CA Unpub Decisions

Max Astan successfully intervened in this marital dissolution action, which concerns the marriage of Marjaneh and Hushang Molayem.[1] His complaint-in-intervention (the complaint) alleges a cause of action for declaratory relief against the Molayems and other defendants. The court sustained without leave to amend the demurrers of Hushang and another defendant-in-intervention, R & D Development (R&D). Astan appeals from the judgment dismissing his complaint. We hold the demurrers should have been sustained with leave to amend and reverse and remand on that ground.

Appellant Angel Christopher Rojas was convicted, following a jury trial, of first degree murder in violation of Penal Code[1] section 187, subdivision (a), shooting at an occupied motor vehicle in violation of section 246, actively participating in a street gang in violation of section 186.22, subdivision (a), and possession of a firearm in violation of section 12021, subdivision (d)(1). The jury found true the allegations that appellant committed the murder, shooting and firearm possession for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (a). The jury also found true the allegations that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53 subdivisions (d) and (e)(1) and that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (d). The trial court sentenced appellant to a total term of 50 years to life in state prison, consisting of 25 years to life for murder plus 25 years to life for personally discharging a firearm. Sentence for the section 246 conviction and other enhancements was stayed pursuant to section 654. Sentence on the active participation and firearm activity convictions was imposed concurrently.

A jury convicted defendant and appellant John James Sparks of one count of vehicular burglary and one count of possession of burglar’s tools. The sole issue on appeal is defendant’s contention his trial counsel was ineffective within the meaning of the Sixth Amendment for failing to file a motion to suppress evidence. We conclude defendant has failed to establish a claim of ineffective assistance of counsel, and therefore affirm.

Defendant Johnny Villalobos was charged with the murder of Juan Valdez. At trial, Villalobos admitted he aimed a pistol toward Valdez’s chest and fired a single shot. He testified, however, that he shot Valdez because he had been attacked and was in fear for his life. The jury convicted Villalobos of first degree murder and found true special allegations related to firearm and gang enhancements.
On appeal, Villalobos argues that the trial court’s use of the 1996 versions of CALJIC numbers 8.71 and 8.72, which instructed the jury on deciding between greater and lesser offenses, violated his due process rights and his right to jury by trial. He further asserts that there was insufficient evidence to support a true finding on the gang enhancement. We reverse the judgment and remand for further proceedings, concluding that the gang enhancement was not supported by substantial evidence.

In this action for medical negligence, plaintiff Jonathan Doyle appeals from a judgment entered in favor of defendant Michael Shapiro, M.D., entered after a jury found in Dr. Shapiro’s favor. Doyle contends he should have been granted a new trial based on surprise testimony by Dr. Shapiro that prejudiced Doyle’s ability to have a fair trial and also raises various contentions of evidentiary and instructional error. Because we conclude that none of these contentions has merit, we affirm the judgment.

Mark and Eleanor De Los Cobos were married on May 19, 1990 and separated more than 15 years later on August 1, 2005.[1] They had no children. Mark filed a petition for dissolution of marriage on November 21, 2008, and Eleanor filed her response on February 10, 2009. After a trial on September 13, 2011, the trial court entered a judgment dissolving the marriage and adjudicating various property rights. In this appeal Eleanor challenges only the court’s findings that the parties’ family residence, which Mark quitclaimed to Eleanor as her separate property, was community property, and that each party received half of the proceeds of an investment property that Mark sold in 2006. We affirm in part and reverse in part.

Appellant Leticia V. appeals from the order denying her motion to reconsider: (1) an order denying a motion to vacate a stipulation she was not married to respondent Jonathan A.; and (2) a request for attorney’s fees. As will be discussed, this court does not have jurisdiction to reach the merits of the issues on appeal because appellant is appealing from a non-appealable order. Accordingly, we dismiss the appeal.

Defendant and appellant Pedro Ramirez Salas appeals from the execution of a suspended sentence on a 2005 robbery conviction following a probation revocation hearing in 2011. Defendant contends the summary revocation of probation in 2006 on the ground he had absconded was unlawful since he had been deported and did not willfully fail to report to probation. Since the summary revocation of probation was unlawful, he claims, the probationary period was not tolled. He further argues his 2011 assault conviction, suffered after his return to this country, occurred after probation expired in the 2005 case, so the court lacked jurisdiction to execute sentence on the 2005 robbery conviction solely on the basis of that new conviction. In his opening brief before this court, defendant principally relies on People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia) and its interpretation of the tolling provision contained in Penal Code section 1203.2, subdivision (a).[1]

Appellant Elenore A. Williams filed her original complaint, in pro. per., on November 6, 2008, against Danny Tartabull, John S. San Nicolas, Theresa San Nicolas, Centurion Capital, LLC and a number of Does. The gravamen of the complaint was that appellant had been fraudulently deprived of her home located at 3974 Dublin Avenue, Los Angeles. Demurrers to this complaint were sustained and six more complaints followed; parties were added along the way.
This opinion addresses three separate appeals that we will refer to by the respondents’ names. They are the Chicago Title Company appeal (Chicago Title), the Saxon Mortgage Services, Inc., appeal (Saxon) and the NovaStar Home Mortgage, Inc., appeal (NovaStar). We have consolidated these appeals on our own motion for purposes of oral argument and the opinion and decision.
The Chicago Title appeal, while without merit, is the most substantial. Accordingly, we take it up first and, in doing so, provide the larger background for these three appeals. Discussion of the Saxon and NovaStar appeals follow. We find no merit in any of these three appeals and therefore affirm the judgments.

Petitioner J.B. is the mother of B.B., a two-year-old dependent child of the juvenile court. Petitioner (Mother) seeks writ relief (Cal. Rules of Court, rule 8.452) to set aside the juvenile court’s order terminating reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26).[1] The juvenile court found that returning B.B. to Mother would create a substantial risk of harm to the child. Mother contends this finding is not supported by substantial evidence and that the juvenile court improperly shifted the burden of proof. We disagree with Mother and deny the petition on the merits.

Vehicle Code section 23136,[1] the “zero tolerance law,” makes it unlawful for a person under the age of 21 to drive a vehicle with any measurable blood alcohol concentration (BAC).[2] Respondent Sean Erik Gibb, then 18 years old, was stopped by police while driving. An officer administered preliminary alcohol screening (PAS) breath tests, which showed that Gibb’s blood alcohol level was well in excess of the measurable threshold of .01 percent. The officer temporarily suspended Gibb’s driver’s license and reported the matter to the Department of Motor Vehicles (Department or DMV). (§§ 13380, subd. (a); 13388, subd. (b).) Gibb requested a DMV administrative hearing on the license suspension, and the hearing officer reimposed the suspension.
Gibb petitioned for a writ of mandate to overturn the license suspension, arguing that no admissible evidence was presented on the reliability of the blood alcohol test results and the officer’s sworn statement certifying the results was insufficient to establish reliability. The trial court granted the petition, and the Department appeals. We reverse.

Christopher Dean Simmons appeals following a jury verdict that found him guilty of a single count felony violation of Penal Code section 422: making a criminal threat. He argues that the trial court committed constitutional error when it sustained an objection to a chart addressed to the reasonable doubt standard of proof that his counsel wished to use during closing argument. He also claims that the trial court erred when it failed to award him credit for all his presentence time in custody in this case.
We conclude that the trial court’s exclusion of the chart was not an abuse of discretion, and that its exclusion did not have constitutional implications. We also conclude that the court should have awarded Simmons full credit for his presentence time in custody. Thus, we modify the abstract of judgment to reflect the proper award of credits and, as modified, affirm the judgment.

This appeal involves attorney fees awarded under Code of Civil Procedure section 1021.5 (section 1021.5), arising out of environmental and land use challenges to the construction of a new hospital and medical office building in Santa Rosa.[1] The trial court granted in part, and denied in part, appellants’ motion for attorney fees, and awarded $56,459.16, which was considerably less than the $668,386 appellants had requested. On appeal, appellants claim the court abused its discretion in failing to “follow the settled law under Section 1021.5,” which would have resulted in an award of “fully [sic] compensatory attorneys’ fees” to appellants. Sutter has filed a cross-appeal challenging the trial court’s determination that appellants were successful parties as defined by section 1021.5, and therefore entitled to any attorney fees whatsoever.[2]
With respect to the cross-appeal, we find the trial court did not abuse its discretion in finding that appellants were entitled to attorney fees under section 1021.5. With respect to appellants’ challenge to the amount of attorney fees awarded, our review of the appellate record has located no instance in which the court failed to follow the applicable rules of law governing an award of attorney fees under section 1021.5. In addition, we conclude that the amount of the attorney fees awarded was within the range established by the discretionary authority granted to the court. As a result, we affirm the trial court’s order.

In a series of transactions which the trial court aptly characterized as “very convoluted” and “confusing,” appellant Gary Bridgewater and respondent Jack Harte sought to acquire equity interests in a firearms business owned by Tyler Jones, a licensed firearms dealer. In April 2008, all three parties signed a written agreement purporting to allocate interests in the business, with Harte receiving cash from Bridgewater and a promissory note from Bridgewater and Jones. Neither Harte nor Bridgewater held a firearms license. Jones ultimately sold the store’s inventory without notice to Harte or Bridgewater, closed the business and absconded. Harte then sued Bridgewater and Jones seeking to recover on the promissory note, and Bridgewater cross-complained for rescission and restitution of the cash paid to Harte. Following a bench trial, the trial court granted judgment to Harte on the promissory note, and denied recovery to Bridgewater.
We conclude that the parties’ agreement was an illegal contract that recognized ownership in and transferred ownership to persons who were not licensed to own or operate a firearms dealership. Therefore, the contract is unenforceable and neither Harte nor Bridgewater is entitled to relief.[1]