CA Unpub Decisions

A jury found Billy Charles White guilty of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3); count 1) and of rape of an unconscious person (§ 261, subd. (a)(4)(A); count 2). The trial court sentenced White to three years in state prison and ordered him to register as a sex offender.
White contends the evidence is insufficient to prove under section 261 that when he engaged in sexual intercourse with the victim, he knew the victim was unable to resist because of intoxication (count 1) or because the victim was unconscious of the nature of the act of intercourse (count 2). White also contends the trial court prejudicially erred by refusing both to instruct the jury on mistake of fact and to grant his new trial motion based on juror misconduct. Finally, White contends the trial court abused its discretion when it denied him probation.

Appointed counsel for defendant Douglas Shane Brown has filed an opening brief that sets forth the facts of the case and 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).) After reviewing the entire record, we affirm the judgment.

Defendant John Christopher Connell appeals from an order denying a petition to recall his so-called “three strikes” sentence of 28 years to life, brought pursuant to the provisions of the Three Strikes Reform Act of 2012 (the Act), codified at Penal Code section 1170.126. (See Teal v. Superior Court (2014) 60 Cal.4th 595.)

Defendant Tony Lee Kitchen pleaded no contest to domestic violence. (Pen. Code, § 273.5, subd. (a).) As part of defendant’s plea agreement, the trial court postponed imposition of judgment to allow defendant to complete a residential rehabilitation treatment program. The trial court later found defendant failed to complete six months in a residential rehabilitation program and sentenced him to three years in state prison.

Defendant Joshua Michael Lowe was convicted of multiple charges related to a series of vehicle burglaries. On appeal, defendant requests this court review the sealed documents related to his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) to determine whether the trial court abused its discretion in determining there were no discoverable materials (Evid. Code, § 1043 et seq.). Because the trial court failed to swear in the custodian of records at the in camera hearing, we remand the case to the trial court with directions to hold a new hearing in which the oath is administered to the custodian of records before he testifies.

Defendant Steven Werner Mueck, an inmate serving 25 years to life in prison following conviction of a felony that was not violent (as defined by Pen. Code, §667.5, subd. (c)) or serious (as defined by § 1197.2, subd. (c)), filed a petition pursuant to Proposition 36, the Three Strikes Reform Act of 2012, to have his sentence recalled and to be resentenced. (§ 1170.126, subd. (b).) The Proposition 36 court denied the petition, finding resentencing defendant would pose an unreasonable risk of danger to public safety. Defendant’s sole contention on appeal is that the Proposition 36 court erred in denying his petition because it refused to apply the definition of “ ‘unreasonable risk of danger to public safety’ ” (§ 1170.18, subd. (c)) in Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18, subd. (c)), in considering his Proposition 36 petition.

Defendant Larry Firebaugh’s probation was revoked after he failed to complete a drug rehabilitation program ordered by the court. The previously imposed sentence of eight years eight months in state prison was then ordered executed. Defendant appeals that order, arguing that he “was denied his 14th Amendment due process protections when his probation was revoked without written notice of the claimed violation and a timely formal hearing providing him with the opportunity to present evidence in mitigation and in support of reinstatement and/or modification of the plea agreement.” We shall conclude that defendant forfeited his claims on appeal by failing to raise them below. Accordingly, we shall affirm the judgment.

Albert Salinas Lara was charged in a felony information with one felony count of possession of a slungshot (Pen. Code, § 22210), one misdemeanor count of petty theft (§ 484, subd. (a)), one misdemeanor count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), one misdemeanor count of possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and one misdemeanor count of trespass (§ 602, subd. (m)). He was convicted by jury of all misdemeanor counts. The jury was unable to reach a verdict on the felony count, which was later dismissed by the court pursuant to section 1385. Lara was sentenced to serve 365 days with presentence credits of 365 days. He filed a timely appeal.

Martha L. (mother) appeals from the dependency court’s March 10, 2016 order denying without a hearing her petition to change court orders under Welfare and Institutions Code section 388. We affirm the order, and dismiss as moot the portion of mother’s appeal challenging the court’s order as to her daughter, Lydia C.

Following a head-on vehicle collision, defendant Antonio Ibarra was convicted of two counts of driving under the influence of alcohol. On appeal, he argues there was insufficient evidence that he was driving the vehicle at the time of the collision. We find that there was sufficient evidence and affirm.

The mother, I.M., appeals from a January 20, 2016 order denying her Welfare and Institutions Code section 388 petition. She contends the juvenile court abused its discretion in summarily denying her section 388 petition. We affirm the order.

Plaintiffs and appellants Le Kun Wu and Katherine Wu sued, among others, defendants and appellants David Wan and Si Lau to recover money plaintiffs loaned to develop a project in Monterey Park. A jury rendered a special verdict in plaintiffs’ favor on contract and tort causes of action. Wan and Lau appeal, raising numerous issues concerning sufficiency of the evidence, instructional error, and excessiveness of the damages award. Because there was an error concerning the punitive damages awarded, we modify the judgment to correct it. We also clarify the amount of damages the jury awarded. We otherwise affirm the judgment as modified.

Defendants Bank of America, N.A. and The Bank of New York Mellon appeal from an order denying their motion to compel arbitration of plaintiff HPROF, LLC’s complaint for breach of contract. Defendants contend the trial court erred in concluding that they waived their right to arbitrate by unreasonably and prejudicially delaying the arbitration demand while actively participating in the litigation of plaintiff’s claim. On appeal, defendants argue that the question of waiver should have been decided by the arbitrator and, alternatively, that if the court had authority to decide the question, it erred in failing to compel arbitration because plaintiff did not make a sufficient showing of prejudice. We find no error and thus shall affirm the order.

C.A. (Mother) and I.L. (Father) appeal from the judgment terminating parental rights to their now two-year-old son, C.L. Father contends the juvenile court erred in summarily denying his Welfare and Institutions Code section 388 modification petition. Both parents maintain the court should have applied the “parental benefit exception” to adoption. (§ 366.26, subd. (c)(1)(B)(i).) We find no errors and affirm the judgment.