CA Unpub Decisions

In this consolidated appeal, defendants Hector Ortiz and David Perez appeal from judgments entered against them following jury convictions for first degree residential robbery of Juan Rosa Ortiz (Rosa).[1] (Pen. Code, 211.) The jury also found true the allegation that Ortiz personally used a knife in the commission of the robbery ( 12022, subd. (b)(1)). In addition, Perez admitted he suffered a prior conviction for second degree burglary, and Ortiz admitted two prior convictions for robbery, one attempted robbery conviction, and a conviction for assault with means likely to cause great bodily injury.
Perezs sentence is reversed and remanded for trial and resentencing solely as to his prior prison term enhancement ( 667.5, subd. (b)). Judgment is affirmed in all other respects. Perezs writ petition is denied.
Ortizs sentence is reversed and remanded for trial and resentencing solely as to his three prior felony conviction enhancements ( 667, subd. (a)). In all other respects, Ortizs judgment is affirmed.

Defendant Gene Mahoney was charged with one count of first degree murder, with associated firearm enhancements. (Pen. Code, 187, subd. (a), 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a).)[1] He was acquitted of that charge, and of the lesser included offense of second degree murder. He was convicted of the lesser included offense of voluntary manslaughter, a violation of section 192, subdivision (a). The firearm allegations were found to be true. Defendant was sentenced to 10 years in prison.
Defendant appeals, contending the prosecutor committed prejudicial misconduct by misstating the law concerning the lesser included offense of involuntary manslaughter during his closing argument. The judgment is affirmed.

Rosa T. appeals an order terminating her parental rights to four of her children. The childrens father, Guillermo T., is not a party to the appeal. Rosa contends that the court erred in denying her petition for modification without a hearing and that the sibling bond and beneficial parental relationship exceptions contained in Welfare and Institutions Code section 366.26, subdivision (c), precluded termination of her parental rights. Court affirm the order.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested six month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter J. Court deny the petition.

A jury found defendant Arturo Alonso Morales guilty of one count each of possession of methamphetamine for sale (Health & Saf. Code, 11378, count 1) and transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a), count 2). Because the only issues in this appeal relate to sentencing, we need not relate the factual basis for his conviction. Contrary to the argument of the Attorney General, we do not find that courts statements in the imposition of sentence were so confusing as to compel a remand for resentencing. Court order correction of the minute order that memorializes the sentencing proceedings. On our own motion Court also order correction of the probation order.

jury convicted Geraldo Segura of one count of unlawful driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) and one count of evading police while driving recklessly in violation of Vehicle Code section 2800.2. Segura admitted a prior felony conviction. The trial court imposed the midterm sentence on count 1 and one third the midterm sentence on count 2, to run consecutively, for a total of three years eight months in prison.
Segura challenges the conviction on one ground: He argues the trial court erred by failing to instruct the jury sua sponte on joyriding in violation of Penal Code former section 499b as a lesser included offense of violating Vehicle Code section 10851, subdivision (a). Court conclude joyriding in an automobile cannot be a lesser included offense because amendments enacted in 1996 to section 499b removed joyriding in an automobile from the sections reach. Even if joyriding in an automobile remains a lesser included offense, the evidence at trial did not support giving an instruction on that offense. Court therefore affirm.

jury convicted defendant Lee Thomas Bjorn of nine counts of lewd conduct with a minor under the age of 14. (Pen. Code, 288, subd. (a).) In addition, the jury found the facts necessary to establish that the prosecution was commenced within the extended statute of limitations set forth in former section 803, subdivision (g) (hereafter section 803(g)). The court imposed an upper term of eight years on one count and consecutive two-year terms on the other eight counts for a total sentence of 24 years in prison.
On appeal from the judgment, defendant claimed that the prosecution was time barred. He also claimed that the court erred in (1) denying his motion to suppress; (2) admitting evidence of uncharged sexual misconduct; (3) giving CALJIC No. 2.50.01; (4) refusing an instruction that explained why an oral admission must be viewed with caution; (5) failing to expressly instruct the jury that factual allegations related to sentencing must be proved beyond a reasonable doubt; and (6) failing to stay the term for one count.
In our original opinion, we rejected defendants claims and affirmed the judgment. Concerning his claim that the court failed to properly instruct jurors on the burden of proof for factual allegations related to sentencing, defendant conceded, and we agreed, that at the time, the claim was foreclosed by the holding in People v. Black (2005) 35 Cal.4th 1238 (Black). (See Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.) Later, however, in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), the United States Supreme Court disagreed with Black, vacated it, and remanded it to the California Supreme Court for reconsideration in light of Cunningham. (Black v. California (Feb. 20, 2007, No. 05-6793) U.S.[127 S.Ct. 1210].) Thereafter, the United States Supreme court vacated our original decision, recalled the remittitur, and remanded it to us for further consideration.
Having done so, Court again affirm the judgment.

This matter is before us on remand from the Supreme Court. In our original decision we held that (1) the trial court had not erred prejudicially by granting, prior to certifying a class, real party Sandra Gonzalezs motion for judgment on the pleadings as to petitioner Fireside Banks claims against her; and (2) the court had not erred in certifying the class. (Fireside Bank v. Superior Court (Gonzalez) (Oct. 21, 2005, H027976).) The Supreme Court rejected the first holding, concluding that the trial court abused its discretion in ruling on the pleading motion while the class issues remained unresolved. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1074-1075, 1087 (Fireside Bank).) The court agreed with us, however, that no abuse of discretion appeared in the trial courts order granting class certification. (Id. at pp. 1075, 1089.) The court reversed the case and remanded it to us for further proceedings consistent with this opinion. (Id. at p. 1093.)
It appears that the only issue before us is the correct disposition. The parties have not submitted supplemental briefs on this issue. (See Cal. Rules of Court, rule 8.200(b).) In its original petition, Fireside Bank contended that by granting a motion going to the merits, the trial court created a difficulty that can only be alleviated by barring treatment as a class action. The Supreme Court, however, squarely rejected this contention. The court reasoned that plaintiff Sandra Gonzalez acted excusably in filing her pleading motion before a class was certified, and was blameless in the trial courts ruling on that motion prematurely, over requests that it delay action and assurances that it would do so. (Fireside Bank, supra, 40 Cal.4th at p. 1088.) Accordingly, to bar class certification would be inequitable: Instead, vacating the trial courts premature merits ruling and ordering the trial court to disregard it and decide any future motion de novo will reduce the risk of one way intervention for Fireside Bank without unduly punishing plaintiffs. (Ibid.) That will therefore be the order.

Facing several felony charges, defendant Tony Esquivel pleaded no contest to the felonies of preventing or dissuading a victim (Pen. Code, 136.1)[1] and inflicting corporal injury on a cohabitant ( 273.5). In exchange, other charges were dropped. After defendants motion to withdraw this plea was denied, the court sentenced defendant pursuant to the bargain. Imposition of sentence was suspended for three years, and defendant was placed on probation with a variety of conditions, including paying several fees, avoiding the victim, not contacting her, attending 52 weeks of domestic violence classes, and spending 365 days in custody.
Defendant has appealed after obtaining a certificate of probable cause. He contends that his motion to withdraw his plea should have been granted because his attorney did not advise him that dissuading a witness was a strike with consequences under the Three Strikes statutes for future sentences. He also asserts that his trial attorneys were incompetent, first in inadequately advising him, second in making an inadequate motion to withdraw his plea. Shortly before oral argument in this appeal, defendant also filed a habeas corpus petition amplifying his allegations of attorney incompetence. Court ordered this petition to be considered together with this appeal and resubmitted the cause upon completion upon habeas briefing. For the reasons stated below, Court reject these contentions and affirm the judgment. Court dispose of the habeas petition by separate order.

In a dissolution of marriage proceeding, Kathey Fyke appeals from a judgment dissolving her marriage to Richard S. Falcone. The judgment is a status only judgment. Kathey fails to show prejudice. Court therefore affirm the judgment.

Defendant Delray K. Rawls pled nolo contendere to robbery, false imprisonment, property crimes and controlled substances crimes and admitted several firearms enhancements. Before sentencing, defendant asked the court to discharge his retained counsel and appoint substitute counsel (motion for substitute counsel) to explore a motion to withdraw his no contest pleas. The trial court asked for defendants reasons for withdrawing the pleas and then denied the not yet formally made withdrawal motion. The motion for substitute counsel was not addressed. The court sentenced defendant to a prison term of 16 years, four months. The judgment is reversed and the matter is remanded to the superior court for proceedings consistent with this opinion.

Defendant Charles Myke Furulie pleaded no contest to one count of possession of marijuana for sale (Health & Saf. Code, 11359) and admitted having suffered one prior conviction resulting in a prison term (Pen. Code, 667.5, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation for three years. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant. Court have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal. The judgment is affirmed.

Appellant, Andre Johnson, appeals from a judgment entered in his employment discrimination action after the trial court granted a motion for summary judgment. After this court received the notice of appeal and the civil case information statement, we sent a letter to appellant inquiring why the appeal should not be dismissed as untimely filed. Having received and considered letter briefs from both appellant and respondent, we find the appeal untimely pursuant to rule 8.104 of the California Rules of Court, and dismiss the appeal.

Plaintiff and appellant Brad Rodriguez, a minor, was injured when he fell in the kitchen of his family's apartment. Through a guardian ad litem, appellant sued Mansour Faramarzipour, whom he alleged to be the owner of the property, and Abe Maghen, the property manager, for negligence and premises liability,[1]claiming that his injuries resulted from respondents' negligence in failing to maintain the premises in a proper condition. At the close of trial testimony, the court granted Faramarzipour's motion for nonsuit and entered judgment in his favor. A jury subsequently found that respondent Maghen was not negligent and judgment was entered accordingly.
On this appeal, appellant argues that, on respondent Faramarzipour's motion for nonsuit, the court did not give adequate deference to appellant's evidence, improperly weighed evidence proffered by the defendant, and refused to allow appellant to reopen or amend his complaint. Appellant also contends that the trial court erred in declining to give the jury an instruction on negligence per se regarding the claim against Maghen. Court find that no error occurred and affirm the trial court's judgments.