CA Unpub Decisions

Appellant E*Trade Bank (E*Trade) was the beneficiary of a deed of trust securing a home equity line of credit. When the borrowers refinanced their property, E*Trade received a full payoff of the outstanding balance on the line of credit but failed to reconvey the deed of trust. Respondent Deutsche Bank National Trust Company (Deutsche Bank) sued and obtained a declaratory judgment canceling E*Trade’s unreconveyed deed of trust.
On appeal from the judgment, E*Trade raises two main contentions: first, the trial court erred in issuing a statement of decision that did not include findings on controverted issues at trial, including several of E*Trade’s affirmative defenses; and second, the trial court erred in cancelling E*Trade’s deed of trust pursuant to Civil Code sections 2941 and 2943. We agree, in part, with E*Trade’s first contention and will reverse the judgment with directions to the trial court to issue a new statement of decision and enter a new judgment, consiste

In November 2015, the Contra Costa County District Attorney filed an information charging appellant with one count of possessing cocaine for sale (Health & Saf. Code, § 11351). In April 2016, a jury found appellant guilty as charged. In July 2016, the trial court placed appellant on probation for three years. This appeal followed.

This is a dispute between neighbors in Royal Oaks (Monterey County) concerning a 63-square-foot triangular portion of a larger paved parking area (the parking area). The triangular area in dispute (disputed region) is located on 1540 Kari Lane (Property A), owned by respondent Rafael S. Uribe (Uribe). Nadedjda L. Rozanova (Rozanova) and Denis Klimov (Klimov) reside to the east of Property A at 1548 Kari Lane (Property B). Rozanova and Klimov (collectively, appellants) assert legal rights to use the disputed region of the parking area. (The parking area itself, save the disputed region, is located on appellants’ property, Property B.)

Plaintiff Zejin Deng challenges the trial court’s decision to dismiss with prejudice his wrongful death action against defendants El Camino Hospital, J. Todd Engelhardt, and Aaron Gladman related to the death of plaintiff’s sister, decedent Cuilan Deng. Her death allegedly resulted from her treatment at El Camino Hospital by doctors Engelhardt and Gladman. The action was abated in the trial court at defendants’ request because plaintiff had not served two siblings who, as decedent’s only other heirs, were necessary parties. Over a year after the action was abated (and four years after the action commenced) the trial court granted defendants’ motions to dismiss, reasoning that plaintiff had failed to diligently prosecute the action because he had yet to effectuate service of the summons and complaint on one of the heirs. Finding no abuse of discretion in the trial court’s decision, we will affirm the judgment of dismissal.

In this legal malpractice action, appellant Robert Genisman alleges his former attorneys, Hopkins Carley and Mark Heyl (collectively respondents), were negligent in their representation of him in connection with the 2005 sale of his ownership interest in two private companies (the Transaction). Genisman alleges the Transaction initially was structured as a buyout and respondents restructured it as a redemption without properly advising him regarding that change. As a result, Genisman alleges, he was sued for failing to properly disclose the nature of the Transaction to others. The trial court granted summary judgment to respondents on statute of limitations grounds. We affirm.

S.A. (Mother) and C.A. (Father) appeal from the order terminating their parental rights to their children T.A. and G.A. Father also appeals the denial of his Welfare and Institution Code section 388 motion. Both parents contend the juvenile court should have applied the parental benefit exception to adoption as the permanent plan. (§ 366.26, subd. (c)(1)(B)(i).) We find no error, and we affirm the judgment.

Petitioner Craig M. (father) in propria persona seeks an extraordinary writ from the juvenile court’s orders issued on June 18, 2018, at an 18-month review hearing terminating reunification services for Esther, the mother of his now two- and four-year-old daughters, and setting a Welfare and Institutions Code section 366.26 hearing. Father contends the juvenile court failed to grant his relatives placement preference and his trial counsel was ineffective. He seeks appointment of new counsel and an order granting him reunification services. We deny the petition.

Defendant Jose Rolando Ochoa contends on appeal that the trial court erred in imposing a laboratory fee pursuant to Health and Safety Code section 11372.5 (lab fee) and a drug program fee pursuant to section 11372.7. We affirm.

Chasee Rae Finley pleaded guilty to two counts of stalking (Pen. Code , § 646.9), one count of criminal threats (§ 422), and one count of annoying telephone calls (§ 653m, subd. (a)). She was sentenced to three years and four months in state prison. Respondent contends Finley’s appeal should be barred because she failed to obtain a certificate of probable cause as required by section 1237.5. We conclude Finley was not required to obtain a certificate of probable cause because the appeal does not attack the validity of the plea. Finley contends her sentence for criminal threats must be stayed pursuant to section 654 because it was incident to the same objective as the stalking conviction for the same victim. We conclude Finley was properly sentenced and affirm.

In 2009, our unpublished opinion in People v. See (Dec. 18, 2009, F055800), affirmed the judgment of appellant Lavang See, who had been convicted of murder (Pen. Code, § 187, subd. (a); count 1) and conspiracy to commit murder (§ 182, subd. (a)(1) & § 187; count 2). He was 16 years old when these crimes occurred. He was initially sentenced to life without the possibility of parole (LWOP), plus 25 years to life for a firearm enhancement.
However, following Miller v. Alabama (2012) 567 U.S. 460, appellant was resentenced. On September 21, 2016, his LWOP was reduced to an indeterminate term of 25 years to life (§ 187, subd. (a); count 1) with an additional 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).
Appellant subsequently appealed again to this court, asserting his matter should be remanded for the trial court to exercise its new statutory discretion to strike or dismiss the imposed firearm enhancement under section 12022.53, subdivisi

Appellant/defendant Jose Luis Torres was charged with attempted forcible commission of a lewd and lascivious act on his niece, a child under the age of 14 years (Pen. Code, §§ 664/288, subd. (b)(1)). He pleaded not guilty, and not guilty by reason of insanity, and the two trials were bifurcated.
At the guilt trial, the jury convicted defendant of the charged offense. At the bifurcated sanity phase, the same jury heard the evidence, but was deadlocked and a mistrial was declared. A new jury was impaneled for a second sanity trial, and that jury found defendant was sane when he committed the offense. Defendant was placed on probation for five years subject to certain terms and conditions.
On appeal, defendant contends there is insufficient evidence to support the jury’s findings of guilt on the substantive offense and that he was legally sane. He also contends the court failed to properly address his motion for new trial on the substantive offense. Defendant challenges se

Estrada was charged by an information filed in the Fresno County Superior Court with one count of murder. (Pen. Code, § 187, subd. (a).) The murder charge was accompanied by a drive-by shooting special circumstance allegation under section 190.2, subdivision (a)(21) (i.e., that the murder was committed by shooting a gun from a motor vehicle with the intent to kill). The special circumstance allegation subjected Estrada to a sentence of life imprisonment without the possibility of parole (LWOP). A firearm enhancement allegation under section 12022.53, subdivision (d), for “personally and intentionally” discharging a firearm and proximately causing great bodily injury or death, was also attached to the murder charge. This enhancement requires imposition of an “additional and consecutive” term of 25 years to life, beyond the sentence for the underlying offense.

In an information filed June 10, 2014, defendant Richard Armando Melendez was charged with one count of murder (Pen. Code, § 187, subd. (a); count 1) with the special circumstances of (1) being perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)) and (2) being carried out to further the activities of a criminal street gang (§ 190.2, subd. (a)(22). The information also charged defendant with three counts of attempted murder (§§ 664/187, subd. (a); counts 2–4).

A jury found Trevor Neil Schmidt guilty of one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and one count of battery with serious bodily injury (§ 243, subd. (d)). As to both counts, the jury further found that Schmidt personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial court made a finding that Schmidt had incurred three prison priors. (§ 667.5, subd. (b).) The trial court sentenced Schmidt to prison for a term of 10 years. In imposing sentence, the trial court selected an upper term sentence, finding no circumstances in mitigation connected to the case, and identifying numerous aggravating factors.
Schmidt contends that the trial court abused its discretion in imposing an upper term sentence because it failed to consider his mental illness as a mitigating factor. We conclude that the argument lacks merit, and we affirm the judgment.