CA Unpub Decisions

A jury convicted Joshua L. Cobb of unlawful possession of a billy club (Pen. Code,[1] § 22210). Cobb was granted probation subject to certain conditions.
Cobb appeals contending the trial court erred in admitting certain statements made by Cobb in violation of Miranda v. Arizona (l966) 384 U.S. 436 (Miranda). We are satisfied the trial court correctly admitted the challenged statements and affirm.

Secundino Teodoro Torres appeals for a second time in this action in which he was convicted of committing numerous acts of sexual molestation on C. when she was between the ages of eight and 12. After we modified the judgment as a result of Torres's first appeal to reflect lesser included offenses on two of the counts and remanded for resentencing, the trial court resentenced Torres to prison for a term of 72 years eight months.
Torres contends that he received ineffective assistance from defense counsel because she failed to argue at resentencing that the trial court should exercise its discretion to impose concurrent rather than consecutive sentences for some of the counts. As we will explain, we conclude that the record on appeal is insufficient to establish that defense counsel provided ineffective assistance, and we therefore reject Torres's argument. Torres also argues, and the Attorney General agrees, that the abstract of judgment should be modified to correct a clerical error. We order the trial court to correct the clerical error in the abstract of judgment, and we otherwise affirm the judgment.

Richard E. Hodges appeals a judgment dismissing his case after the superior court sustained demurrers by Ace Parking Management, Inc. (Ace Parking), Scott Jones, Mike Wilson and Ian Pollart (collectively, the defendants) to his third amended complaint asserting claims for racial and age discrimination, harassment and retaliation. He contends that his third amended complaint sufficiently alleged causes of action for racial and age discrimination, harassment and retaliation against all of the defendants. We conclude that the allegations were sufficient to state a claim for wrongful termination based on racial and age discrimination against Ace Parking. We therefore reverse the judgment as to that claim; in all other respects, we affirm the judgment.

Jeremy Heard appeals from a judgment convicting him of numerous counts of prohibited practice by a mortgage foreclosure consultant and forgery arising from his operation of a company that purported to assist homeowners whose residences were in foreclosure. He argues the prohibited practice counts (based on his acquisition of an interest in the residences) must be reversed because (1) the statute of limitations had expired for these counts, and (2) the prosecution did not establish that the residences were still in foreclosure at the time he acquired an interest in them. He also argues the forgery counts must be reversed because (1) the evidence does not support that the charged misconduct constituted forgery, and (2) the trial court failed to instruct on aiding and abetting principles. Further, he challenges the trial court's award of victim restitution on the basis that one of the victims did not suffer economic loss. We reject his contentions of reversible error.
The Attorney General concedes, and we agree, that the minute order and abstract of judgment incorrectly refer to a parole revocation restitution fine that was unauthorized and not imposed by the court. Accordingly, we modify the minute order to strike the reference to this fine, and instruct the superior court to prepare an amended abstract of judgment reflecting this change.
As so modified, the judgment is affirmed.[1]

Angela Pedroza, as the executor of the Estate of John P. Pedroza, Sr., (the Estate) appeals from a jury verdict in a personal injury and wrongful death lawsuit against the Estate by the surviving passengers of an automobile accident in which John P. Pedroza, Sr. (Pedroza, Sr.) was the driver. The Estate contends that the verdict against it should be reversed because of purportedly erroneous evidentiary rulings and because substantial evidence did not support the verdict. We conclude that the Estate's arguments lack merit, and we affirm the judgment.

Appointed counsel for defendant David Ramos Bernal has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

Appointed counsel for defendant Quawntay Adams has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no errors and shall affirm the judgment.

Defendant Tina Marie Woods pleaded no contest to second degree burglary and possessing methamphetamine. The abstract of judgment reflects a drug program fee, plus assessments, totaling $600.
On appeal, defendant asks that we order the abstract of judgment corrected to accurately reflect the sentence pronounced by the court. The People oppose the request and seek remand. We shall order correction of the abstract of judgment.

Convicted of oral copulation with a young minor (Pen. Code, § 288.7) and having served two prior prison terms (Pen. Code, § 667.5, subd. (b)), defendant Stefan Dwayne Cosey was sentenced to 15 years to life in prison. He contends on appeal that the trial court erred in ordering him to pay booking and classification fees (Gov. Code, § 29550.2) without first finding he had the ability to pay those fees. He further contends the People failed to prove the fees were actually incurred. Finally, he argues that he was entitled to a jury determination of both his ability to pay the fees and whether they were actually incurred.

Given the nature of defendant’s claims and the lack of objection below, we dispense with a summary of the facts of defendant’s conviction and proceed directly to our discussion of his claims. As we will explain, we decline to address his first two contentions and disagree with his last. Accordingly, we shall affirm the judgment.

For their part in a continuing violent rivalry between subsets of the Norteño gang, defendants Cesar Santana and Isaac Givens were found guilty by jury of shooting at an inhabited dwelling (Pen. Code,[1] § 246) for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). Both were sentenced to 15 years to life in state prison. On appeal, Santana contends the trial court abused its discretion in denying him probation because his was an unusual case, and his sentence of 15 years to life is cruel or unusual. Givens joins the second contention and also contends the trial court violated the ex post facto prohibition by imposing a $240 restitution fine when the applicable minimum was $200. Disagreeing, we shall affirm.

A developer obtains a large construction loan to build a luxury vacation resort and enters into contracts to sell several penthouse condominiums at the resort. The purchasers deposit earnest money which, in accordance with state law, is covered by surety bonds. The developer defaults on the construction loan and the lender bank forecloses. The condominium purchasers sue the developer and the sureties for the return of their earnest money deposits. One surety cross-complains, claiming the bank is indebted to the surety and was unjustly enriched because it received or benefitted from the earnest money deposits, but then refused to release its lien, preventing the sale of the condominiums which caused the purchasers to demand return of their deposits. Thus begins the surety’s unsuccessful search for a cause of action under which the bank can be held liable for the return of the earnest money deposits.
The surety, International Fidelity Insurance Company (IFIC), appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the demurrer of the lender, Bank of America (the Bank), to IFIC’s second amended complaint. IFIC contends the trial court abused its discretion in sustaining the demurrer without leave to amend. IFIC contends its causes of action for money had and received and for restitution were well pled. Further, IFIC asserts it can amend its cross-complaint to state causes of action for statutory reimbursement, contractual reimbursement, and subrogation. IFIC proposes to amend its cross-complaint to allege that the IFIC surety bonds were assigned to the Bank under the loan agreement. IFIC contends that under that assignment the Bank assumed the obligations under the surety bonds, including the obligation to reimburse IFIC.
As we will explain, the trial court properly sustained the demurrer without leave to amend. IFIC’s claims for money had and received and restitution depend upon the Bank’s having an obligation to withdraw or release its lien on the condominium units once they were ready for sale--IFIC failed to allege such an obligation. IFIC’s proposed new causes of action all depend on establishing that the Bank assumed the developer’s obligations under the surety bonds, but the assignment was for security. “It has long been the law in California, reaffirmed by the Uniform Commercial Code, that an assignment for security transfers the rights but not the obligations inherent in the assigned contract.” (Black v. Sullivan (1975) 48 Cal.App.3d 557, 564 (Black).) Because each of IFIC’s proposed claims lacks the requisite foundation, IFIC cannot state a valid cause of action against the Bank. Accordingly, we shall affirm the judgment.

After a court trial, the trial court found defendant Priscilla Ramirez guilty of two counts of second degree murder, found she was a principal, and found another principal was armed with a firearm during the murders. (Pen. Code, §§ 187, 12022, subd. (a)(1).) The trial court sentenced defendant to state prison for 16 years to life.
On appeal, defendant attacks the stipulation by which she agreed evidence from the jury trial of former codefendants could be admitted--along with other evidence--at her court trial.[1] Alternatively, she contends her trial counsel incompetently represented her regarding her entry into that stipulation. We shall affirm the judgment.

A jury convicted defendant Juan Carlos De Jesus Bautista of premeditated and deliberate attempted murder (Pen. Code, §§ 664/187, subd. (a)) (unless otherwise stated section references that follow are to the Penal Code), two counts of assault with a firearm (§ 245, subd. (a)(2)), and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found true allegations that the defendant personally and intentionally discharged a firearm causing great bodily injury (§§ 12022.53, subds. (c) & (d), 12022.5, subd. (a)), that defendant caused great bodily injury (§ 12022.7, subd. (a)), and that defendant committed the offenses for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)).
Following his conviction, defendant was sentenced to an indeterminate term of 40 years to life in prison, as well as additional sentences which the trial court stayed depending on the finality of other charges and enhancements. The trial court also imposed a $200 restitution fine with a 10 percent administrative surcharge fee, or $20.
Defendant appeals contending the trial court should have granted his Batson/Wheeler motion due to the prosecutor’s alleged race-based exercise of a single peremptory juror challenge. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.) Defendant also contends the trial court erroneously imposed the 10 percent surcharge on the $200 restitution fine. We conclude the trial court properly denied defendant’s Batson/Wheeler motion and that the $20 administrative surcharge on the $200 restitution fine was proper. We therefore affirm the judgment. We grant the People’s request to correct the abstract of judgment, which fails to reflect the sentence imposed and stayed for the gang enhancement on the attempted murder charge.
Facts and Proceedings

Defendant Johnae Rajshan Hoyt pled guilty to assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1); count one), threatening to commit a crime that would result in death or great bodily injury (§ 422; count three), torturing a dog (§ 597, subd. (a); count four), dissuading a witness (§ 136.1, subds. (b)(2), (c)(1); count five), and misdemeanor vandalism (§ 594, subd. (a); count six). Defendant also admitted having served two prior prison terms. (§ 667.5, subd. (b).) In exchange for his guilty pleas, a charge of attempted robbery was dismissed, which dismissal defendant understood would make him eligible for day-for-day or “half time” conduct credit. (§§ 211, 664; count two.)
The trial court sentenced defendant to state prison for the stipulated term of eight years four months. (§ 1170.15.) It awarded him 470 days of custody credit and 470 days of conduct credit. Defendant obtained a certificate of probable cause.
On appeal, defendant contends (1) he should be allowed to withdraw his “illusory” guilty pleas, (2) his trial counsel rendered ineffective assistance, and (3) his fines should be reduced to the statutory minimum due to misadvisement by the trial court. As we will explain, one of the terms of defendant’s plea bargain, his guilty plea to count 1 as a “non-strike,” cannot be implemented as currently entered. Another material term of the plea agreement, defendant’s eligibility for day-for-day presentence conduct credit, cannot be fulfilled.
We shall reverse with instructions to permit defendant to withdraw his plea, should he choose to do so.