CA Unpub Decisions

This thorny matter involves two trusts, three probate proceedings in two states, and two litigious factions of natural grandchildren versus adopted grandchildren. Bank of America, N.A. (the Bank) was the trustee holding over $11 million dollars in California trust assets, subject to a trust established in 1937. It did not distribute the assets until 16 months after the date of death of the Colorado life beneficiary, having waited until the expiration date for the filing of a will contest in the ancillary probate in California. Richard Wolber (Wolber), the California executor of the life beneficiarys will, has sued the Bank for breach of fiduciary duty. He alleges that the Bank dragged its feet in distributing the trust assets and he seeks compensation for the diminution in value of the assets during the 16-month period. Wolber also claims that the Bank took a termination fee to which it was not entitled. The court entered judgment in favor of the Bank and Wolber appeals.
Court affirm the judgment. The Bank, duly concerned about ongoing litigation between the two sets of grandchildren over the assets of a different trust, established in 1954, exercised due caution in the distribution of the $11 million in assets in the trust at issue here. Substantial evidence supports the trial courts finding that the Bank did not breach its fiduciary duty in waiting for the expiration of the will contest filing deadline in California before effectuating the distribution. Also, Wolber has failed to show that the court erred in confirming a fee to the Bank.

Plaintiff Steven Hammer appeals from a judgment entered in favor of defendant Landmark Merchant Solutions (Landmark) following a bench trial. In January 2004, the parties mutually rescinded a service contract. Two months later, Landmark mistakenly referred Hammers account to a collection agency. Hammer filed a complaint which contained causes of action for rescission and fraud against Landmark. Even though Landmark corrected the error within one week after Hammer was notified his account had been referred to collections, Hammer served Landmark with the complaint and sought a Judgment of Rescission against Landmark. The trial court found there was no evidence Landmark engaged in fraud, and rejected Hammers claim for rescission on the ground [t]here is nothing left to rescind.
Hammers sole argument on appeal is that the trial court erred by failing to enter a judgment of rescission in his favor. Court affirm.

On March 30, 2005, a jury convicted defendant of one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)) and one count of sexual penetration while the victim is unconscious of the nature of the act (Pen. Code, 289, subd. (d)).[1] The same day, defendant admitted he had served a prior prison term ( 667.5, subd. (b)) and that he had been convicted of one prior serious felony ( 667, subd. (a)) and two violent or serious felonies that qualified as strikes under the Three Strikes law ( 667, subds. (b) (i) & 1170.12). On April 19, 2005, the trial court denied defendants request to strike one of the strike priors and sentenced defendant to 61 years to life in prison with an additional consecutive seven year sentence. On appeal, defendant contends: (1) his counsel provided ineffective assistance by advising him to admit the prior serious felony and prior strike convictions; and (2) the trial court abused its discretion in denying his request to strike one of the strike convictions. Court affirm the judgment.

Defendant Adam Joseph Villareal appeals from a judgment of conviction entered after he pleaded guilty to various charges relating to the arson of a residence. Court conclude that the law of the case doctrine precludes review of his claims regarding the use of his juvenile adjudication as a strike under the Three Strikes Law. We also conclude that Penal Code section 654 prohibited imposition of sentence on count six. Accordingly, the judgment is modified to reflect a stay on count six. In all other respects, the judgment is affirmed.

Defendant appeals from a judgment of conviction entered after a jury found him guilty of two counts of attempting to dissuade a witness by force (counts 1 and 2 Pen. Code, 136.1, subd. (c)(1)), assault with a deadly weapon (count 3 245, subd. (a)(2)), and possession for sale of methamphetamine (count 4 - Health & Saf. Code, 11378). The jury also found that defendant committed these crimes to benefit a criminal street gang ( 186.22, subd. (b)(4)) and that he personally used a firearm in the commission of count 3 ( 12022.5, subd. (a)). The trial court sentenced defendant to life imprisonment and a consecutive term of 17 years. On appeal defendant contends: (1) there was insufficient evidence to support the convictions of witness dissuasion; (2) CALJIC No. 7.15 incorrectly stated the applicable law; (3) CALJIC No. 2.02 incorrectly stated the law regarding circumstantial evidence to prove specific intent; (4) evidence of his recorded jail conversations violated his Sixth Amendment right to confront and cross examine witnesses; (5) the trial court abused its discretion by admitting evidence of his recorded jail conversations; (6) there was insufficient evidence to support the gang enhancement findings as to counts 1 and 2; (7) the cumulative effect of these errors mandates reversal; and (8) the trial court erred by sentencing him to separate life terms for counts 1 and 2. The life term on count 1 is stayed pursuant to section 654. As modified, the judgment is affirmed.

After more than 13 years of marriage, Peter M. Aceret and Leticia S. Aceret separated and divorced. Wife appeals from a judgment on reserved issues. She contends the trial court erred by denying her request for permanent spousal support, failing to resolve husbands allegation that she obtained a temporary spousal support order through fraud, refusing to grant her a credit for husbands unilateral approval of a $2,500 repair charge demanded by the buyer of the parties residence, and awarding husband attorney fees and costs under Family Code section 271. Husband has moved for sanctions, arguing the appeal is frivolous and wife failed to comply with the court rules governing appellate procedure. Court affirm the judgment and grant the motion for sanctions.

Mischelle A. (hereafter mother) raises two claims in this appeal from the trial courts order under Welfare and Institutions Code section 366.26 terminating her parental rights to her then 17 month old son, J.A. First, mother contends that the trial court violated the due process rights of J.A.s father because the trial court failed to appoint counsel for him. Next, mother contends that the trial court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) because, among other things, J.A.s name was misspelled on a notice sent to the Indian tribe. Mother lacks standing to raise the first claim, and the second claim lacks merit. Therefore, Court affirm the order terminating mothers parental rights.

After his motion to suppress evidence was denied, appellant Robert Avalos pleaded nolo contendere to one count of having a concealed firearm in a motor vehicle in violation of Penal Code section 12025, subdivision (a)(1). Because of a prior conviction within the meaning of the three strikes law, the trial court doubled appellants midterm sentence of two years and sentenced him to four years in state prison.
Appellant appeals on the grounds that: (1) the trial court committed reversible error when it denied his motion to suppress evidence based on an erroneous finding that appellant lacked standing to challenge the search, and (2) the California Supreme Court wrongly decided People v. Brendlin (2006) 38 Cal.4th 1107 (Brendlin) when it held that passengers in a car pulled over by police are not seized. Court affirm.

Defendant pleaded no contest to second degree burglary (Pen. Code, 459) and admitted a prior strike. In accordance with the stipulated sentence, the trial court sentenced defendant to the lower term of 16 months, which was doubled by the strike to 32 months. The court also imposed a S 200 restitution fine (Pen. Code, 1202.4), stayed a $200 parole revocation fine (Pen. Code, 1202.45), and imposed a S 20 court security fee (Pen. Code, 1465.8). Defendant was awarded 127 actual days and 62 conduct days for a total of 189 days of custody credit.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Vicky B. and Roland W., the parents of E.W., appeal the judgment terminating their parental rights under Welfare and Institutions Code section 366.26. Vicky contends that the juvenile court erred by not applying the beneficial parent child relationship exception to adoption ( 366.26, subd. (c)(1)(A)). Roland joins in Vicky's argument. (Cal. Rules of Court, rule 8.200(5).)
The judgment is affirmed.

Jesse F. appeals a judgment of the juvenile court terminating his parental rights to his minor children J.F. and Nathaniel F. (together the minors) under Welfare and Institutions Code section 366.26. Jesse challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. Court affirm the judgment.

Defendant challenges an order entered in 2005 extending his civil commitment to the Department of Mental Health as a mentally disordered offender (MDO) for an additional year. (Pen. Code, 2970.) He asserts that the order must be reversed because the trial court permitted the People to call him as a witness in the current recommitment proceeding, and admitted into evidence his former testimony from a 2000 recommitment proceeding. He argues that under other statutory schemes the Legislature has afforded civilly committed persons the right not to testify at their recommitment proceedings, and accordingly equal protection principles mandate that this same right be afforded to him. This precise argument was rejected by another division of this court in an appeal filed by Lopez from his 2004 recommitment order. (People v. Lopez (2006) 137 Cal.App.4th 1099(Lopez).) The Lopez court held that the Legislature has not extended the right not to testify to civil committees. Court agree with this holding. Alternatively, we hold any error in admitting Lopez's testimony was not prejudicial. Accordingly, Court affirm the recommitment order.

Defendant was charged together with codefendants James Knox (James) and Mark Booker with three counts of attempted murder (Pen. Code, 187, subd. (a)). With regard to each count, Knox was also alleged to have discharged a handgun which proximately caused great bodily injury to each victim ( 12022.53, subd. (d)). A jury found Defendant guilty of attempted voluntary manslaughter (Pen. Code, 664/192, subd. (a)), a lesser crime as to counts 1 and 2, and found him not guilty of the count 3 offense.
The trial court sentenced Knox to a total prison term of six years, six months, consisting of the upper term of five years, six months on count 1 plus a consecutive one-year middle term on count 2.
Defendant appeals, contending his convictions must be reversed because the trial court prejudicially erred when it required he be shackled during his jury trial, when it refused to allow him to introduce relevant character evidence for violence of the major prosecuting witness/victim, and when it refused to allow him to impeach that same witness with evidence of a recent uncharged stabbing. Defendant also claims the court's imposition of the upper term for count 1 violated his federal constitutional rights to proof beyond a reasonable doubt and jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220 (Booker) because the aggravating factors were not found true by a jury.
During the pendency of this appeal, the United States Supreme Court in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. [2007 WL 135687] (Cunningham) determined that California's Determinate Sentencing Law (DSL), which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and Booker, supra, 543 U.S. 220. Although Court find no prejudicial error to reverse Defendant's convictions, Court reverse his sentence and remand for resentencing in light of Cunningham.

Jacqueline B. appeals a judgment terminating her parental rights to her son, Andrew M. She contends insufficient evidence supports the court's finding the beneficial parent child relationship exception to termination of parental rights did not apply. Court affirm the judgment.