CA Unpub Decisions

On October 3, 2011, defendant Joseph James Zimmerman pled no contest to possession of a writing pen knife (former ADDIN BA xc <@st> xl 32 s FKKPCD000001 xpl 1 l "Pen. Code, § 12020, subd. (a)(1)" Pen. Code, § 12020, subd. (a)(1))[1] in case No. P11CRF0479 and was placed on three years’ probation.
On November 28, 2011, defendant pled no contest to possession of methamphetamine ( ADDIN BA xc <@st> xl 27 s FKKPCD000003 xpl 1 l "Health & Saf. Code, § 11377" Health & Saf. Code, § 11377, subd. (a)) in case No. P11CRF0562 and admitted violating his probation in case No. P11CRF0479. The trial court reinstated probation and ordered defendant to serve 90 days in jail.
On October 15, 2012, defendant admitted violating his probation in both cases. The trial court sentenced defendant to two years in state prison in case No. P11CRF0479 and imposed a concurrent two-year term in case No. P11CRF0562.
On appeal, defendant contends the trial court erred in failing to sentence him pursuant to the county jail provisions of the ADDIN BA xc <@st> xl 40 s FKKPCD000004 l "Criminal Justice Realignment Act of 2011" Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53; and Stats. 2011, 1st Ex. Sess., ch. 12, § 35; hereafter Realignment Act). Agreeing with defendant, we vacate the sentence and remand for resentencing pursuant to ADDIN BA xc <@osdv> xl 29 s FKKPCD000013 l "section 1170, subdivision (h)" section 1170, subdivision (h).

Following a contested jurisdictional hearing, the juvenile court sustained a delinquency petition alleging the minor Andrew W. had committed first degree burglary (Pen. Code, § 459). The juvenile court declared the minor a ward of the court and placed him on probation.
On appeal, the minor contends there is insufficient evidence to support the jurisdictional finding, and trial counsel was ineffective for failing to object to the pretrial identification procedure. We shall affirm.

Plaintiff Joann Morrison was terminated from her employment with the Department of Corrections and Rehabilitation (the Department) at California’s Pelican Bay State Prison after a random drug test revealed the presence of marijuana in her system. The State Personnel Board (the Board) upheld the termination.
Plaintiff appeals from the trial court’s judgment denying her petition for a writ of mandate seeking to overturn the Board’s decision. She contends the findings and conclusions of the Board are not supported by substantial evidence; the Board misapplied federal law in finding her guilty of other failure of good behavior; and the penalty of dismissal is inappropriate. We disagree with plaintiff’s contentions and affirm the judgment.

Defendant Robert Wayne Thompson appeals the judgment entered following the revocation of his probation and the imposition of a previously suspended seven-year sentence. Defendant contends the introduction at the probation revocation hearing of Proposition 115 hearsay testimony without a finding of good cause violated his right to confront witnesses, and trial counsel performed ineffectively in failing to object to the evidence. We shall affirm the judgment.

Plaintiffs Randy and Linda Tindell bought a house listed by defendant real estate agents John Shaw, Kari Moore, and Susanville Real Estate (defendants) in 2005 for $320,000. In 2009 the Tindells were unable to refinance the mortgage because it is a manufactured home, not a modular home. The Tindells filed a second amended complaint against defendants for fraud, negligent misrepresentation, and constructive fraud. The trial court sustained defendants’ demurrer to the second amended complaint without leave to amend. The Tindells appeal, arguing the trial court erred in sustaining the demurrer and in doing so without leave to amend. We shall affirm the judgment.

M.B., the mother of D.J., appeals from a Welfare and Institutions Code sections 300 and 361 dependency orders. The mother contends there was noncompliance with the Indian Child Welfare Act and related California provisions. The Department of Children and Family Services agrees. We agree likewise. (In re Marinna J. (2001) 90 Cal.App.4th 731, 736-740; In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472.) Upon remittitur issuance, the juvenile court is to comply with the with the federal Indian Child Welfare Act requirements and related state provisions. We need not reverse the dispositional order. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187; In re Brooke C. (2005) 127 Cal.App.4th 377, 385.). We leave the issue of what to do if a tribe asserts jurisdiction over the child in the good hands of the juvenile court.
The orders under review are affirmed and the cause is remanded for compliance with the federal Indian Child Welfare Act requirements

A jury convicted defendant, Deqiang Song, of kidnapping for ransom and willful, deliberate, premeditated attempted murder in counts 1 and 2 respectively. (Pen. Code,[1] §§ 209, subd. (a), 664, 187, subd. (a).) The jury found that in the commission of the kidnapping for ransom, defendant: caused the victim, Ling S., to suffer bodily harm; intentionally confined her in a way that created a substantial risk of death; and personally used a deadly and dangerous weapon, a knife. (§§ 209, subd. (a), 12022, subd. (b)(1).) The jury further found that in the commission of the attempted murder, defendant personally used a knife and inflicted great bodily injury. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).) Defendant was sentenced to an indeterminate term of life without the possibility of parole on count 1. Defendant was consecutively sentenced to an indeterminate life term and a determinate four-year term on count 2. We modify the judgment as to assessments and presentence custody credit. We remand in order for the trial court to impose or strike the personal knife use enhancement (§ 12022, subd. (b)(1)) as to count 1. We affirm the judgment in all other respects.

Appellant Mario Gutierrez appeals from the judgment entered following his conviction on two counts of attempted criminal threats (Pen. Code,[1] §§ 664, 422). Gutierrez argues the trial court erred in admitting evidence of his membership in a gang and his alleged attempts to intimidate the complaining witnesses. Gutierrez also asserts the evidence was insufficient to support each of his convictions because the prosecution failed to prove he had a specific intent to communicate a criminal threat. We affirm.

The trial court granted summary judgment on the basis that plaintiff and appellant Maximum Engineering, Inc., lacked standing and was judicially estopped from bringing an action for breach of warranty against defendants and respondents Quinn Group, Inc., and Caterpillar, Inc., because the warranty claim was not listed on Maximum’s schedule of assets in a now-closed bankruptcy action. Motions for reconsideration and to amend the complaint to add the former bankruptcy trustee as a coplaintiff were denied.
Maximum appeals from orders denying reconsideration and to amend the complaint and granting summary judgment in favor of defendants.[1] This issue presented is whether Maximum or the former trustee had standing to bring the action. We hold summary judgment was properly granted on the ground that Maximum lacked standing to bring the action, the trial court did not abuse its discretion in denying the motion for reconsideration, and the former trustee also lacked standing because the bankruptcy case had been closed and he had been discharged.

The trial court granted summary judgment on the basis that plaintiff and appellant Maximum Engineering, Inc., lacked standing and was judicially estopped from bringing an action for breach of warranty against defendants and respondents Quinn Group, Inc., and Caterpillar, Inc., because the warranty claim was not listed on Maximum’s schedule of assets in a now-closed bankruptcy action. Motions for reconsideration and to amend the complaint to add the former bankruptcy trustee as a coplaintiff were denied.
Maximum appeals from orders denying reconsideration and to amend the complaint and granting summary judgment in favor of defendants.[1] This issue presented is whether Maximum or the former trustee had standing to bring the action. We hold summary judgment was properly granted on the ground that Maximum lacked standing to bring the action, the trial court did not abuse its discretion in denying the motion for reconsideration, and the former trustee also lacked standing because the bankruptcy case had been closed and he had been discharged.

The parties to this lawsuit were involved in an attempt to create an E-Commerce Company Store (ECS) designed to allow employees to make on-line purchases of items including those bearing the internal branding and logos of their employer. The parties hoped to market the ECS to nonparty SuperValu for use by the approximately 200,000 employees of SuperValu and its subsidiaries. SuperValu never gave final approval and none of the parties realized any profit. The present lawsuit was filed by one of the joint venturers against its former associates. The allegations are breach of contract, quantum meruit and fraud, resulting in claimed damages in excess of $5 million. The trial court denied a motion to compel discovery brought by plaintiff and granted all defendants’ summary judgment motions on multiple grounds. Judgments in favor of defendants were entered and plaintiff appeals. We affirm.

Appellant Michael Angel Serrato appeals from the judgment entered following his conviction of kidnapping to commit oral copulation or rape (Pen. Code,[1] § 209, subd. (b)(1)), making criminal threats (§ 422), forcible oral copulation (§ 288a, subd. (c)(2)), forcible rape (§ 261, subd. (a)(2)), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), and false imprisonment by violence (§ 236). Serrato’s sole contention on appeal is that his trial counsel rendered ineffective assistance in failing to object to evidence of a knife recovered from his vehicle following his arrest, which the victim testified was not the weapon used in the commission of the crimes. Because there is no reasonable probability that Serrato would have achieved a more favorable result had his trial counsel objected to the admission of such evidence, we affirm.

A jury fails to reach a verdict. Three of the four jurors who vote to acquit the defendant are African-American women. Upon retrial, the prosecutor uses four of his first eight peremptory challenges to strike African-American women from the jury. For one of the African-American women whom he strikes, he offers three justifications in response to the African-American defendant’s motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler): two of those reasons apply to a non-African-American woman in the jury box whom the prosecutor does not strike, and the third reason draws little, if any, support from the record. The court accepts the prosecutor’s reasons and denies the defendant’s Wheeler motion. We reverse.

John Donohue, Elizabeth Donohue (also sometimes referred to in the record before us as Elizabeth Flynn), Heather Donohue, and Kerry Donohue (appellants) appeal from the trial court’s denial of their motion for attorney fees. The motion was made following the pretrial voluntary dismissal of respondent Regina Flanagan’s (Flanagan) cross-complaint against appellants, and after appellant John Donohue filed for bankruptcy. Appellants raise a number of contentions asserting that the trial court erred in denying their motion. However, the dispositive issue is whether the trial court erred in its conclusion that, even if appellants were otherwise entitled to bring a motion under Civil Code section 1717 (section 1717), they were not entitled to attorney fees, because Flanagan voluntarily dismissed her cross-complaint before trial under Code of Civil Procedure section 581, subdivision (b)(1).
We agree with the trial court, and affirm the order denying attorney fees.