CA Unpub Decisions

An amended information charged defendant with one count of possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a); one count of possessing a hypodermic needle and syringe, in violation of Business and Professions Code section 4140; and a prior strike allegation pursuant to Penal Code section 1170.12. Defendant pled guilty to possessing a controlled substance and admitted her prior strike pursuant to section 1170.12. The trial court placed defendant on probation.
After violating probation three times, the trial court sentenced defendant to an aggregate term of four years. The court committed defendant to the California Rehabilitation Center (CRC), but she was statutorily ineligible for commitment to CRC because of her prior strike and she was referred back to the trial court for further proceedings. The court vacated its previous sentence of four years and resentenced defendant to an aggregate term of 32 months in state prison. She was awarded presentence credits in the amount of 239 days. On appeal, defendant contends that her trial counsel provided ineffective assistance for failing to request the trial court to strike her prior strike. Additionally, she maintains that the sentencing court miscalculated the number of presentence credits to which she was entitled. The People agree that the court miscalculated the presentence credits, but contest defendants claim of ineffective assistance of trial counsel. Court are unpersuaded by defendants claims of ineffective assistance of counsel, but remand to the trial court and direct it to calculate defendants presentence credits in a manner consistent with this opinion.

The juvenile court found minor Gabriel B. to be a dependent child and committed him to the care of respondent Alameda County Social Services Agency. On appeal from the jurisdictional and dispositional order, Gabriels fatherappellant Fidel H.contends that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (See 25 U.S.C.[1] 1901-1923.) As several months passed since these juvenile court rulings before the case became ready for determination on appeal, when the case was fully briefed, Court asked the parties whether any juvenile court events had occurred that might bear on this issue. In response to our request for letter briefs, the parties have asked us to take judicial notice of records reflecting some of these later occurring events. court have done so. Now, the agency contends that subsequent events have rendered this appeal moot. Court agree and thus, Court dismiss the appeal as moot.

Around 11:20 p.m. on the night of April 4, 2007, a Sonoma County deputy sheriff observed appellant Joel Rivas-Miranda driving his vehicle on Highway 101 at approximately 45 miles per hour. The vehicle drifted over the fog line, and appellant drove for a short distance on the shoulder of the road. He reduced his speed even more as he reentered the roadway, and he drove in a pronounced weaving pattern for the next half-mile. The deputy observed other cars on the roadway attempting to avoid appellants vehicle. When the deputy initiated a traffic stop, appellant continued driving at approximately 20 miles per hour, and when he eventually came to a stop both of his passenger-side tires remained in the highway. Appellant was slumped in the drivers seat and moved very slowly. His eyes were red and watery, and the interior of the vehicle smelled strongly of alcohol. When the deputy asked for identification, appellant fumbled for his wallet and then simply handed it to the deputy, saying nothing. Outside the car, appellant walked with an unsteady gait and swayed while he talked to the deputy. He said he had consumed three or four drinks. When appellant attempted to perform a field sobriety test, the deputy had to grab him to keep him from falling. A records check revealed that appellants drivers license was suspended and he was on parole for a previous conviction for driving while intoxicated. The deputy administered a PAS test, which indicated appellants blood alcohol content was 0.22 percent, and he took appellant into custody.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. In addition, appellant has had an opportunity to file a supplemental brief with this court, but he has not done so. Court have reviewed the entire record, and Court conclude no issue warrants further briefing. The judgment is affirmed.

In case number B179825 (Super. Ct. L.A. County, 2004, No. BC174047), decided by Judge Stephen Czuleger, defendant 20th Century Insurance Company (20th Century)[1]appeals from a judgment in favor of plaintiff Cecilia Encarnacion, individually and as guardian ad litem for her children Nubia Cecilia Gonzalez, Marcos A. Gonzalez, Jr. and Hilda Cecilia Gonzalez (collectively Encarnacion). 20th Century claims legal and evidentiary errors, as well as insufficient evidence to support the judgment.
Encarnacion appeals from the same judgment, claiming the trial court erred in denying her leave to amend her complaint. On this appeal, Court affirm both judgments. Court also remand case number B182737 for further proceedings.

We consider consolidated appeals arising from a nonjudicial foreclosure sale of residential property. A jury found Fidelity National Foreclosure Solutions (FNFS) negligent for conducting a foreclosure sale of the residence of Gershon Gabel without providing him notice. The jury awarded compensatory damages to Gabel in the amount of $450,000, with 15 percent apportioned to FNFS. On appeal, Gabel asserts the trial court erred in calculating damages by fixing the value of the property as of the date of the foreclosure sale rather than at its much appreciated value at the time of trial. Court affirm the judgment for damages and the order denying Gabel's motion for attorney fees. Court affirm the orders denying FNFS's motion for JNOV and new trial.

Appellant Arturo Garcia appealed from his conviction and sentence for second degree robbery and assault with a deadly weapon or by means of force likely to produce great bodily injury, contending that the trial court erred in imposing the upper term for the robbery and that the conviction for assault should have been vacated. We issued an opinion dated April 24, 2006 affirming the judgment. Another issue raised in the original appeal was whether the charge against appellant for assault with a deadly weapon was a lesser included offense or necessarily included offense of robbery, the other charge. In our original opinion, we concluded the answer was no based on clear Supreme Court precedent. Shortly after resubmission, the California Supreme Court issued its opinion in People v. Sloan (2007) 42 Cal.4th 110, reaffirming People v. Wolcott (1983) 34 Cal.3d 92, on which we had relied in our original opinion. After review of Cunningham, Nguyen, Black II, Sandoval, Sloan, and the parties supplemental briefs, Court conclude that the trial courts sentencing choices were in accord with Supreme Court precedent, and that remand to the trial court for reconsideration of the sentence is not required.

Defendants and appellants Joshua Joseph Mojarro and Henry Alfredo Machuca appeal from the judgments entered following a jury trial that resulted in their convictions for second degree robbery. Mojarro was sentenced to a term of 15 years in prison; Machuca was sentenced to 13 years. Mojarro and Machuca contend the trial court erred by refusing their proposed special instruction regarding eyewitness identification. Mojarro further urges the trial court erred by allowing the People to use an incomplete chart during rebuttal argument, and committed Blakely/Cunningham error by imposing an upper term sentence. Machuca argues his trial counsel was ineffective in a variety of ways. Court affirm.

Defendants William Alan Sobel and The Law Corporation of William Alan Sobel appeal from a judgment in favor of plaintiff Palma Mattera following a bench trial in a legal malpractice action. Defendants contend that the trial court erroneously refused to grant summary judgment, the record contains no evidence that the underlying judgment would have been collectible, and the trial court erroneously failed to exclude the testimony of plaintiffs expert. Court disagree and affirm the judgment.

During August, September and October 2004, David L. Robinson (dubbed the Dreadlocks Bandit by at least one local newspaper) committed almost two dozen bank robberies in Los Angeles County. On each occasion, Robinson either passed a note to a teller or simply demanded money, threatened to kill the teller, and said he had a gun or held his hand in a pocket to suggest he had a weapon. Following his arrest on October 30, he admitted during a videotaped interview that he had robbed an unknown number of banks to obtain money to buy crack. Robinson was tried and convicted of 20 counts of robbery and two counts of attempted robbery, and he admitted he had suffered six prior serious felony convictions (all for robbery), each of which qualified as a strike. (Pen. Code, 211, 664, 667, subds. (a), (b)-(i).) He was sentenced to state prison for a determinate term of 660 years to be followed by 22 indeterminate terms of 25 years to life (or 550 years to life). Robinson appeals, challenging only one of his robbery convictions. Court affirm.

This matter involves three consolidated appeals.
In case No. B190293, defendants and appellants Cynthia Pernell (Pernell), Sharon Hamilton (Hamilton) and Beverly DAntignac (DAntignac) (collectively, the individual defendants) appeal an order invalidating their election to the board of directors of Ladera Little League, Inc. (LLL).
In case No. B191588, plaintiff and appellant Harry McElroy (McElroy) appeals an order granting a special motion to strike (Code Civ. Proc., 425.16)[1]filed by the individual defendants. Said order disposed of a cause of action by McElroy against the individual defendants for breach of fiduciary duty. Finally, in case No. B193304, McElroy appeals an order awarding $37,160.11 in attorney fees and costs to the individual defendants after they prevailed on their special motion to strike. For the reasons discussed below, Court (1) affirm the order invalidating the election, (2) reverse the order granting the special motion to strike and (3) reverse the order awarding attorney fees and costs to the individual defendants.

Movant and appellant Taheri Law Group (Taheri), former counsel for defendant and respondent Alexander Sorokurs and Alexander Sorokurs, Inc. (Sorokurs), appeals an order denying Taheris motion to intervene in an action, Samvalian v. Sorokurs (L.A. Super. Ct. No. EC037740). Taheri sought to intervene in order to bring a motion to vacate a global settlement in the action, on the ground the settlement failed to protect Taheris right to attorney fees.
The record reflects Taheri failed to seek intervention in a timely manner. Despite being aware of a pending motion by Sorokurs to enforce a settlement agreement (Code Civ. Proc., 664.6), Taheri did not attempt to intervene at that juncture in order to object to enforcement of the settlement. It was only after the trial court granted the motion to enforce the settlement that Taheri sought leave to intervene, in order to bring a motion to vacate the settlement.
Accordingly, the order denying Taheris intervention motion is affirmed.

Defendant and appellant, Christopher Proffitt, appeals from the judgment entered following his conviction, by jury trial, for burglary and robbery, with prior prison term and prior serious felony conviction findings (Pen. Code, 459, 211, 667.5, 667, subd. (a)-(i)). Sentenced to state prison for 35 years to life, Proffitt claims there was trial and sentencing error. The judgment is affirmed as modified.

Petitioners Donna Lear Goldfarb and Jill Lear Richman (Goldfarb and Richman) seek a writ of mandate directing the trial court (1) to vacate its order setting for trial the petition filed by Ivan Tarnove (Tarnove) in which he is attempting to enforce an agreement for purchase and sale of real property; and (2) to dismiss the entire proceeding based upon the principle of collateral estoppel. The opinion of this court in Estate of Blanche Lear (August 30, 2006, B181768 [nonpub. opn.]), is a final determination that no binding agreement was entered as to the sale of Goldfarb and Richmans remainder interest in the real property. Nothing relating to the purported agreement to sell real property remains to be decided. Court therefore issued a notice of our intention to grant the above-captioned petition in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232; Palmav. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
Following our review of the additional briefing and the entire record, we conclude the petition must be granted. As stated in Estate of Blanche Lear: An essential element of any contract is consent. [Citation.] The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe. [Citation.] Accordingly, the primary focus in determining the existence of mutual consent is upon the acts of the parties involved. [Citation.] With these principles in mind, Court find that substantial evidence supports the probate courts determination that the parties did not enter into a binding settlement agreement with respect to the sale of Goldfarb and Richmans remainder interest in the condo to Tarnove. (Estate of Blanche Lear, supra, B181768, at p. 11, italics added.) As a matter of law, Tarnoves attempt to relitigate the purported sale of real property is barred by collateral estoppel. The petition for writ of mandate is granted.

In 1984, John Bolen, James Bartels and Terrence Devine entered into a partnership agreement for the operation of defendant Hamilton Orchards, a California general partnership, for the purpose of engaging in farming and related activities. In December 2001, John Bolen died and his wife, plaintiff Karen Bolen, sought a buyout of his interest in the partnership. Devine and Bartels initially believed a buyout of John Bolens interest was required by the partnership agreement and proceeded accordingly. However, in October 2002, Devine was reminded of a provision in the partnership agreement that appeared to eliminate the interest of any partner upon his death. Devine thereafter refused to pay plaintiff anything on John Bolens interest. court conclude the extrinsic evidence the trial court refused to consider did not render the partnership agreement susceptible to a meaning that would have preserved John Bolens interest in the partnership after his death. Court therefore affirm the judgment.