CA Unpub Decisions

A jury convicted Anthony Guarino, Jr. of gross vehicular manslaughter while intoxicated, for Marc Durham's death (Pen. Code,[1] § 191.5, subd. (a); count one); driving under the influence of alcohol and causing injury to Clemente Rieta (Veh. Code, § 23153, subd. (a); count two); and driving with a measurable blood alcohol level and causing injury to Rieta (Veh. Code, § 23153, subd. (b); count three.) As to counts one and two, the jury found true allegations that Guarino personally inflicted great bodily injury on Durham, who was not an accomplice (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)), and proximately caused bodily injury to Rieta, Moses Small, Elizabeth Reyes, Adolfo Reyes, Esain M. and Maria Jocson (Veh. Code, § 23558). As to counts two and three, the jury found true the same enhancement allegations against all of the same victims except Rieta.

A jury convicted Richard Darrell Turner of selling cocaine base. The trial court later found true a prior strike allegation and a Penal Code section 12022.1 allegation, but found the prosecution had not met its burden as to a prison prior allegation. (Undesignated statutory references are to the Penal Code.) The trial court sentenced Turner to a total prison term of eight years, consisting of the four-year midterm, doubled because of the strike. Turner appeals, contending (1) the evidence did not support his conviction, (2) the trial court abused its discretion in failing to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (3) the trial court erred by imposing a $50 probation report fee. We reject his arguments and affirm the judgment.

This case involves a dispute over WestAir Gases & Equipment, Inc.'s (WestAir) agreement to purchase Premier Patio Heating Specialists, LLC's (Premier) assets. Premier contends the judgment in favor of WestAir must be reversed because (1) the trial court improperly instructed the jury that it could consider whether WestAir was "honestly and genuinely" dissatisfied (i.e., a subjective test) with the condition of certain assets and instead should have instructed the jury to consider WestAir's purported dissatisfaction based on a "reasonable person" standard (i.e., an objective test), (2) the jury's finding that WestAir performed all of its obligations under the contract is not supported by substantial evidence, and (3) the jury's finding that WestAir acted in good faith is not supported by substantial evidence.
We disagree with Premier's contentions and affirm the judgment in favor of WestAir.

After a jury trial, defendant Ronald Joseph Pereira was convicted of robbery (Pen. Code, § 211; unless otherwise stated, all statutory references that follow are to the Penal Code), attempted carjacking (§§ 664/215, subd. (a)), felon in possession of a firearm (§ 12021, subd. (a)), and resisting an officer (§ 148, subd. (a)(1)). The trial court sentenced him to six years six months in state prison.
On appeal, defendant contends the trial court erred in failing to instruct the jury that the specific intent to take property for a robbery must be formed before or during the use of force or fear. We affirm.

Plaintiff Kevin Olson, a former correctional officer with the Department of Corrections and Rehabilitation (CDCR), appeals the trial court’s denial of his writ of administrative mandamus challenging his dismissal from CDCR employment for misconduct. Olson contends the trial court erred in finding that his testimony in the administrative proceedings was not credible. He further contends the trial court erred in sustaining the administrative law judge’s determination that Olson used unnecessary force against an inmate and was dishonest.
We find no error and affirm.

Real party in interest Contractors’ State Licensing Board (Board) entered into a settlement agreement and disciplinary order (disciplinary order) with plaintiff Alley & Company, Inc., whereby plaintiff admitted certain allegations in citations issued by the Board and the Board placed plaintiff on probation for a period of two years. Plaintiff later filed an application to set aside the disciplinary order, claiming it had been unaware at the time it agreed to the order that notice of the discipline would remain on the Board’s website for more than two years. Respondent Office of Administrative Hearings (OAH) denied plaintiff’s application to set aside the disciplinary order.
Plaintiff initiated this mandamus proceeding seeking an order compelling OAH to grant plaintiff’s application. The trial court granted the requested relief, and the Board appeals. We conclude plaintiff is not entitled to writ relief because its petition below was untimely. We therefore reverse.
Facts and Proceedings

The record on appeal is quite sparse. On January 14, 2013, defendant filed a request for the trial court to recall his sentence pursuant to Penal Code section 1170, subdivision (d). From the motion, we can determine that defendant was in a drug program pursuant to Proposition 36 (Pen. Code, §1210 et seq.), violated the conditions of his probation, and was sentenced. Defendant argued that he should not have been ordered to serve time in custody.[1] On January 17, the trial court denied the motion. A timely appeal from that denial followed.

Ebony B. (mother) appeals the termination of her parental rights to A.B., born in February 2010. Because we find that the juvenile court did not comply with the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), we conditionally reverse the termination order for the limited purpose of providing ICWA notice.

Phillip Alamillo Rivera appeals his sentence following his guilty plea to possession for sale of a controlled substance - heroin, a felony. (Health & Saf. Code, § 11351.) The trial court sentenced him to six years in state prison. He filed a "motion" requesting the court to strike for sentencing purposes his prior serious felony "strike" convictions for robbery and burglary. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court denied that request. We conclude Rivera has not met his burden to show an abuse of discretion. We affirm.

Gustavo R. (father) appeals from the juvenile court’s orders on a supplemental petition (Welf. & Inst. Code, § 387)[1] terminating a home-of-parent order and removing his son from his care. Father contends there was insufficient evidence supporting the orders. We affirm.

In August 2010 Richard Wade Anderson assaulted George Noonan, who later died.[1] Anderson was charged in a two-count amended information on September 8, 2011 with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))[2] and willful, deliberate and premeditated murder (§ 187, subd. (a)).[3] The information specially alleged as to both counts Anderson had suffered three serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two separate prison terms for felonies (§ 667.5, subd. (b)) (Super. Ct. L.A. case No. PA068384).[4]
In a separate superior court case Anderson was charged in a two-count amended information on October 4, 2011 with failing to register (§ 290, subd. (b)) and perjury (§ 118, subd. (a)) after he falsely stated his place of residence on his sex offender registration form in June 2010. As to both counts the information specially alleged Anderson had served three separate prison terms for felonies (§ 667.5, subd. (b)) (case No. PA068979).[5]

On August 8, 2012, a referral was received by Child Protective Services alleging that Alexander (born Dec. 2001) was the victim of emotional abuse by mother and mother’s daughter, Alyssa, was “at risk.”[2] The reporting party stated that Alexander had been admitted to BHC Alhambra Hospital. He was diagnosed with mood disorder. Alexander told the attending physician that he had “thoughts to hurt myself and hit myself,” with a plan to use a knife or strike himself in the face. Alexander presented with “increased aggression with his sibling suicidal ideations.” The reporting party also said Alexander had previously been diagnosed with posttraumatic stress syndrome and has had “[b]outs of [e]xplosions.” There were also allegations that mother failed to ensure Alexander took his prescribed medication and that due to mother’s ongoing abuse and neglect, Alexander was not displaying any improvement. Previously, in May 2012, Alexander was taken to BHC Alhambra Hospital after he said he wanted to kill his classmates and teacher.

The Los Angeles County District Attorney’s Office filed an information charging defendant with possession of marijuana for sale and alleging that he had suffered a prior strike conviction and had served a prior prison term.[1] (Pen. Code, § 667.5, subd. (b).) On July 19, 2012, defendant filed a Pitchess motion.[2] The court held an in camera hearing, examined the complaints in the deputy’s personnel file, and determined that nothing was discoverable. On September 7, 2012, defendant pled no contest to the marijuana charge and admitted the strike prior. He was sentenced to 32 months in state prison (the low term of 16 months doubled). On October 15, defendant filed a notice of appeal, based on the sentence or other matters occurring after the plea. He did not receive a certificate of probable cause.

In September 2011 Gary Anthony Chavez was charged in a felony complaint for extradition with the first degree murder of Alvina Jiminez (Pen. Code, § 187, subd. (a)),[1] with a special circumstance allegation the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)) and separate allegations he had used two deadly weapons (a knife and a sledge hammer) in committing the crime (§ 12022, subd. (b)(1)). A no-bail bench warrant was issued.