CA Unpub Decisions

Muayed Salim Salih appeals his jury convictions for assault with a deadly weapon other than a firearm (Pen. Code,[1] § 245, subd. (a)(1)), and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)). The court imposed a $154 booking fee on Salih under Government Code section 29550.1. It placed him on probation for three years and ordered him to serve one year in jail. The court awarded him 26 conduct credits under section 4019.
Salih contends the court (1) prejudicially erred by not instructing the jury sua sponte on unanimity; (2) miscalculated his presentence custody credits; and (3) imposed a booking fee without finding an ability to pay, and the latter failure violated his constitutional right to equal protection. We affirm.

A jury found defendant and appellant Emmanuel Donteze Williams guilty of (1) nine counts of robbery (Pen. Code, § 211);[1] (2) one count of attempted robbery (§§ 664, 211); (3) one count of kidnapping for the purpose of committing robbery (§ 209, subd. (b)(1)); and (4) one count of assault with a deadly weapon (§ 245, subd. (a)(1)). For eight of the robbery counts, the attempted robbery count, and the kidnapping count, the jury found true the enhancement allegation that defendant used a firearm during the commission of the crimes pursuant to section 12022.53, subdivision (b). As to the assault count, the jury found true the enhancement allegation that defendant personally used a firearm during the commission of the offense pursuant to section 12022.5, subdivision (a). The trial court sentenced defendant to prison for a determinate term of 58 years, 2 months, and an indeterminate term of life with the possibility of parole.
Defendant raises four issues on appeal. First, defendant asserts the evidence supporting his assault conviction does not meet the substantial evidence standard. Second, defendant contends the evidence supporting his kidnapping conviction does not meet the substantial evidence standard. Third, defendant asserts the trial court erred by denying his motion to suppress evidence and traverse the search warrant. Fourth, defendant contends his trial attorney rendered ineffective assistance during the hearing on the motion to suppress evidence. We affirm the judgment.

In this marital dissolution action, the court ordered temporary custody of the parties' two minor children, Emily, who was 15 at the time of the hearing, and Lukas, who was 10 at the time of the hearing, to their father, Eric Svendsen, with an 82 percent visitation share to father. The court also made orders for spousal support and child support.
Ann C. Svendsen appeals that ruling, asserting the court erred in accepting the recommendation of Family Court Services as to custody because it was based upon a "lack of evidence" and "misinterpreted evidence." Eric contends the temporary custody order is not an appealable order.
For reasons we shall explain, we dismiss this appeal because an interim custody determination is not an appealable order.

Robert D. was accused by a petition filed in the juvenile court of possessing a butterfly knife, alleged as a misdemeanor. (Pen. Code, §§ 21310 & 17, subd. (b)(4).) Following the denial of his motion to suppress evidence on Fourth Amendment grounds, Robert admitted the allegations in the petition. He was declared a ward of the juvenile court and placed with his mother.
Robert appeals contending the trial court erred in denying his motion to suppress evidence. We will find his detention and arrest to be proper and affirm.

A jury convicted Thomas Corsini of one count of residential robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A))[1] while a principal was armed with a firearm (§ 12022, subd. (a)(1)); one count of resisting a peace officer (§ 148, subd. (a)); and one count of possession of a billy (§ 22210). The trial court sentenced Corsini to prison for a term of four years eight months and ordered Corsini to pay $1,300 in direct victim restitution.
Corsini contends that (1) his conviction for possession of a billy should be reversed because the statute under which he was convicted violates the Second Amendment to the United States Constitution; and (2) the restitution order should be modified to specify that the liability is joint and several as to other persons also convicted for the residential robbery. We conclude that Corsini has forfeited both arguments by failing to raise them in the trial court, and accordingly we affirm the judgment.

Muayed Salim Salih appeals his jury convictions for assault with a deadly weapon other than a firearm (Pen. Code,[1] § 245, subd. (a)(1)), and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)). The court imposed a $154 booking fee on Salih under Government Code section 29550.1. It placed him on probation for three years and ordered him to serve one year in jail. The court awarded him 26 conduct credits under section 4019.
Salih contends the court (1) prejudicially erred by not instructing the jury sua sponte on unanimity; (2) miscalculated his presentence custody credits; and (3) imposed a booking fee without finding an ability to pay, and the latter failure violated his constitutional right to equal protection. We affirm.

Cross-complainant Robert F. Bates, trustee of the Robert F. Bates Family Trust dated 11-29-90 (Bates) appeals a judgment after the trial court granted the motion for summary judgment filed by cross-defendant Chicago Title Company (CT) in his negligence cross-action against it. Bates alleges CT was negligent in preparing a deed of trust to replace one he had previously reconveyed. On appeal, Bates contends the trial court erred by concluding CT did not owe him a legal duty of due care in preparing the replacement trust deed. Because we conclude there are triable issues of material fact regarding whether CT undertook to, and did, prepare the trust deed and the nature and extent of any concomitant undertaking, we conclude the trial court erred by granting CT's motion for summary judgment.

Defendant Martin Zane Fullmer entered a negotiated plea of no contest to committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)--count I; unless otherwise stated, all statutory references that follow are to the Penal Code) in exchange for dismissal of another count charging the same conduct on the same victim on another occasion (count II) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey) and a sentencing lid of the midterm of six years. With the prosecutor’s agreement, defendant reserved the right to argue for probation. The court denied probation and sentenced defendant to state prison for the midterm of six years. Defendant appeals. He contends the trial court abused its discretion in denying probation and in declining to impose the mitigated term of three years. We affirm the judgment.
Facts and Proceedings

Defendant and appellant Jose Garcia Moreno entered a no contest plea to committing a lewd and lascivious act on a child under the age of 14 in violation of Penal Code section 288.[1] Under the terms of the plea agreement, defendant would receive a suspended sentence of eight years in state prison, with probation for five years, contingent on defendant receiving a favorable psychological evaluation report under section 288.1.[2] If the section 288.1 report was unfavorable, defendant would receive the low term of three years in state prison. Two remaining charges were to be dismissed pursuant to the plea agreement.

Defendant Kimberly Angelos appeals from the judgment entered after her no contest plea to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). A second possession count was dismissed. Defendant was placed on Proposition 36 probation for one year and was assessed various fines and fees.
This appeal is from the denial of defendant’s motion to suppress evidence under Penal Code section 1538.5. Her appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On February 14, 2013, we directed appointed counsel to send the record and a copy of counsel’s brief to defendant and notified defendant of her right to respond within 30 days. We received no response.

Plaintiff and appellant Joel Bander (plaintiff) brought an invasion of privacy action against defendants and respondents Balita Media, Inc. (Balita), Anthony Allen, Luchie Mendoza Allen, and Rhony Laigo (collectively defendants) based upon articles published in defendants’ news publications and/or news Web sites. Defendants responded by filing a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16,[1] California’s anti-SLAPP[2] statute. Plaintiff opposed defendants’ motion, arguing, inter alia, that the anti-SLAPP statute does not apply pursuant to section 425.17. The trial court granted defendants’ motion, and plaintiff appeals.
Plaintiff established that, pursuant to section 425.17, subdivision (c), defendants were precluded from bringing an anti-SLAPP motion. The burden then shifted back to defendants to establish that section 425.17 did not apply. Because defendants did not satisfy their burden pursuant to section 425.17, subdivision (d)(2), we reverse.

In this action for wrongful death and related claims, plaintiffs’ and appellants’ 65 heirs appeal from the order of February 15, 2012, dismissing their action against Dole Food Company, Inc., under Code of Civil Procedure section 581, subdivision (f)(2),[1] and judgment of July 2, 2012, in favor of Dole following the denial of plaintiffs’ motions to set aside the dismissal under section 473 and for relief from a cost bond order under section 1030. Plaintiffs contend the orders dismissing the action and denying mandatory relief from dismissal under section 473, subdivision (b) were erroneous as a matter of law. Plaintiffs further contend the denial of relief from cost bond was an abuse of discretion. We reverse.

On the night of January 26, 1994, Kevin Bernard Smith entered a home in Studio City, where he shot and killed Rupert Thompson and seriously wounded Dorothy Thompson in their bedroom. Smith then ransacked the house and fled with some jewelry. Smith appeals from a judgment entered following his conviction by a jury on one count of first degree murder and one count of attempted willful, deliberate and premeditated murder. The jury also found true two special circumstances allegations related to the murder count—that Smith had committed the murder while engaged in the commission of a robbery and engaged in the commission of a burglary (former Pen. Code, § 190.2, subds. (a)(17)(i) & (vii)).[1] In addition the jury found true firearm-use enhancement allegations (§ 12022, subd. (a)(1)) as to both counts and a great-bodily-injury enhancement allegation (§ 12022.7, subd. (a)) as to the attempted murder count. Smith contends the imposition of the two enhancements on the attempted murder count was improper. We affirm.

In this matter, plaintiff Mary R. Gonsalves did not oppose a demurrer of defendant Deutsche Bank National Trust Company (Deutsche Bank), amend her complaint after the demurrer was sustained with leave to amend, or oppose Deutsche Bank’s subsequent motion to dismiss. Gonsalves now appeals from the judgment entered after the court granted the motion to dismiss, contending that she had been “justified” in failing to oppose the demurrer because codefendant JMO, Inc., had filed a notice of automatic stay and that the court had erred in dismissing the case with prejudice. We disagree because Deutsche Bank did not have an identity of interest with JMO, Inc., and the case properly was dismissed with prejudice when Gonsalves did not amend. We affirm the judgment.