CA Unpub Decisions

A jury convicted defendant Coleen Iva Marie Torres of second degree murder, gross vehicular manslaughter while intoxicated, and driving under the influence of alcohol or drugs causing injury. But the trial court dismissed the conviction for driving under the influence causing injury and dismissed various multiple-victim enhancement allegations. The trial court sentenced defendant to 45 years to life in state prison.
Defendant now contends (1) the trial court’s response to a jury question coerced a guilty verdict, and any failure to preserve the issue constituted ineffective assistance of counsel; (2) a juror committed prejudicial misconduct; and (3) the minute order and abstract of judgment must be corrected to reflect that the trial court dismissed the conviction for driving under the influence causing injury and the multiple-victim enhancements.
We will affirm the judgment and direct the trial court to correct the minute order and abstract of judgment.

Defendant and appellant Afsaneh Royo and non-party Clovis Herndon Ventures, LLC (CHV) each owned an undivided 50 percent interest in certain undeveloped real property in Clovis. Following months of negotiations, Afsaneh entered into an agreement with two individual members of CHV, plaintiffs and respondents Christopher Perkins and James Svoboda, whereby (1) Perkins and Svoboda would pay back taxes due and owing on the property, (2) Afsaneh would transfer her interest in the property to Perkins and Svoboda, and (3) Perkins and Svoboda would pay Afsaneh $500,000 over the course of seven years. Perkins and Svoboda paid the back taxes, thereby avoiding a scheduled tax sale. Afsaneh failed to transfer her interest in the property.

Defendant Landry Lemell Daniels, Jr., (defendant) appeals after a jury found him guilty of two counts of resisting an executive officer by force or violence in violation of Penal Code section 69 (unless otherwise set forth, statutory section references that follow are to the Penal Code) and the trial court found two prior strike allegations and two prior prison term allegations to be true. Defendant was sentenced to 27 years to life in prison. Defendant argues the trial court erred. We affirm the judgment.

Appellants David J. and Stephanie L. Dovichi (the Dovichis) appeal from a directed verdict disposing of their malicious prosecution claim against respondent Jennifer McCartney (McCartney). This case arose after an unsuccessful suit by Sharon L. and David J. Bendahan (McCartney’s parents), which sought, among other things, a prescriptive easement over a strip of land contained within McCartney’s parents’ fenced backyard and a side yard, approximately 12 inches wide. The trial court dismissed these claims after it found that McCartney had probable cause to join in pursuing her parents’ lawsuit.
We note that, while the action in the trial court involved multiple claims alleging malicious prosecution, the Dovichis’ argument on appeal is limited to whether McCartney had probable cause to pursue the prescriptive easement claim brought by McCartney’s parents and thus we will limit our discussion to that claim.

It is undisputed that defendant Jose Nunez fatally shot his brother-in-law in the chest and head. At trial, defendant argued that he did not harbor malice because he unreasonably believed that he acted in self-defense. Defendant was convicted of first degree murder, and firearm enhancements were found true. On appeal, defendant argues that the court failed to give sua sponte an instruction limiting evidence obtained in violation of Miranda v. Arizona for impeachment purposes. In the alternative, defendant contends that his counsel was ineffective for failing to request the instruction. These arguments lack merit and we affirm the conviction. We remand for resentencing because the law now affords a trial court discretion to strike a firearm enhancement under Penal Code section 12022.53, and the record does not reveal how the trial court would have exercised its discretion.

Daniel Z., born in 2017, appeals from the dispositional order of the juvenile court. He challenges the jurisdictional findings on which the court declared him a dependent under Welfare and Institutions Code section 300, subdivisions (b) and (j). Because there is substantial evidence in the record to support the jurisdictional findings, we affirm the order.

Jonathan Michael Harris appeals the judgment following his conviction for sodomy of a child and related counts when his then-girlfriend caught him sodomizing her eight-year-old daughter, B.H. He contends his due process rights were violated when the trial court instructed the jury it could also consider B.H.’s testimony that he committed uncharged sexual offenses against her in order to infer he had a predisposition to commit the charged crimes. We find no violation of his rights. Even if we did, we find no prejudice. We affirm.

Appellant George Albert Montano was convicted of one count of second degree robbery in connection with his theft of items from a Burlington Coat Factory. He contends on appeal that the trial court should have instructed the jury sua sponte on the lesser included offense of petty theft, because a reasonable jury could have found he committed petty theft but not robbery. We disagree and affirm.

Jose Luis Hernandez appeals from his convictions on five counts for: unlawful sexual intercourse, sodomy and unlawful sexual penetration with a child age 10 years or younger and lewd or lascivious act on a child under age 14. He contends that reversal is required . We affirm.

Divine Poole appeals the judgment entered following a jury trial in which he was convicted of one count of first degree burglary. (Pen. Code, § 459.) The trial court sentenced appellant to a term of 16 months (one-third the midterm of four years) to run consecutively to the sentence in Los Angeles County Superior Court Case No. TA137598-02. The court awarded no custody credits.
Appellant contends the prosecutor improperly used a peremptory challenge to excuse the sole African-American juror from the venire, and the trial court erred in denying appellant’s Batson-Wheeler motion. We disagree and affirm the judgment of conviction. The Attorney General contends the trial court imposed an unauthorized sentence and erroneously ruled that appellant was not entitled to any custody credits. We disagree that the sentence the court imposed was unauthorized, and conclude that the prosecutor’s failure to object at sentencing forfeited the issue.

Divine Poole appeals the judgment entered following a jury trial in which he was convicted of one count of first degree burglary. (Pen. Code, § 459.) The trial court sentenced appellant to a term of 16 months (one-third the midterm of four years) to run consecutively to the sentence in Los Angeles County Superior Court Case No. TA137598-02. The court awarded no custody credits.
Appellant contends the prosecutor improperly used a peremptory challenge to excuse the sole African-American juror from the venire, and the trial court erred in denying appellant’s Batson-Wheeler motion. We disagree and affirm the judgment of conviction. The Attorney General contends the trial court imposed an unauthorized sentence and erroneously ruled that appellant was not entitled to any custody credits. We disagree that the sentence the court imposed was unauthorized, and conclude that the prosecutor’s failure to object at sentencing forfeited the issue.

In our prior opinion in this case we affirmed the award of attorney fees in the nature of sanctions to Edith Salas pursuant to Family Code section 271 but remanded the matter for the family law court to reduce the amount awarded by excluding fees incurred in connection with two aspects of the contested child custody proceedings between Salas and her former husband Ayman Farraj. (Salas v. Farraj (Sept. 1, 2015, B252053) [nonpub. opn.] (Salas I).) After examining billing statements from Salas’s attorneys, the court issued a revised fee order, reducing the original $123,087.50 award to $103,512.50.
On appeal Farraj argues the new fee order is not supported by substantial evidence. Farraj also contends the court abused its discretion by uncritically accepting the representations of Salas’s counsel concerning which billing entries to exclude, rather than conducting an independent analysis, as well as by denying his request for a continuance to permit him to more fully prepare his ca

This malicious prosecution action arises from a collection action brought against Lawrence Pasternack by Thomas McCullough, Jr. and his law firm (collectively, McCullough) on behalf of Easton Builders Corporation (Easton). After Pasternack prevailed in the collection action and settled with Easton on other claims, he sued McCullough for malicious prosecution. McCullough appeals from a denial of his special motion to strike the malicious prosecution complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Among other things, McCullough contends Pasternack cannot demonstrate a probability of prevailing because the trial court in the underlying collection action denied Pasternack’s motion for nonsuit; the denial established as a matter of law that McCullough and his client’s collection claim was legally tenable under the interim adverse judgment rule.

Jill Brightwell Hotvet sued her former employer First Wilshire Securities Management, Inc. (Management) for wrongful termination in violation of public policy, breach of contract and violation of multiple Labor Code provisions intended to protect employees from wage theft and retaliation. Management petitioned to compel arbitration of Hotvet’s complaint in accordance with rules requiring members and associated persons of the Financial Industry Regulatory Authority (FINRA) to arbitrate their disputes arising out of the business activities of a FINRA member or associated person of a FINRA member. The superior court denied the petition, ruling there was no agreement to arbitrate and, in any event, Management had not carried its burden to demonstrate it was a FINRA member or that the dispute fell within the scope of the arbitration agreement. The court’s ruling is only partially correct.