CA Unpub Decisions

In Santa Cruz County case No. F19909, a jury convicted defendant Thomas Henry Silva of misdemeanor violating a criminal protective order by threat or violence (Pen. Code, § 166, subd. (c)(4), count 3),[1] dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2), count 4), and dissuading a witness from testifying (id. subd. (a)(2), count 5). It could not reach a verdict on counts charging criminal threat, assault with a deadly weapon, and intimate partner battery (counts 1, 2, and 6). The trial court dismissed counts 1, 2, and 6 in the interest of justice, revoked probation in Santa Cruz County case Nos. WF00879 and W13885, and sentenced defendant to 12 years and eight months in prison. The sentence included a five-year serious-felony sentence enhancement. (§ 667, subd. (a)(1) [person convicted of a serious felony shall receive five-year enhancement for each prior serious-felony conviction].) On appeal in Santa Cruz County case No. F19909, defendant contends that the trial court erred by (1) coercing the jury to return verdicts on counts 3 and 4 after an impasse, and (2) imposing the serious-felony enhancement. We disagree and affirm the judgment. On appeal in Santa Cruz County case Nos. WF00879 and W13885, defendant raises no issues. We therefore also affirm those judgments.

Defendant and appellant Steven B. Hall appeals the finding that he should be subject to a civil commitment as a mentally disordered offender (MDO). The current proceeding is the 10th time that defendant has been subject to MDO civil commitment proceedings. Defendant argues that, with respect to the current petition, the trial court erred in failing to advise defendant of his right to a jury trial at the MDO hearing. (See Pen. Code, § 2972, subd. (a).) He contends that the error is prejudicial per se, or, at the very least, that the Chapman[1] standard of error (harmless beyond a reasonable doubt) should apply because the error constitutes the violation of a federal constitutional right. We disagree. The right to jury trial is a matter of state law; the appropriate standard of prejudice is the Watson[2] standard, i.e., whether it is reasonably probable that a more favorable result would have been reached in the absence of the error. We conclude that the error was harmless under the Watson standard, and we affirm the trial court’s MDO order.

Defendant and appellant Luigi Giubbolini appeals from a restraining order issued against him in favor of plaintiff and respondent Holly Jarvinen pursuant to the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.; all further statutory references are to the Family Code unless otherwise stated). He argues the trial court “was not legally qualified to decide the case,” there was insufficient evidence supporting the order, and the court erred both in admitting certain photographs due to lack of foundation and in dismissing his self-defense claim. Finding no error, we affirm.

A jury awarded plaintiff Casello & Lincoln damages in the amount of $87,765 in this attorney fee collection action against defendant Tu My Tong.[1] Tong appeals the judgment, but her opening brief is incoherent (Tong did not file a reply brief). Tong fails to clearly identify alleged errors by the court. She also fails to provide legal citations and analysis to support her contentions of error (to the extent such alleged errors can be identified). Tong fails to cite to the record to support most of her factual assertions. Most of the asserted facts in the opening brief have nothing to do with the legal issues that can be identified. Tong’s appendix does not include page numbers on most pages, making it difficult to find the evidence to which the brief cites (when it actually does so). To the extent we can discern Tong’s contentions, they are unmeritorious. We therefore affirm the judgment.

Appellant/defendant Tony Phetchamphone (defendant) was charged and convicted after a jury trial in the Superior Court of Fresno County of committing several offenses against his father, Thonghanh Phetchamphone (Mr. Phetchamphone), during an altercation at their residence: count I, criminal threats (Pen. Code,[1] § 422); count II, dissuading a witness by force or threat, with the jury finding that he used force or the threat of force on the victim’s person or property (§ 136.1, subds. (b)(1), (c)(1)); and count III, misdemeanor battery (§ 242). Defendant had one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). He was sentenced to 11 years in prison.
On appeal, defendant contends his convictions for criminal threats and dissuading a witness are not supported by substantial evidence. Defendant further contends the trial court improperly permitted the prosecution to introduce evidence about his prior conviction for attempted second degree murder in Minnesota in 2002. Defendant argues the prior conviction constituted inadmissible propensity evidence and was extremely prejudicial. We will affirm.

The minor was ordered to serve six months of informal probation after the juvenile court in Los Angeles County found true allegations that he committed misdemeanor battery (Pen. Code, § 242) and misdemeanor disturbing the peace by fighting (Pen. Code, § 415, subd. (1).) As discussed below, we affirm the judgment.

Defendant and appellant P.S. (minor) appeals from the juvenile court’s declaration of his maximum term of confinement in case No. DL043744. We find no error and affirm the judgment.

Mother, a chronic user of methamphetamine, has five children who were born between 1997 and 2011. The present case was initiated in June 2011. The three older children—S.K. and H.K., twins born in 1997, and M.K, born in 2000—have been under the legal guardianship of the maternal grandmother (MGM) since October 30, 2012, when dependency proceedings were terminated as to them. The two younger children—I.F., and M.S., born in 2006 and 2011—live with the prospective adoptive parent.
Mother and MGM are challenging the finding of the juvenile court made on October 30, 2012, that the children were not a sibling set. In the meantime, the court ordered termination of parental rights for I.F. and M.S. on January 10, 2013.[1] Mother has not appealed, making the issues raised in these appeals moot. We dismiss the subject appeals.

On March 1, 2012, a second amended complaint[1] charged defendant and appellant William Bullington with four counts of felony second degree robbery under Penal Code[2] section 211 (counts 1-4). As to each count, the complaint also alleged that the offenses were serious felonies within the meaning of section 1192.7, subdivision (c); and violent felonies within the meaning of section 667.5, subdivision (c). Furthermore, the complaint alleged that defendant was eligible for imprisonment under section 1170, subdivision (h)(3).
After a jury trial, on September 28, 2012, the jury convicted defendant of three counts of robbery (counts 1, 3, 4). As to count 2, the jury was unable to reach a verdict.
On November 2, 2012, on a motion by the People, the court dismissed count 2. The trial court imposed a four-year state prison sentence, and awarded defendant credit for time served of 343 actual days and 51 conduct credits pursuant to section 2033.1.
On November 9, 2012, defendant filed a timely notice of appeal.

Defendant William Thomas Umstead appeals from judgment entered following jury convictions for committing corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (e)(1)[1]; count 1), and making criminal threats (§ 422; count 2). The jury also found true that defendant had two prior prison terms (§ 667.5, subd. (b)), had been convicted of a prior serious felony (§ 667, subd. (a)), and had a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12). The trial court sentenced defendant to 11 years in prison.
Defendant contends there was insufficient evidence to support his conviction for making unlawful criminal threats because the alleged threat was a conditional statement. We conclude the evidence was sufficient to establish the threat was unequivocal, unconditional, immediate, and specific. The judgment is affirmed.

Defendant Fernando Ernest Perez participated in a home invasion robbery in which a fellow gang member was shot and killed by one of the house’s residents. A jury convicted defendant of attempted home invasion robbery (§§ 664/211; 213, subd. (a)(1)(A)); home invasion robbery (§§ 211; 213, subd. (a)(1)(A)); burglary (§ 459); two counts of assault with a firearm (§ 245, subd. (a)(2)); and street terrorism (§ 186.22, subd. (a).) The jury also found true that a principal used a firearm, that a principal was armed with a firearm, and that the acts were committed at the direction of or for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(l); 12022, subd. (a)(1); 12022.53, subds. (b) & (e)(1).) The jury acquitted defendant of murder (§ 187) and found the personal gun use untrue. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the court found true the prison prior. (§ 667.5, subd. (b).)
The court sentenced defendant to a total term of 50 years to life in state prison. On appeal, defendant raised two issues: Miranda[2] error and sentencing error. The People concede the abstract of judgment must be corrected to reflect the pronouncement of judgment. Subject to that modification, we affirm the judgment.

When defendant Arturo Hernandez was 20 years old, he killed his grandmother who had raised him. A jury convicted him of first degree murder. The court sentenced him to prison for 55 years to life. On appeal, defendant challenges the elements of premeditation and deliberation. Defendant seeks either a reversal of his conviction or a reduction to second degree murder and a sentence of 30 years to life. We reject defendant’s arguments and affirm the judgment.

The San Bernardino County District Attorney’s Office filed an amended Welfare and Institutions Code section 602 petition alleging that defendant and appellant D.P. (minor) committed second degree commercial burglary (Pen. Code, § 459, count 1), petty theft (Pen. Code, § 484, subd. (a), count 2), and three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 3-5). The juvenile court dismissed counts 1 and 2 outright, minor admitted the allegation in count 4, and the court dismissed the remaining counts pursuant to the parties’ agreement. The court subsequently declared minor a ward and placed him on probation, under specified conditions, in the custody of his parents.
On appeal, minor contends that a few of the probation conditions requiring him to stay away from the victims are unconstitutionally vague and overbroad and should be modified to include a knowledge requirement. He further claims that one of the conditions is “confusing, vague and conflicting.” We agree that the terms at issue should be modified to include a knowledge requirement. Otherwise, we affirm the judgment.

On July 12, 2010, an information was filed alleging that defendant and appellant Oscar Charles Walton Clark committed child abuse under Penal Code section 273a, subdivision (a), a felony.[1] The information also alleged that defendant inflicted great bodily injury on a child under the age of five under section 12022.7, subdivision (d).
On August 2, 2011, jury trial commenced. On August 11, 2011, the jury found defendant guilty and the enhancement to be true. On September 9, 2011, the trial court sentenced defendant to state prison for nine years: the midterm of four years for violating section 273a, subdivision (a) and the midterm of five years for the section 12022.7, subdivision (d) enhancement.
On October 27, 2011, defendant filed a timely notice of appeal.