CA Unpub Decisions

Shane Michael Greisofe pleaded guilty to five counts of first degree burglary of an inhabited dwelling (Pen. Code, §§ 459, 460) and admitted various enhancements based on prior convictions. The trial court sentenced him to a total term of over 26 years in state prison. On appeal, Greisofe contends the court abused its discretion by allegedly failing to consider his substance abuse problem as a relevant factor in sentencing. However, during the sentencing hearing, defense counsel asserted no objection to the court's statement of reasons for its decision. Moreover, the court was aware of Greisofe's substance abuse history but believed he was "beyond rehabilitation" and needed to be imprisoned. We conclude Greisofe forfeited his claim on appeal and in any event, has failed to establish an abuse of the court's discretion. Accordingly, we affirm.

Scott Lee, a third party claimant, is seeking to appeal the trial court's restitution order in a criminal case. We considered Lee's purported appeal together with the appeal of the criminal case, People v. Dunham (Feb. 7, 2018, D068100) [nonpub. opn.] (Dunham I)).
Prior to Ronald Dunham's trial, the court froze the bank accounts of a company that Dunham controlled—Rodan Enterprises, LLC (Rodan)—under Penal Code section 186.11 to preserve assets for victim restitution. The "Freeze and Seize Law" (§ 186.11) is designed to provide restitution to white collar crime victims from assets under the convicted criminal's control. Subsequently, a jury found Dunham guilty of 20 fraud- and embezzlement-related felony counts involving mostly elderly victims in a "Cherokee Village" investment scheme, and found a section 186.11 aggravated white collar crime enhancement allegation to be true.

Between 2004 and 2007, Ronald Duane Dunham (and his agents) persuaded a number of elderly victims to invest over a million dollars with him, ostensibly to purchase undeveloped "lots" of land in Cherokee Village, Arkansas, and/or support Dunham's real estate development efforts there. As alleged by the People, Dunham intentionally misled the victims regarding material facts and, in one instance, embezzled funds with which he was entrusted. Dunham told the victims he would increase land values through the marketing and development of a retirement community, but did not inform them that a third party possessed the exclusive contractual right to sell tax delinquent lots and had a practice of selling its sizeable inventory of lots via online auction—all of which could negatively impact property values and the success of any development venture.

Following a jury trial, defendant Michael Wayne Flewell was convicted of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) Defendant admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) and the trial court sustained a strike allegation (§ 1170.12). Defendant was sentenced to a six-year state prison term.
On appeal, defendant contends his Vehicle Code section 10851 conviction (unlawfully driving or taking a vehicle) should be reduced to a misdemeanor under Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff Nov. 5, 2014, codified as § 1170.18 (Proposition 47)) because the vehicle in question was worth less than $950. Defendant also contends the trial court erred in failing to instruct on the value of the vehicle as an element of unlawfully driving or taking a vehicle and admitting evidence of defendant’s two prior Vehicle Code section 10851 convictions.

Defendant Tirone Felex Joseph pleaded no contest to assault by means of force likely to produce great bodily injury, and admitted personally inflicting great bodily injury on a non-accomplice, committing the assault for the benefit of a criminal street gang, and being a juvenile offender eligible to be prosecuted in a court of criminal jurisdiction. The trial court sentenced defendant to an aggregate term of 10 years in prison, comprised of the low-term of two years for assault, three years for the great bodily injury enhancement, and five years for the gang enhancement. Defendant did not obtain a certificate of probable cause.
Defendant now contends the trial court should not have imposed both enhancements because they were based on the infliction of great bodily injury on the same victim. We will dismiss the appeal for failure to obtain a certificate of probable cause.

Father O.F. appeals from the jurisdictional findings and dispositional orders of the juvenile court with respect to his three children, Skyler L., Chanel L., and Genesis L. We conclude that the juvenile court erred in conducting the jurisdictional and dispositional hearing in his absence without a waiver of his right to be present, but that the error was harmless under the circumstances of this case. We affirm.

Mother Vanessa A. appeals the order terminating her parental rights under Welfare & Institutions Code section 366.26. Before a court may terminate parental rights, it must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) A court may find that a child is “generally adoptable” (meaning her age and other factors do not make it difficult to find an adoptive parent) or “specifically adoptable” (meaning a willing adoptive family has already been found and no legal impediment to adoption exists). In this case, the court did not indicate whether it found Joselyn generally or specifically adoptable before it terminated mother’s parental rights.

This legal malpractice action arises from an underlying divorce case in which defendants represented plaintiff Neda Natan as successor counsel to attorney Irving Osser. (In re Marriage of Natan (L.A. County Super. Ct., No. BD522371)). Ms. Natan contends Mr. Osser committed malpractice in the underlying action, but she did not file a timely claim against him because defendants did not properly advise her. Her complaint alleges a single cause of action for legal malpractice against defendants based on two theories. The first is defendants’ failure to preserve Ms. Natan’s underlying malpractice claim against Mr. Osser. The other is defendants’ erroneous filing of a lis pendens in the underlying case, which resulted in a monetary sanctions order against Ms. Natan.

Appellant Jonathan Francisco Valle appeals his conviction of second degree murder. Appellant contends: (1) the trial court improperly restricted his expert’s testimony with respect to the effect of post-traumatic stress disorder (PTSD); (2) the trial court erred in giving CALCRIM No. 360 and in independently advising the jury midtrial that his expert’s testimony repeating statements appellant made during the diagnostic interview should not be considered for the truth of the matters asserted; and (3) the trial court erred in refusing to instruct on self-defense. We find no error in any of the trial court’s actions and affirm.

Defendant and appellant Charles Louis Labeaux (defendant) appeals from the judgment entered after his conviction of crimes including pimping, pandering, and making a criminal threat. In our initial opinion, we modified the judgment to eliminate the domestic violence fee and to add 33 days of presentence custody credits, and affirmed the judgment as modified. We granted defendant’s petition for rehearing to consider his request for resentencing under amended Penal Code section 12022.5, effective on January 1, 2018. On rehearing, we decline to remand for resentencing, and again modify and affirm the judgment.

Appellant Dijon O’Neal was convicted by a jury of oral copulation by force (Pen. Code, § 288a, subd. (c)(2)(A), count 1), penetration by foreign object (§ 289, sub. (a)(1)(A), count 2), and false imprisonment (§ 236, count 3). He appeals from the judgment, raising issues of Brady error, evidentiary error, erroneous release of a trial witness (the victim), and insufficiency of the evidence. We conclude his contentions lack merit, and affirm.

Xiao Ye Bai appeals from his judgment of conviction of murder and attempted murder. Appellant argues that the court abused its discretion in ordering him restrained during trial and failed to instruct the jury on voluntary and attempted voluntary manslaughter. Appellant also argues that the prosecutor committed misconduct. In his supplemental brief, he asks that we remand the cause for the trial court to exercise its discretion whether to strike or dismiss the firearm use enhancements. We remand the cause for that purpose; in all other respects we affirm the judgment.

M.P. (mother), appeals from an order terminating her parental rights to her 10 year-old daughter, A.F., under Welfare and Institutions Code section 366.26 and selecting adoption as A.F.’s permanent plan. Mother contends that the court erred by (1) failing to ensure that the Department of Family and Child Services (DFCS or the Department) gave notice of the section 366.26 proceedings under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and California law implementing ICWA and (2) determining that the beneficial parent-child exception to termination did not apply. We will affirm the order.

In this dispute between two beneficiaries of a trust, the court applied the unclean hands defense to deprive the trustee of $30,000 to which he is entitled based upon his behavior after the trust had been signed. The issue before the trial court involved the trustor’s intent in making distributions to her sons. The trustor’s intent is to be determined at the time she executed the trust and is unaffected by subsequent events. Because the trial court considered subsequent events in making its decision, we reverse.