CA Unpub Decisions

Petitioner Mohamed Kamal Abbas filed a petition for writ of mandate ordering respondent court to file his notice of appeal or allow the constructive filing of an amended notice of appeal.

Appellant A.S. (Mother) is the mother of H.M., who was born in 2006 and taken into protective custody in March 2017 when he tested positive for benzodiazepine. A.M. (Father) is the father of H.M. The marriage of Mother and Father ended in dissolution, and their relationship has been contentious and hostile. H.M. suffers from cystic fibrosis. Mother and Father have disagreed on nearly every aspect of his care and have battled endlessly over custody.
Mother appeals from the juvenile court’s dispositional order. She does not contest dependency jurisdiction. Father has not filed a brief on appeal. Orange County Social Services Agency (SSA) has filed a respondent’s brief in support of the dispositional order.
Mother challenges several of the juvenile court’s dispositional rulings and findings. Most significantly, Mother contends the court erred by ordering that custody of H.M. be vested with Father rather than ordering continued placement with Mother’s parents.

Plaintiff Kyber Zaffarkhan appeals from the trial court’s postjudgment order granting defendants Justin Domesek and Greg Cherry a reduced portion of their requested attorney fees as the prevailing parties within the meaning of a fee provision in a shareholder agreement that Domesek signed, but Cherry did not. Before trial, Zaffarkhan dismissed his breach of contract claims against Cherry under the shareholder agreement, pursuing only tort claims against him (breach of fiduciary duty and unfair business practices), on which Cherry prevailed at trial. As Zaffarkhan correctly argues, while a party to a contract may be entitled to recover attorney fees as the prevailing party on tort claims arising out of the agreement—if the terms the parties agreed upon in signing the contract are broad enough (Santisas v. Goodin (1998) 17 Cal.4th 599, 617 (Santisas))—a nonsignatory is not entitled to fees on such tort claims, though he or she is the prevailing party.

A jury convicted Duyen Chuong Nguyen of assault with a deadly weapon (count 1), simple battery (count 2), and attempted petty theft (count 3). Nguyen received a suspended sentence on condition he serve 364 days in jail on count 1 and shorter concurrent sentences on counts 2 and 3. On appeal, he argues the evidence was insufficient to support the attempted petty theft conviction and the trial court erred by not staying execution of sentence on count 2 pursuant to Penal Code section 654 (further Code references are to the Penal Code). We conclude otherwise and affirm.

After a contested hearing pursuant to Welfare and Institutions Code section 366.26, R.D.’s (mother) parental rights to R.M. were terminated and the juvenile court found R.M. was adoptable. Mother contends the juvenile court erred in failing to apply the exception for a beneficial parent-child relationship to the preference for adoption. We affirm the orders of the juvenile court.

Appellant Juan Angel Acevedo appeals from his conviction pursuant to a plea of no contest to one count of violation of Vehicle Code section 2800.2, fleeing a pursuing police officer.
Appointed counsel for appellant asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to appellant advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from appellant. Finding no arguable error that would result in a disposition more favorable to appellant, we affirm the judgment.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Plaintiff filed a second amended complaint against defendant, the loan servicing agent for the mortgage on her real property. She alleged she applied for a loan modification agreement with a fixed rate loan, defendant represented it would, and did, obtain one for her, but the loan she received was a variable rate loan that caused her payments to increase beyond affordability. The trial court sustained defendant’s demurrer to the entire second amended complaint without leave to amend, on the ground it failed to state facts sufficient to constitute a cause of action, and plaintiff appeals. We conclude the demurrer to the breach of contract cause of action should not have been sustained, but the demurrer was properly sustained without leave to amend as to all other causes of action.

Defendant John Edwin Strickland, Jr., was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664 [count 1]) and assault with a deadly weapon (§ 245, subd. (a)(1) [count 2]). The information further alleged he personally inflicted great bodily injury (§ 12022.7, subd. (a)); personally used a deadly weapon (§ 12022, subd. (b)(1)); was previously convicted of first degree burglary, a qualifying “strike” offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serious felony (§ 667, subd. (a)(1)); and previously served three separate prison terms (§ 667.5, subd. (b)). Following a trial, the jury acquitted defendant of attempted murder, convicted him of assault with a deadly weapon, and did not find true the allegation he personally inflicted great bodily injury. In a bifurcated proceeding, the trial court found true the allegations related to his prior convictions.

Margaret Jeanette Alaniz and Anthony Gilbert Nunez were each convicted of the second degree murder of Oscar Seja and the torture of a victim referred to in the record as D. or Jane Doe. Both defendants now argue the trial court erred when it denied a defense request to allow D. to be referred to by her real name during the trial. They also argue they received incomplete advisements of their rights before the trial court accepted their admissions regarding prior offenses. Nunez further argues the evidence was insufficient to support his conviction of torture.
The People concede the trial court failed to advise defendants that by admitting to the prior offenses, they were giving up their rights to remain silent and confront witnesses. We agree with the People, however, that defendants were sufficiently made aware of these rights under the totality of the circumstances.

Defendant Keenan Antwaun Wilburn was convicted of Penal Code violations at the conclusion of a jury trial as follows: two counts of attempted murder against Francisco A. and Cassandra R., two counts of assault with a firearm carrying a loaded firearm as an active member of a criminal street gang, and active participation in a criminal street gang; unspecified statutory references are to the Penal Code. The jury found true the allegations that count 1 was willful and deliberate within the meaning of section 189, but found this same allegation not true in count 2. The jury found true the allegations in counts 1 and 2 that defendant intentionally discharged a firearm causing great bodily injury to one other than an accomplice. In counts 3 and 8, the jury found true allegations defendant committed those offenses while personally using a firearm.

Appellant Desiree Alayna Cruder appeals from the denial of her petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on her conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that her conviction under section 10851 is eligible for resentencing under Proposition 47 generally, that her petition factually demonstrated eligibility, and that the trial court should have permitted her the opportunity to offer evidence regarding the value of the stolen vehicle. For the reasons set forth below, we affirm without prejudice to the filing of a new petition.

Appellant Luis Francisco Abrams, Jr., appeals from the denial of his application for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on his prior conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that his conviction under Vehicle Code section 10851 is eligible for resentencing under Proposition 47 and that the trial court should have held a hearing on the value of the car in question. For the reasons set forth below, we reverse and remand for further proceedings.

Appellant Juan Antonio Sauceda appeals from the denial of his petition for resentencing under Penal Code section 1170.18, a statute added by Proposition 47. Appellant unsuccessfully requested a reduction in the sentence imposed on his prior conviction for theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). Appellant contends that a conviction under Vehicle Code section 10851 is eligible for resentencing under Proposition 47 because the voters intended that Proposition 47 change the punishment scheme for all automobile thefts through Penal Code section 490.2. Appellant further contends that equal protection concerns require treating convictions under Vehicle Code section 10851 the same as convictions for theft of all other property valued at less than $950, as convictions which are eligible for resentencing. For the reasons set forth below, we reverse and remand for further proceedings.

Appellant Randel Wayane Baughman, Jr., appeals from the denial of his petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on his prior conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that his conviction under section 10851 is eligible for resentencing under Proposition 47 and that the denial of his request violates principles of equal protection. For the reasons set forth below, we affirm without prejudice to the filing of a new petition.