CA Unpub Decisions

About 1:00 a.m. on the morning of November 14, 2015, police officers heard sounds of an argument coming from a parking lot in San Rafael. After entering the lot, the officers interviewed several persons who told them appellant possessed a gun. The officers detained appellant, who had exited the driver’s seat of a vehicle and was walking away, and searched his vehicle, finding a handgun loaded with a single bullet in the glove compartment.
The Marin County District Attorney charged appellant with carrying a concealed firearm within a vehicle without being the registered owner (Pen. Code, § 25400, subds. (a)(1) and (c)(6)), and appellant pleaded guilty to the charge pursuant to a negotiated disposition. The court reduced the conviction to a misdemeanor (§ 17, subd. (b)) and sentenced appellant to informal probation for three years.

A jury convicted Calvin Earl Odom of second degree murder (Pen. Code, § 187, subd. (a)) and possession of firearm by a felon (§ 29800, subd. (a)(1)). The jury found true the allegation that during the murder Odom personally and intentionally discharged a firearm causing great bodily injury and death. The trial court sentenced Odom to 40 years to life in prison, which included 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).
On appeal, Odom contends the court erred by instructing the jury with CALCRIM No. 315, on eyewitness identifications. We disagree and affirm Odom’s conviction. We remand for the limited purpose of allowing the trial court to exercise its discretion under section 12022.53, subdivision (h) (section 12022.53(h)).

Barbara Epis, a wealthy elderly woman and sophisticated real estate investor, entered into a number of business and real estate transactions with her attorney, Vernon Bradley, and her accountant, Scott Jolley. After losing close to a million dollars on certain transactions, Epis sued Bradley and Jolley for breach of contract, negligent and intentional misrepresentation, breach of fiduciary duty, and elder abuse, as well as for violation of the unfair competition law (UCL). (Bus. & Prof. Code, § 17200 et seq.) Bradley cross-complained, asserting causes of action for, among other things, breach of contract, a UCL claim, and declaratory relief. Most of the causes of action were tried to a jury, but the UCL and declaratory relief causes of action were tried to the court as equitable claims.
The gist of Epis’s appeal is that the court erroneously ruled against her on her UCL cause of action against Bradley. The court found Bradley violated Rule 3-300 of the Rules of Professional

The police saw Defendant Daniel Russell Cisneros trying to enter a locked pickup truck with a metal tool at 3:00 a.m. They questioned him, found an outstanding arrest warrant, and searched him incident to arrest. The police found methamphetamine in his pocket and a round of nine-millimeter ammunition in his truck. Cisneros pleaded no contest to possession of methamphetamine and possession of ammunition by a prohibited person. The trial court granted a three-year term of probation with 154 days in county jail.
Cisneros appeals from the denial of his motion to suppress the evidence. He does not challenge the search of his person, but he contends the search of his truck violated the Fourth Amendment. He contends we should remand to the trial court to determine whether the testifying police officer perjured himself at a hearing on the motion to suppress. We conclude the claims are without merit and we affirm the judgment.

Plaintiffs Jose and Marta Carnero appeal from a judgment of dismissal following an order sustaining without leave to amend the demurrer brought by respondent National Default Servicing Corporation (NDSC) and imposing sanctions on plaintiffs under Code of Civil Procedure section 128.7. Plaintiffs raise several issues in their appellate brief, but only those pertaining to the judgment in this action are cognizable—namely, that (1) the lawsuit, which alleged violations of the Homeowner Bill of Rights Act (HBOR) had merit; (2) the allegations of the complaint were not barred by res judicata or collateral estoppel; and (3) the superior court improperly imposed sanctions on them. We will affirm the judgment.

Charged with second degree robbery, but convicted by a jury of only the lesser included offense of attempted robbery (Pen. Code, §§ 211, 212.5, subd. (c)), defendant Tyler Lance Carothers appeals after being sentenced to 12 years in prison—two years for the attempted robbery and one five-year term for each of two prior serious felony convictions (§§ 667, subd. (a)(1), 1192.7). He contends the jury’s not guilty verdict on the robbery charge precludes, as a matter of law, a guilty verdict for attempted robbery given the specific facts of his case. We disagree and affirm the judgment.

In June 2009, appellant McInerney & Dillon (McInerney), obtained a default money judgment for $841,747.15 against respondent Wendy Alter Hermann, and a declaration that it had a lien on any and all proceeds Hermann obtained from three matters. Seven years later, the trial court summarily granted Hermann’s motion to set aside and vacate the default judgment. McInerney contends no legal basis supports the trial court’s order. For the reasons stated below, we conclude the court properly exercised its discretion in determining the lien was void and unenforceable, but erred in vacating the money judgment, which was not void on its face and equitable relief was not justified due to Hermann’s lack of due diligence. Accordingly, we affirm in part, reverse in part, and remand the matter for further proceedings.

ORIGINAL PROCEEDINGS; petition for writ of mandate and/or prohibition. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Lisa Bertolino-Mueting, Tulare County Public Defender, Thomas McGuire, Assistant Public Defender, and Brian E. Schulte, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Lowe and Barton Bowers, Deputy Attorneys General, for Real Party in Interest.
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Petitioner requests that he be released from custody pursuant to Jackson v. Indiana (1972) 406 U.S. 715 and In re Davis (1973) 8 Cal.3d 798, and that the charges against him be dismissed.

Minor Z.A. was found to have committed second degree robbery. His appointed counsel asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Through counsel, minor requests that we address whether the juvenile court erred when it admitted evidence of (1) the in-field identification, (2) minor’s custodial statements to a detective, and (3) the conversation between minor and his companion at the police station. He also asks that we address whether the court erred when it found the petition’s allegation true. Finding no arguable error that would result in a disposition more favorable to minor, we affirm.

Defendant and appellant, Manuel Robert O’Rourke, sprayed several people at a bus stop with pepper spray. Defendant appeals from the judgment entered following jury convictions for use of tear gas (Pen. Code, § 22810, subd. (g)(1); count 2) and unlawful use of tear gas (§ 22900; count 3). Defendant waived his right to a jury trial and admitted two prison priors (§§ 667.5, subd. (b), 1170.12, subds. (b), (c)(1)) and a serious or violent felony prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) as to count 2. The trial court sentenced defendant to seven years in prison.

In December 1998, defendants and appellants Mario Ortega and Jimmy Arevalo were convicted by separate juries of carjacking, kidnapping and sexual offenses they committed as 16 and 15 year olds, respectively. Defendants’ sentences (55 years to life) were vacated when the People conceded that defendants were entitled to resentencing in compliance with the California Supreme Court’s decision in People v. Caballero (2012) 55 Cal.4th 262 [juvenile’s sentence violates Eighth Amendment rights against cruel and unusual punishment because it amounts to a de facto life without the possibility of parole (LWOP) sentence for nonhomicide crimes] (Caballero). On April 10, 2014, defendants were resentenced to indeterminate terms of 40 years to life. They appealed, contending that their sentences constitute de facto LWOP sentences in violation of the Eighth Amendment, and that Penal Code section 3051 violates their equal protection rights because it excludes juveniles tried as adults and sent

APPEAL from judgments of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed in part and conditionally reversed in part with directions.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent.
M.M. (Mother) appeals the jurisdiction and disposition orders declaring her daughters Athena H., Amelia H., and A.H. (collectively, the children) dependents of the court under Welfare and Institutions Code section 300, subdivision (b) and removing them from parental custody. Mother contends the orders and findings made at the contested jurisdiction and disposition hearing must be reversed and vacated because the hearing went forward without compliance with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).

APPEAL from an order of the Superior Court of San Diego County, Frederick Anthony Mandabach, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Parker J. Laney-Herdt, in pro. per., for Defendant, Cross-complainant and Appellant.
Alan J. Huntosh, in pro. per., for Plaintiff, Cross-defendant and Respondent.
Alan Huntosh obtained a civil harassment restraining order (Code Civ. Proc., § 527.6) against Parker Laney-Herdt after an altercation between the men occurred at Huntosh's home. Laney-Herdt appeals, challenging the sufficiency of the evidence in support of the restraining order. Finding no error, we affirm the order.

Pacific Intercultural Exchange (PIE) sued its insurer, Scottsdale Insurance Company (Scottsdale), seeking recovery of $106,102.63 in legal fees allegedly incurred for PIE's general counsel, Robert Gaglione, between February 2011 through October 2011 related to a lawsuit filed by a third party. PIE alleged Scottsdale was obligated to pay Gaglione to act as independent counsel under Civil Code section 2860 based on conflicts of interest between Scottsdale and PIE. The trial court granted Scottsdale summary judgment after concluding there was no conflict of interest between PIE and Scottsdale requiring appointment of independent counsel in addition to insurance defense counsel.