CA Unpub Decisions

In a prior lawsuit, Richard Martel sued his former girlfriend. Attorney Robert Litchfield represented the girlfriend in that action.
Martel subsequently sued Litchfield based on communications and court documents created during the litigation between Martel and his girlfriend. Litchfield ultimately filed a first amended cross-complaint against Martel, alleging, among other things, that Martel intentionally inflicted severe emotional distress on Litchfield by making prank phone calls to Litchfield’s law office, leaving obscene, threatening and abusive telephone messages and e-mails for Litchfield, and slashing Litchfield’s car tire. The trial court sustained Martel’s demurrer to Litchfield’s first amended cross-complaint without leave to amend.

A jury convicted defendant Aaron Boone Montgomery of oral copulation by force, sexual intercourse by force, and genital penetration with a foreign object by force, and found true allegations that he used a knife and that there were two or more victims. The trial court sentenced him to a determinate sentence of six years in prison, consecutive to an indeterminate sentence of 140 years to life.
Defendant now contends (1) the trial court failed in its sua sponte duty to instruct on battery as a lesser included offense; (2) the trial court failed in its sua sponte duty to instruct on intoxication; and (3) the trial court erred in instructing the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony).
We conclude the trial court did not have a sua sponte duty in this case to instruct on battery or intoxication. And although the use of CALCRIM No. 361 was not warranted, the error was harmless.
We will affirm the judgment.

The People appeal from a judgment of dismissal, following an order granting respondent Carolina Elizabeth Mendoza’s motion to suppress pursuant to Penal Code section 1538.5. The People contend the trial court erred in determining that under the totality of the circumstances, the traffic officer lacked reasonable suspicion to detain respondent for violating Vehicle Code section 21658, subdivision (a).[1] We reverse.

Appellants Michelle M. (mother) and Gregg L. (father) appeal from the juvenile court’s order terminating parental rights over their children Dominik (born May 2006) and Sebastian (born May 2009). Both parents also appeal the denial of their respective petitions under Welfare and Institutions Code section 388,[1] seeking, in mother’s case, return of the children to her custody, and in father’s case, reinstatement of family reunification services. We dismiss both parents’ appeals.

Defendant law firm agreed to pay plaintiff $350 per hour for services performed by "a qualified rehabilitation professional and/or life care planner." The law firm disputed plaintiff's bill, claiming most of the services were not performed by a qualified professional. Plaintiff sued for breach of contract. The trial court found for plaintiff and awarded the entire amount billed as contract damages, plus prejudgment interest, costs and attorney fees.
We reduce the judgment by $630 for amounts billed for clerical work. In all other respects, we affirm.

The jury found defendant and appellant Floyd Atkins guilty of one count of discharging a laser at an aircraft, in violation of Penal Code section 247.5.[1] It acquitted defendant of a second section 247.5 violation.
The trial court sentenced defendant to three years in county jail, two of which were suspended, to be served under mandatory supervision pursuant to section 1170, subdivision (h)(5).
Defendant contends the trial court erred in admitting prejudicial evidence of prior uncharged crimes. He also challenges the trial court’s disposition of his motion for review of the personnel records of four police officers pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the judgment.

This case concerns two orders restraining the conduct of appellants Shu Ping Chan and her son, Jack Chen. After respondent Shang Jen Lo, a church pastor, engaged in litigation with Ms. Chan, appellants appeared at his church on multiple occasions. They talked with him after a service, interrupted a training session, sent an email to church leaders, and picketed on a nearby sidewalk. Fearing for his job, Mr. Lo petitioned the court for restraining orders. The trial court ordered appellants not to contact any members of the church, and to stay at least 100 yards away from the facility, among other locations. Finding two of the “keep away” directives unconstitutional, we reverse, but affirm the orders in all other respects.

A jury found Andre Lamon Woodberry guilty of second degree robbery. (Pen. Code, § 211.)[1] The jury also found true the special allegation that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Woodberry admitted having suffered prior convictions within the meaning of sections 1203, subdivision (e)(4) and 667.5, subdivision (b).[2] He was sentenced to a total of 14 years in prison. We affirm.

Luke Austin Waite and two of his friends committed an armed home invasion robbery of people they believed were drug dealers. Masked, clad in black clothing and armed with handguns, Waite and accomplice Jason Graves burst into the home and ordered the occupants to the wall or to the floor. During an ensuing fight, Waite shot one of his resisters in the torso and another in the face, both at close range. A third resister wrested Graves' gun from him and shot both Waite and Graves, killing the latter. Both victims of Waite's gunshots suffered serious injuries but survived.

Following lengthy plea bargain negotiations, defendant Tyrone Kates, represented by counsel, pled no contest to one count of making criminal threats (§ 422)[1] and admitted he had suffered one prior conviction within the meaning of the Three Strikes law. In return, the prosecution dismissed the remaining sentencing allegations. As agreed, the trial court imposed a four-year sentence and awarded the appropriate custody credits.
In this appeal, defendant contends that his “plea and sentence should be set aside because it was coerced” by judicial involvement in the plea bargaining process. We are not persuaded. California does not bar judicial participation in the plea bargaining process. The trial court may properly encourage the parties to attempt an informal resolution as long as it remains impartial. In this case, the trial court did no more than appropriately participate in the negotiations in order to help the parties reach a mutually agreeable disposition of the case. We therefore affirm the judgment.

Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Michael L. Amaro and Sanaz Cherazaie for Defendant and Respondent Champion Personal Services, LLC.
In the underlying action, appellant Claudia Andrade asserted claims for wrongful death and negligent infliction of emotional distress against respondents -- the operators of a nightclub and its security guards -- alleging that they negligently failed to protect her husband, who died while working as a parking valet near the nightclub. The trial court granted respondents’ summary judgment motions, concluding that they had no duty to protect appellant’s husband, and that their conduct was not a substantial factor in the causation of his death. At the hearing on the motions, the court also denied appellant’s request for a continuance to conduct further discovery. We reject appellant’s challenges to these rulings, and affirm.

Alfredo L. appeals from the dependency court’s jurisdictional and dispositional orders. He contends that the dependency court exhibited bias, prejudged his case, and prevented him from presenting an adequate case. He further contends that the jurisdictional and dispositional orders are not supported by substantial evidence.
We affirm.

A jury found defendant and appellant Michael A. Sims II guilty of first degree burglary (Pen. Code, § 459[1]), two counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and false imprisonment by violence (§ 236). The jury found true the allegation that the forcible oral copulation offenses were committed during the commission of a first degree burglary. (§ 667.61, subds. (a) & (d).) The trial court found true the allegations that defendant suffered two prior convictions within the meaning of sections 1170, subdivision (h)(3); 667, subdivisions (a)(1) and (b) through (i); and 1170.12, subdivisions (a) through (d). The trial sentenced defendant to state prison for a term of 10 years plus 150 years to life. On appeal, defendant contends that the trial court violated his right to due process when it denied his request to instruct the jury on attempted oral copulation as a lesser included offense of forcible oral copulation. We asked the parties to submit supplemental letters briefs addressing whether attempted forcible oral copulation is a lesser included offense of forcible oral copulation. We hold that attempted forcible oral copulation is a lesser included offense of forcible oral copulation, but that substantial evidence did not support an attempt instruction. Accordingly, we affirm the judgment.

Bethel Properties, LLC, Matt Talbert and Veris Cellars (Appellants) appeal from a judgment after a bench trial awarding respondent Armet's Landscaping, Inc., (Armet) $28,659.40 for breach of contract plus prejudgment interest and attorneys' fees of $36,061.50. We affirm.