the homeowner improperly used his contractor’s license without his knowledge, refused to provide him with construction plans and mischaracterized his role in the project. Defendant also denied diverting any funds.
Defendant was convicted of felony diversion of construction funds. (Count I – Pen. Code,[1] § 484b.) After sentencing, the Attorney General moved the trial court to revoke defendant’s contractor’s license. (See Bus. & Prof., §§ 7090, 7106.) The trial court granted the motion.
The applicable version of section 484b distinguished between felony and misdemeanor violations based on whether the defendant diverted funds “in excess of $1,000.” Defendant contends that the court was required to submit to the jury the issue of whether the diverted funds were “in excess of $1,000,” and that its failure to do so was error. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 489 (Apprendi).) We agree, but find the error harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326 [Chapman[2] standard applies].)
The evidence at trial suggested that defendant committed more than one discrete violation of section 484b, yet only one count was charged. The trial court did not issue a unanimity instruction, and defendant contends this was error. We agree. We are unable to conclude that this error was harmless beyond a reasonable doubt, and therefore reverse.
Defendant also contends that the manner in which the court revoked his contractor’s license violated his right to due process. Because we reverse the conviction on which it was based, we reverse the revocation order without reaching the due process contention.

A jury convicted defendant Robert Gerard Magdaleno of count 1, unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a), and count 3, receiving stolen property, in violation of section 496, subdivision (a). The jury found defendant not guilty of count 2, receiving the stolen vehicle, in violation of section 496d, an alternative to count 1. Defendant admitted four prison priors and a strike prior.
The trial court sentenced defendant to a total term of 10 years in state prison. The court imposed a term of six years on count 1, imposed and stayed one year four months on count 3, and imposed one year on each of the four prison priors, consecutive to the six-year term. The court also determined defendant had 405 days credit for time served before sentencing, plus an additional 202 days pursuant to section 4019, for a total of 607 days.
On appeal, defendant argues the trial court abused its discretion in admitting evidence of other suspected stolen property. Defendant also seeks additional custody credits under section 4019. We reject defendant’s contentions and affirm the judgment.

This case involves defendants and appellants, Jose A. Lopez Gonzalez (Gonzalez) and his wife, Judith Mendez Lopez (Lopez). A jury found Gonzalez and Lopez (collectively “defendants”) guilty of seven counts each of knowingly owning a mischievous animal that caused serious bodily injury to a human being. (Pen. Code, § 399, subd. (b).)[1] The trial court sentenced defendants to prison for terms of four years, four months.
Lopez raises six issues on appeal. First, Lopez contends there is not substantial evidence she knew her dogs were vicious. Second, Lopez asserts substantial evidence does not support two of the four convictions related to the victim Destiny, because the evidence reflects Destiny was bitten by only two dogs. Third, Lopez contends her sentences for all but one of her convictions should have been stayed pursuant to section 654. Fourth, Lopez contends the multiple convictions violate the law against double jeopardy because she committed only one negligent act. Fifth, Lopez asserts the trial court erred in instructing the jury on the knowledge element of the offense. (CALCRIM No. 2950.) Sixth, Lopez contends the trial court erred by not instructing the jury on the law of unanimity. We affirm the judgment.
Gonzalez raises three issues on appeal. First, Gonzalez asserts substantial evidence does not support the finding he knew his dogs were vicious prior to the attack. Second, Gonzalez contends the evidence does not support a finding Destiny was bitten by four dogs. Third, Gonzalez contends the trial court erred in instructing the jury on the knowledge element of the offense. (CALCRIM No. 2950.) We affirm the judgment.