CA Unpub Decisions

Phillip M. appeals the judgment declaring his daughter, Ava H., free from his custody and control (Fam. Code, § 7822, subd. (a)(2))[1] upon the petition of Ava's maternal grandmother and stepgrandfather, Lisa M. and Francisco M. (individually, grandmother and grandfather; together, the grandparents). Phillip contends there is not substantial evidence to support the finding that he left Ava with the grandparents with the intent to abandon her. We affirm.

Ronnie Leroy Bonaparte appeals the judgment sentencing him to prison after a jury found him guilty of murder. Bonaparte complains the trial court erred by admitting evidence that bolstered the credibility of one prosecution witness and excluding evidence that would have impeached the credibility of another. We affirm.

Kevin Melton pleaded guilty to inflicting corporal injury on a former cohabitant (Pen. Code,[1] § 273.5, subd. (a); count 2) and disobeying a court order (§ 273.6; count 4). Melton also admitted his prior conviction of inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)). The prosecution dismissed the remaining counts and special allegations in exchange for Melton's guilty plea. The court then suspended Melton's sentence, granted Melton formal probation, and placed him in custody for 365 days with credit for time served.
Melton appeals, contending the court abused its discretion because it failed to establish a factual basis for Melton's conditional guilty plea, which violated Melton's Fourteenth Amendment due process rights and constitutes reversible error. Melton further contends the probation order miscalculates the total amount of fines and fees Melton owes. We affirm the judgment as modified with instructions to correct the total amount of fines and fees.

Appellant F.H., the mother of the minors J.C. and D.C., appeals from the juvenile court’s orders terminating her parental rights. (Welf. & Inst. Code, §§ 395, 366.26.)[1] She contends the juvenile court erred in failing to find the beneficial parent/child relationship exception to adoption. We affirm.

A jury convicted defendant Tomoteo Vergara Pineda of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] and five counts of lewd and lascivious acts on a child (§ 288, subd. (a)) with enhancements for great bodily injury (§ 12022.7, subd. (a)) and multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 38 years to life in state prison.

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor J.S., age 12, was described by Welfare and Institutions Code section 602 in that he committed attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (a), 664—count one), second degree burglary (Pen. Code, §§ 459, 460, subd. (b)—counts two, three, six & eight), receiving stolen property (Pen. Code, § 496, subd. (a)—count four), destroying property (Pen. Code, § 594, subd. (b)(2)(A)—counts five & seven), vandalism (Pen. Code, § 594, subd. (b)(1)—count nine), negligent discharge of a firearm (Pen. Code, § 246.3—count ten), and possession by a minor of a concealable firearm (former Pen. Code, § 12101, subd. (a)(1), repealed by Stats. 2010, ch. 711, § 4, now Pen. Code, § 29610, added by Stats. 2010, ch. 711, § 6—count eleven). The court found the minor knew his actions in August 2010 and April 2011 were wrong within the meaning of Penal Code section 26. Following a contested disposition hearing, the court adjudged the minor its ward, committed him to juvenile hall for a period already served, and committed him to the probation department for Level A placement with a maximum confinement term of seven years. The minor was ordered to make restitution to the victims of his conduct.
On appeal, the minor contends (1) count eleven is not supported by sufficient evidence of knowing possession of a concealable firearm, (2) the Penal Code section 26 finding on count eleven is not supported by sufficient evidence he knew his conduct was wrong, and (3) the juvenile court failed to determine whether counts four and eleven were felonies or misdemeanors. We remand for the requisite determination.

A jury found defendant Vontre Knight guilty of evading a peace officer while driving with willful and wanton disregard for the safety of others and property (Veh. Code, § 2800.2, subd. (a)—count one) and evading a peace officer while driving on a highway in a direction opposite to that in which traffic lawfully moves (former Veh. Code, § 2800.4—count two). Following the trial court’s finding that defendant was previously convicted of four strike offenses, defendant was sentenced to an indeterminate term of 25 years to life.

On October 20, 2009, petitioner Randy Kemp pleaded no contest to battery on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), and on November 17, 2009, he was sentenced to state prison for two years. He was awarded presentence custody credits of 68 days for actual custody plus 34 days for good conduct.

Appellant Charee Gaston appeals from a judgment of conviction after a jury found him guilty on count one of second degree robbery. Counts two and three were dismissed. Appellant had suffered four prior prison convictions. The trial court sentenced appellant to seven years in state prison, awarded presentence conduct credits, and imposed fees and fines. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. We notified appellant he could file a supplemental brief within 30 days of the date his counsel filed the Wende brief. Appellant has not filed a supplemental brief. We affirm.

Affordable housing advocates Latinos Unidos de Napa (plaintiff) filed a petition for writ of mandate against the City of Napa (City), its city manager, and its community development director seeking to set aside the City’s approval of revisions to the housing element of its general plan, and related general plan and zoning amendments (the Project), on the ground that an environmental impact report (EIR) for the Project is required. The City had concluded the Project would not result in any new significant environmental effects that were not identified and mitigated in its 1998 General Plan Program EIR, and filed a notice of determination to that effect. After the trial court erroneously dismissed plaintiff’s petition on statute of limitations grounds, we reversed the judgment in Latinos Unidos de Napa v. City of Napa. (2011) 196 Cal.App.4th 1154. The trial court subsequently denied the petition on its merits, agreeing with the City’s legal analysis and concluding plaintiff had waived its right to challenge the sufficiency of the evidence. We find no error and affirm.

Appellant Britney S. (“Mother”) appeals from the juvenile dependency court’s order granting the father’s Welfare and Institutions Code[1] section 388 petition to remove the minor Destiny S. from her placement in the maternal grandmother’s home. As we shall explain, because Mother’s reunification services have been terminated and because Mother has not shown how the court’s order injures her interests, she has failed to demonstrate that she has standing to challenge the order. Accordingly, we dismiss the appeal.

Following a failed real estate transaction, Charon Solutions Inc. (Charon), owned by Perry Leonard Segal (Segal), sued Peachtree Financial Corporation (Peachtree) and its owner Peaches Nong Jensen (Jensen), who in turn cross-complained. After neither side prevailed, they sued each other for malicious prosecution. Peachtree and Jensen also sued a number of attorneys, including the Law Offices of Justin J, Schrenger, Justin J. Schrenger, Marcin Lambirth LLP, John B. Marcin, Timothy Lambirth, Regina Ashkinadze, Graham Bentley and Lisa Miller (sometimes collectively Attorneys). In turn, the Attorneys and Charon and Segal on the one hand, and Peachtree and Jensen on the other, filed special motions to strike the malicious prosecution complaints pursuant to Code of Civil Procedure section 425.16.[1] With the exception of two causes of action initially alleged by Charon, the trial court granted the motions to strike and granted in part the Attorneys’ motions for attorney fee awards.
We affirm. The trial court properly granted the Attorneys’ and Charon’s and Segal’s motions to strike. Peachtree and Jensen failed to meet their burden to demonstrate a probability of prevailing on essential elements of their malicious prosecution cause of action. Peachtree failed to establish it received a favorable termination, Jensen failed to establish that Charon and Segal lacked probable cause to bring and maintain the underlying action, and both parties failed to show that Charon’s first attorney acted with malice. The trial court also properly declined to award attorney fees for an attorney who was “of counsel” to the firm he represented. Finally, the trial court properly granted Peachtree’s and Jensen’s motion to strike, as Charon and Segal failed to meet their burden to show Peachtree lacked probable cause to bring and maintain its cross-complaint.

The trial court granted summary judgment in favor of defendants and respondents American Home Mortgage Servicing, Inc. (AHMSI) and Wells Fargo Bank, N.A., as Trustee for the Certificateholders of Soundview Home Loan Trust 2007-OPTI, Asset-Backed Certificates, Series 2007-OPTI (Wells Fargo), on the claims brought by plaintiff and appellant Barbara Wolford relating to the nonjudicial foreclosure of her home. We affirm. AHMSI and Wells Fargo met their threshold burden to show they satisfied the requirements necessary for nonjudicial foreclosure, and appellant failed to raise a triable issue of material fact. The trial court here was not bound by a ruling denying summary judgment in a related case and appellant was not prejudiced by asserted improprieties in the foreclosure process.

This lawsuit brought by plaintiff Irma Renteria Jimenez involves the death of her husband, Rafael Jimenez, a tree trimmer for the City of Inglewood. Mr. Jimenez was pulverized when his body was drawn into the feed wheel of a brush chipper manufactured by defendant Morbark, Inc. One witness saw Mr. Jimenez’s body being drawn into the brush chipper, but no one saw how Mr. Jimenez came to be in the feed chute of the machine. Plaintiff’s theory was that Mr. Jimenez’s gloved hand became entangled in the Chinese elm tree branches that he had been feeding into the chipper and he could not free himself. If the brush chipper had been equipped with a lower control bar or “knee bar,” Mr. Jimenez’s body would have hit the knee bar, automatically shutting off the brush chipper, and the accident would not have occurred. Defendant’s theory was that Mr. Jimenez, contrary to safety instructions never to allow one’s hands to enter the infeed spout, climbed onto the feed tray in order to clear a jam or otherwise to get the trimmings to feed into the feed wheel, and then was somehow caught by the feed wheel – a scenario in which a knee bar would not have prevented the accident.