CA Unpub Decisions

A modification decision.

The motion of Carin Salter and Jennifer Segal to dismiss the appeal of Glenn Lerner from the order denying Lerner’s petition for instructions regarding the statute of limitations, etc., is GRANTED. Whether Lerner’s petition is regarded as a demurrer or a motion to dismiss based on facts not appearing on the face of the underlying petition filed by Salter and Segal, the order denying Lerner’s petition is not a “final order under Chapter 3 (commencing with Section 17200) of Part 5 of Division 9 [of the Probate Code],” made appealable by Probate Code section 1304, subdivision (a). Unlike the order from which the appeal was taken in Germino v. Hillyer (2003) 107 Cal.App.4th 951, on which Lerner relies in arguing that the present order is appealable, the present order denies Lerner’s petition, denying his request to determine that the petition by Salter and Segal is barred by the statute of limitations. The claims of Salter and Segal thus remain to be resolved. The order in Germino v. Hillyer granted a similar motion, thus finally determining that certain claims contesting the trust were barred, leaving nothing further in that respect to be determined.

Mother seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) directed to the juvenile court’s order terminating or denying reunification services and setting a Welfare and Institutions Code[1] section 366.26 hearing as to her three children, J.B., age 12, D.A., age four, both of whom have special developmental needs, and R.A., age seven months. Father also seeks an extraordinary writ directed to the juvenile court’s order terminating or denying reunification services and setting a section 366.26 hearing as to D.A. and R.A. as to whom he is the presumed father. Both parents contend there is no substantial evidence to support the trial court’s finding that reasonable reunification services were provided as to the older siblings. They also contend the court erred in consolidating the infant’s case with that of her older siblings and continuing her dispositional hearing until after reunification services had been terminated for the older children, thereby allowing services to be bypassed under section 361.5, subdivision (b)(10). Mother contends further that there is no substantial evidence to support the court’s finding that the two older siblings should be treated as a sibling group for the purpose of determining the applicable timeline for reunification. We shall deny the petitions.

Defendant Andy Reuben Navarro timely appealed from a judgment entered on his plea. Because the trial court imposed a parole-revocation fine even though Navarro is not subject to parole, we order that the fine be stricken. We also order that the abstract of judgment be amended to reflect the crime for which Navarro was convicted. We otherwise affirm.

A jury convicted defendant Pierre Joenell Goins of second degree murder (Pen. Code,[1] § 187), and being a felon in possession of a firearm (§ 12021, subd. (a)(1), repealed by Stats.2010, ch. 711, § 4, now § 29800, subd. (a)(1) ). The jury also found true the allegations that defendant personally and intentionally discharged a firearm, causing great bodily injury and death. (§§ 12022.7, subd. (a); 12022.53, subds. (b), (c) & (d); 12022.5, subd. (a).) The trial court sentenced defendant to 43 years to life in prison. On appeal, defendant contends his conviction must be reversed because the trial court erroneously refused to allow character evidence regarding the victim and deprived him of his constitutional right to retain counsel of his choice. He further claims that reversal is required because his videotaped confessions—wherein he admitted to shooting the victim at close range, multiple times in the back—were not voluntary. We affirm.

Plaintiff Randall Radford (appellant) appeals from the trial court’s order granting defendant BAE Systems San Francisco Ship Repair Inc.’s (respondent) motion for new trial. We affirm.

On August 14, 2008, defendant pleaded guilty to driving under the influence (DUI) with a blood alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); she admitted four prior DUI convictions. Subsequently, defendant was arrested for another DUI and, on September 18, 2008, she pleaded guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)) and admitted committing the crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).[1] The court held a sentencing hearing for both of these cases and sentenced defendant to state prison for a total of four years eight months.

Over a span of approximately four months, the People filed nine separate petitions alleging that defendant Adrian C. was a minor subject to being adjudged a ward of the juvenile court under section 602 of the Welfare and Institutions Code. After consolidating the eighth and ninth petitions for trial, and conducting a trial thereon, the court sustained all allegations of both petitions. On the eighth petition the court found minor had committed a first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count 1),[1] and had obstructed a peace officer (§ 148, subd. (a)(1); count 2). As to the enhancement allegation attached to count 1 of the eighth petition, the court found a person not an accomplice was present during the commission of the residential burglary (§ 667.5, subd. (c)(21)). On the ninth petition the court found minor had committed petty theft (§§ 484, subd. (a), 488; count 1), and had obstructed a peace officer (§ 148, subd. (a)(1); count 2).

Steven P. appeals from a judgment after the juvenile court declared him a ward of the court pursuant to Welfare and Institutions Code section 602, and found true the petition’s allegations of second degree robbery (Pen. Code, § 211), and receiving stolen property (Pen. Code, § 496, subd. (a)). Steven contends the juvenile court erred by excluding his post-detention statements to police that were consistent with his alibi defense—an argument we reject. Steven also contends the juvenile court erred by sustaining the petition on the receiving stolen property count because he could not be convicted of both robbery and receiving stolen property. The Attorney General concedes the latter point, and we agree. Accordingly, we reverse the finding on the receiving stolen property count and affirm the judgment as modified.

In July 2010, Alireza Al Sazefari was arrested on felony domestic violence charges, and appellant Continental Heritage Insurance Company issued him a bail bond for $150,000. Al Sazefari was personally present for his arraignment on those charges on Monday, November 15, 2010, but his retained defense counsel was not present. At that hearing Al Sazefari was specifically ordered by the trial judge to surrender his Iranian and American passports to the prosecutor for safekeeping within 48 hours, but because his counsel was absent, the arraignment itself was continued to December 20, 2010.
Al Sazefari failed to surrender his passports, so the prosecutor’s office notified the trial judge’s staff about it. Upon receiving this message the judge decided he was not going to take “unilateral” action, but rather scheduled a hearing for the afternoon of Thursday, November 18, 2010, so that Al Sazefari’s lawyer could have notice and be present. No one, however, appears to have notified Al Sazefari.
At the Thursday afternoon hearing, the prosecutor asked the trial judge to revoke Al Sazefari’s bail in light of his noncompliance with the order to surrender the passports. The trial judge, however, declined, “because the defendant was not ordered by the court to be here.” The judge also kept the December 20 arraignment date.

Plaintiff Andrea Burns sued defendant WD-40 Company (WD-40) because their products, 2000 Flushes and 2000 Flushes Blue Plus Bleach (2000 Flushes Blue), allegedly harmed her plumbing. The putative class action sought relief under both statutory and common law causes of action and for injunctive relief. WD-40 filed a motion to dismiss her claim under the Consumer Legal Remedies Act (CLRA) and for summary judgment on the remaining counts, arguing, among other things, a lack of evidence as to causation with respect to the falsity of the advertising. The trial court granted the motion. Burns had two routes to establish the falsity of the representations — that her plumbing was harmed, or that nearly all plumbing would be harmed by use of the products. Because WD-40 successfully shifted the burden on these issues, and Burns failed to raise a triable issue of material fact in rebuttal, we affirm.

Defendant Venson Villapando appeals from the judgment entered after a jury found him guilty of one count each of attempting to commit a lewd and lascivious act upon a child under the age of 14 years and of attempting contact with a minor with the intent to commit a lewd act upon the minor. Villapando argues the trial court erred by failing to instruct the jury, sua sponte, on the defense of entrapment. He also argues the prosecution wrongfully failed to disclose exculpatory evidence, in violation of Penal Code section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83. (All further statutory references are to the Penal Code.)
We reverse. For the reasons we will explain, there was substantial evidence of entrapment admitted at trial. Therefore, the trial court erred by failing to give an instruction on entrapment to the jury, notwithstanding Villapando’s trial counsel’s failure to request such an instruction. The court’s error was not harmless because a more favorable result for Villapando was reasonably probable had an entrapment instruction been provided. The jury, as the trier of fact, should have received the entrapment instruction and reached its verdict with that instruction in mind. Because we reverse for a new trial on this ground, we need not reach Villapando’s other contention of error.

Lawrence Esper is the subject of a commitment petition filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).[1] By this petition for writ of mandate or prohibition, Esper challenges the respondent court’s order denying his motion to dismiss the SVPA commitment petition. He argues that when the commitment petition was filed, he was not in lawful custody as required under section 6601, subdivision (a)(2) (section 6601(a)(2)) because his arrest in October 2007, which led to his custody on revocation of his parole, was made in violation of his due process rights.
We conclude a full evidentiary hearing, with oral testimony permitted, is necessary to determine whether Esper’s arrest in October 2007 violated his due process rights and, if so, whether that arrest was the result of a good faith mistake of fact or law by law enforcement officials. We therefore grant the petition and issue a writ of mandate directing the respondent court to vacate its orders denying Esper’s motion to dismiss the SVPA commitment petition, conduct an evidentiary hearing on the motion with oral testimony if requested, prepare written findings, and, based on those findings, reconsider Esper’s motion.

The main issue in this case is identification. Appellant Gabriel Martinez Cabrera contends there is insufficient evidence to support the jury’s finding he was the person who heisted a cargo truck from a United Parcel Service (UPS) facility in Orange County. He also claims his attorney was ineffective for failing to present a better alibi defense. The standard of review for both claims is highly deferential. Applying those standards, we are convinced appellant’s convictions for grand theft and receiving stolen property must be affirmed.