CA Unpub Decisions

Appellant Leroy A. Williams challenges his conviction for three counts of first degree robbery and one count of attempted first degree robbery, arguing the trial court’s elaboration on the prosecution’s burden of proof during jury selection lessened that burden in violation of his constitutional right to due process. We disagree and affirm.

Plaintiff Thrifty/Payless, Inc. (Thrifty) dba Rite Aid, is a tenant of defendant Americana at Brand’s (Americana) eponymous shopping center in Glendale. Negotiations held through letters of intent before the execution of Thrifty’s lease contained Americana’s per square foot estimates concerning Thrifty’s probable pro rata share of property taxes, insurance, and common area maintenance (CAM). The final lease stated that Thrifty would pay its pro rata share of such expenses and did not contain any formulas, figures or percentages regarding Thrifty’s share of such expenses. After Thrifty moved into the shopping center, its share of these expenses substantially exceeded Americana’s estimates and Thrifty sued for fraud, rescission based mutual mistake and mistake of fact, and breach of lease and breach of the implied covenant of good faith and fair dealing. The trial court granted Americana’s demurrer without leave to amend, finding that the prior negotiations constituted estimates and could not be statements of fact upon which a claim of fraud could be based, and Thrifty failed to allege facts establishing innocent misrepresentation, mistake, breach of lease, and breach of the implied covenant of good faith and fair dealing. We reverse.

A jury convicted Daniel Navarro, Francisco Navarro, and Juan Portillo of one count of first degree murder (count 1; Pen. Code, § 187, subd. (a)),[1] and two counts of attempted premeditated murder (count 2; §§ 664, 187, subd. (a)), with findings as to all three counts that the offenses were committed for the benefit of a criminal street gang (§ 186.22 (b)(1)(C)). The trial court sentenced both Francisco Navarro and Juan Portillo to serve an aggregate term of 55 years to life in the state prison, comprised of a term of 25 years to life for the murder and consecutive terms of 15 years to life for the attempted murders. The court sentenced Daniel Navarro to serve an aggregate term of 58 years to life in the state prison. He received more time for prior convictions with a prison term. All three defendants appeal. We affirm all three judgments.

In a marital dissolution, a former spouse challenges the judgment following a trial on reserved issues. Some of the court’s orders are supported by substantial evidence; however, two of its rulings regarding (1) the value of a Harley-Davidson motorcycle, and (2) the division of the parties’ knife collection are not supported by the evidence. We reverse the judgment and remand for further proceedings.

Monique L. (Mother) appeals from orders entered after the Marin County juvenile court sustained a Welfare and Institutions Code section 387[1] supplemental petition filed by respondent Marin County Health and Human Services Department (the Department). The juvenile court found its previous disposition had been ineffective in protecting Mother’s three children, E, S, and N (collectively “Minors”), and it ordered them removed from Mother’s custody. E and N were placed with their maternal grandmother, L.T. (Grandmother), while S was placed with his father, Kenneth C. (Father).[2]
Mother challenges a number of the juvenile court’s findings as unsupported by the evidence. We have reviewed the evidence in the record and conclude it adequately supports the juvenile court’s orders. Accordingly, we will affirm.

A supplemental juvenile wardship petition pursuant to Welfare and Institutions Code section 602 alleged defendant had committed a number of crimes, including conspiracy to commit a robbery (Pen. Code, § 182, subd. (a)(1))[1] and petty theft (§§ 484, 488). The juvenile court denied defendant’s motion to suppress his confession to the police. At the conclusion of the jurisdictional hearing, the court found true seven allegations of petty theft and one allegation of conspiracy to rob.
On appeal, defendant contends that the juvenile court erred when it denied his motion to exclude his confession to the police because, according to defendant, his confession was coerced and his waiver of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) was not voluntary. He also maintains that substantial evidence did not support his convictions and that the juvenile court lacked subject matter jurisdiction over three of the petty theft convictions. We conclude that substantial evidence did not support the true findings on two of the counts of petty theft but otherwise affirm the jurisdictional and dispositional orders.

This appeal has been taken from the trial court’s ruling that granted plaintiff’s motion for summary judgment and the subsequent entry of judgment in favor of plaintiff in an action for breach of a loan guaranty agreement. Appellant claims the agreement was not supported by consideration, and breach of the agreement did not cause damages to plaintiff. He also challenges the liquidated damages provision of the agreement as an unenforceable penalty. We conclude that the loan and guaranty modification was supported by consideration, the breach of the agreement by failure to pay the loan caused plaintiff damages, and the damages provision was not unreasonable. We therefore affirm the judgment.

Plaintiff Ernest Jones brought this action against defendant City of Ukiah (City) alleging he was injured in a softball game on a field owned by the City. The trial court granted the City’s motion for summary judgment on the ground that plaintiff was bound by a release he had signed. The court thereafter entered a judgment of dismissal. Plaintiff contends on appeal that he was not bound by the release because its contractual nature was not clear, and that in any case, the release could not exculpate the City from liability for gross negligence or statutory liability for dangerous condition of public property. We shall affirm the judgment.

Appellant Victor James Wellen was convicted of five counts of lewd conduct with a child, one count of kidnapping a child under the age of 14, and one count of kidnapping a child for the purpose of committing a lewd act. He contends there is insufficient evidence to support one of the kidnapping counts, and the trial court erred in admitting sexually-oriented evidence that was found on his computer. Finding these contentions unmeritorious, we affirm the judgment.

On September 25, 2012, the court sustained allegations in a petition (Welf. & Inst. Code, § 602) charging appellant, Anthony N., with resisting arrest (Pen. Code, § 148, subd. (a)(1)).
On October 25, 2012, the court adjudged appellant a ward of the court and placed him on probation.
On appeal, Anthony contends there is insufficient evidence to support the court’s finding that he violated Penal Code section 148, subdivision (a)(1). We affirm.

In this action, Hernandez sued Charles R. Levatino, who represented Wife in the divorce. Hernandez’s complaint and opening brief are very difficult to understand. It appears Hernandez alleges the trial court appointed Levatino a trustee for Hernandez and, as a result, Levatino owed Hernandez a fiduciary duty. Levatino allegedly breached this fiduciary duty when the marital assets were sold and/or divided.
Levatino filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, subdivision (b)(1),[1] alleging that Hernandez’s complaint was a strategic lawsuit against public participation (hereafter SLAPP). The trial court concluded that the causes of action in Hernandez’s complaint arose from statements and actions occurring in a judicial proceeding (id., subd. (e)(1)), and there was no possibility Hernandez would prevail on the merits of the claim (id., subd. (b)(1)). Accordingly, it granted Levatino’s motion, struck Hernandez’s complaint, entered judgment in favor of Levatino, and awarded Levatino attorney fees.
We have thoroughly reviewed the record and conclude the trial court reached the correct conclusion. All of the actions complained of by Hernandez arose out of Levatino’s representation of Wife, and there is no possible merit to the claims asserted by Hernandez. Thus, we affirm the judgment.

On November 24, 2008, at about 10:30 p.m., Randall Armendariz, an employee of Performance Towing and Transport, was shot and killed when he apparently confronted a person he suspected had stolen his employer’s white, 1989 Chevrolet service truck earlier that day. Defendant Anthony Avilez Trammell was charged with the murder of Armendariz. After a jury trial, defendant was convicted of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) with the special circumstance of committing the murder in furtherance of a criminal street gang (§ 190.2, subd. (a)(22)), two counts of possession of a firearm by a felon (formerly § 12021, subd. (a), presently § 29800, subd. (b); counts 2 & 4), receiving stolen property (§ 496, subd. (a); count 3), exhibiting a firearm to a peace officer to resist arrest (§ 417.8; count 5), and being an active participant in a criminal street gang (§ 186.22, subd. (a); count 6). In addition, the jury found true the special allegations that defendant was an active participant in a criminal street gang (§ 186.22, subd. (b)(1)), and that he personally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)). Subsequently, defendant admitted he had suffered a prior strike within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a term of life without the possibility of parole on the murder charge in addition to a consecutive 22-year determinate term.[2]
On appeal defendant contends the trial court erred in admitting a witness’s taped statement to the police, claiming the statement was coerced. Additionally, he claims (1) the court erred in calculating his sentence under the three strikes law, (2) his sentence for being an active participant in a street gang should be stayed, (3) the court miscalculated his conduct credits, and (4) the court erroneously imposed a parole revocation fine. We agree defendant’s sentence was miscalculated, that the gang participation count must be stayed and that he is entitled to additional conduct credits and will modify the judgment accordingly. We find defendant’s remaining contentions without merit and affirm the judgment as modified.

The court has read and considered the petition for writ of mandate and the informal response filed by the Attorney General. The Attorney General concedes that petitioner is entitled to the appointment of an attorney. Given this concession, this court may grant relief without issuance of an alternative writ or an order to show cause. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179.) Accordingly, the petition for writ of mandate is granted.
Petitioner filed a written request with the trial court stating that he is presently confined for an offense he did not commit, that deoxyribonucleic acid (DNA) testing is relevant to his assertion of innocence, that he is indigent, and that he has not previously requested appointment of counsel to pursue a motion for DNA testing. Therefore, he has stated a prima facie basis for appointment of counsel, and the court was required by Penal Code section 1405, subdivision (b)(1), to appoint an attorney to prepare a motion for performance of DNA testing.

A gang expert opined that defendant was a member of a rival gang — the 12th Street Mafia — based on multiple items of evidence, including defendant’s statements to various booking officers. Thus, a jury found defendant guilty of the crime of active gang participation (Pen. Code, § 186.22, subd. (a)); it also found several gang enhancements true (id., subd. (b)).
Defendant contends that his statements at booking were not admissible under the routine booking question exception to Miranda v. Arizona (1966) 384 U.S. 436. We disagree. Moreover, we will hold that the asserted error was harmless beyond a reasonable doubt, because there was massive evidence, in addition to his statements, that he was a member of 12th Street.