CA Unpub Decisions

Defendant was convicted following a jury trial of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)),[1] infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with enhancements for personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (e)). In this appeal she claims the trial court erred by failing to instruct the jury as requested by the defense that the specific intent required to prove attempted voluntary manslaughter may be negated by voluntary intoxication. We conclude that the instructions given by the trial court when viewed in the aggregate properly and adequately advised the jury on the law of specific intent and voluntary intoxication as related to the lesser offense of attempted voluntary manslaughter. Therefore, we affirm the judgment.

Georgiy M. Ognev appeals from a judgment upon a jury verdict finding him guilty of misdemeanor simple assault (Pen. Code, § 240) and misdemeanor elder abuse (Pen. Code, § 368). He contends that the trial court erroneously calculated both his presentence custody and conduct credits. We conclude that defendant must first seek relief on the issue of credits in the trial court and therefore dismiss the appeal.
Penal Code section 1237.1 provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”

Marcie Hodge (appellant) brought an action for defamation against the East Bay Express (the Express), a weekly news publication; Robert Gammon, the writer of an Express column called “Full Disclosure”; and Stephen Buel, the Express’s then editor (collectively respondents). The trial court granted respondents’ special motion to strike the complaint, pursuant to the provisions of California’s anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16).[1] Appellant now appeals, contending she showed a probability of prevailing on the merits and that, therefore, the court erred in granting the anti-SLAPP motion and dismissing her complaint. We shall affirm the judgment.

This is an appeal from the juvenile court’s jurisdictional findings of July 7, 2011 and dispositional order of September 2, 2011. Pursuant to these orders, the juvenile court found minor J.R. committed one felony count of aggravated assault with a deadly weapon resulting in great bodily injury, continued him as a ward, and placed him on probation under home supervision subject to serving 180 days in Juvenile Hall with 120 days of credit for time served. The juvenile court thereafter granted minor’s request for an order regarding eligibility for special immigrant juvenile status. This order, among other things, included findings that it was contrary to minor’s best interests to return to El Salvador and was in his best interests to remain in the United States. Following entry of this order and during pendency of this appeal, minor, who had reached the age of majority, consented through counsel to voluntary departure from this country in lieu of deportation. For reasons set forth below, we affirm the juvenile court’s decisions.

The court readjudged appellant, Steven S., a ward of the court after it sustained allegations in a petition (Welf. & Inst. Code, § 602) charging him with receiving stolen property (count 1/Pen. Code, § 496, subd. (a)),[1] petty theft (count 3/§ 484, subd. (a)), and resisting, delaying or obstructing a peace officer (count 4/§ 148, subd. (a)(1)).
On August 30, 2012, the juvenile court continued appellant as a ward of the court and placed him in his mother’s custody. On appeal, appellant contends the evidence is insufficient to sustain his adjudication for resisting, delaying or obstructing a peace officer. We affirm.

This is an appeal from a judgment denying a petition for writ of administrative mandate. (See Code Civ. Proc., § 1094.5, subd. (f).) The trial court concluded appellants were beneficially interested parties with a right to bring the petition to review respondent’s administrative decision and, addressing the merits of the petition, rejected appellants’ challenges to the administrative decision. We conclude, to the contrary, that appellants have not demonstrated a beneficial interest, as that term is defined in the case law, sufficient to challenge respondent’s administrative orders at issue in this proceeding. Respondent’s orders do not adversely affect any protected interest of any appellant. For this reason, we dismiss the appeal thereby, in net effect, affirming the judgment rejecting appellants’ challenges to the administrative decision. (See Code Civ. Proc., § 913.)

On July 23, 2009, a felony complaint charged defendant and appellant John Robert Bellett with burglary (Pen. Code, § 459, count 1);[1] petty theft with a prior (§§ 666, 484, subd. (a), count 2); making criminal threats (§ 422, count 3); and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)).
On August 13, 2009, counsel indicated that there was a negotiated settlement. Defendant asked for a Cruz[2] waiver due to the death of his mother and because he had his own business wherein he needed to clear things up before his incarceration. Defendant asked the court for two to three weeks to take care of his business. The court stated that it understood defendant’s request, but that the trustee could take care of the legal matters that needed to be resolved, and there was no need for defendant to be physically present. The court also noted that defendant’s mother had passed away in January and assumed that defendant had already paid his respects as it was eight months since her death. The court told defendant that it did not believe it was a good idea to release him on a Cruz waiver because if defendant failed to show up, he would be sentenced to the maximum term. Defendant reiterated his reasons for requesting the waiver. The court then informed defendant that he should speak with his trustee because it was not inclined to grant defendant’s request.

A jury convicted Htoo Aung of assault with a deadly weapon or force likely to produce great bodily harm. The trial court found two alleged prior convictions to be true. It sentenced Aung to an 11-year prison term, and ordered him to pay fines, including a criminal justice administrative fee (booking fee) in the amount of $154 under Government Code section 29550.1. (Undesignated statutory references are to the Government Code.) Aung did not object to the imposition of the booking fee on any grounds. He appeals, contending imposition of the booking fee denied him equal protection because section 29550.1, unlike sections 29550 and 29550.2, does not require a finding of ability to pay. He requests the booking fee be stricken. We decline to do so and affirm the judgment.

A jury convicted Eric Christopher Dunn of robbery with the use of a knife. (Pen. Code,[1] §§ 211 & 12022, subd. (b)(1).) Dunn admitted three prison priors (§ 667.5, subd. (b)); two serious felony prior convictions (§ 667, subd. (a)(1); and 14 strike priors (§ 667, subds. (b)-(i)).
The trial court denied Dunn's motion to strike at least 13 of the strike priors and sentenced him to an indeterminate term of 25 years to life plus one year for the use of the knife and 10 years for the two serious felony prior convictions.
Dunn appeals contending the trial court failed to obtain a proper waiver of Dunn's trial rights regarding his prior convictions, that the court abused its discretion in denying his request to strike 13 of his strike priors and that the abstract of judgment must be corrected. The respondent agrees the abstract of judgment must be amended and we will order correction of the abstract. We will otherwise reject Dunn's contentions and affirm.

The issue in this case is whether the trial court abused its discretion, on remand from an earlier appeal, by denying defendant an evidentiary hearing on his motion for a new trial based on juror misconduct. We find no abuse of discretion and accordingly, affirm the order.

Theresa McKenna appeals from a judgment dismissing her complaint for negligence and intentional interference with prospective economic advantage against the San Miguel Consolidated Fire Protection District (District) after the trial court sustained the District's demurrer to the complaint without leave to amend. McKenna contends the trial court erroneously found her complaint failed to state claims for direct and vicarious liability based on the unlawful manner in which the District processed her fire protection plan (fire plan). She alternatively contends the trial court should have granted her leave to amend her complaint to state a cause of action.
We agree with the District that the trial court correctly ruled the codes, regulations, and ordinances McKenna relied on did not provide any basis for direct liability because they created no mandatory duty owed to her. We further agree with the District that the trial court correctly ruled the District did not have direct or vicarious liability because the District and its employees are immune from liability for discretionary acts, including decisions in a permitting or approval process. The District is also immune from liability for any misrepresentations its employees may have made in processing the fire plan. As McKenna has not shown she can successfully amend her complaint, we conclude the trial court did not err in denying her leave to do so. Accordingly, we affirm the judgment.[1]

In these two consolidated appeals—D060453 (Martin I) and D061667 (Martin II)—Todd David Martin claims that (1) certain terms of his probation that the court found he had violated were improperly imposed because they were either unreasonable or unconstitutionally vague and/or overbroad; (2) even if they were properly imposed, the evidence presented at the two probation revocation hearings was insufficient to support the court's findings he had violated terms of his probation; and (3) after it revoked Martin's probation the second time, the court abused its discretion when it lifted the stay on the execution of the three-year prison sentence the court imposed after it revoked probation the first time because (he claims) any probation condition violations he committed were "de minimis and not wilful [sic]." We affirm the judgments.

Joseph Fusina purchased a five-acre parcel of undeveloped land (the Fusina Parcel or Fusina's Parcel) from Eveline Bustillos (Eveline). At the time of the sale, Eveline also owned a separate parcel (the Eveline Parcel or Eveline's Parcel) located in the same general vicinity as the Fusina Parcel. Around the time of the sale of the Fusina Parcel, Eveline transferred Eveline's Parcel to a trust, of which Esther Keefe Svaco is the trustee, and Eveline and others are beneficiaries. Neither Fusina's Parcel nor Eveline's Parcel is adjacent to a public road. Access to Fusina's Parcel and Eveline's Parcel is gained by way of a private access road (Access Road) that traverses several parcels,[1] including Eveline's Parcel and Fusina's Parcel. The Access Road reaches Eveline's Parcel first, then splits and continues on to Fusina's Parcel.
Svaco filed this lawsuit in which she contended that a provision in the covenants, conditions, and restrictions (CC&Rs) governing Fusina's Parcel and Eveline's Parcel required Fusina to contribute one-third of the costs related to improvements to the Access Road. Svaco sought to impose an equitable lien in the amount of $242,860.84 on Fusina's Parcel, and also brought claims for breach of contract and declaratory relief based on Fusina's alleged obligation to contribute to the costs of improving the Access Road. Fusina filed a cross-complaint in which he brought claims that included breach of contract and fraudulent concealment against Eveline, and a claim for rescission against Eveline and Svaco. Fusina's claims were based on his allegation that Eveline concealed her plan to construct the improvements to the Access Road prior to selling him the Fusina Parcel.

Alicia O., the mother of three-year-old Ronin D., appeals from an order of the Placer County Superior Court freeing Ronin from her custody and control and terminating her parental rights. ( "Fam. Code" Fam. Code,[1] 7822, subd. (a)(3)" § 7822, subd. (a)(3).) The court found that mother, with intent to abandon Ronin, had left him in the care and custody of his father, James D., for more than a year while maintaining only token communication with Ronin and providing him only token and de minimis support. ( Ibid.)
On appeal, mother contends (1) the trial court failed to consider whether Ronin’s interests required the appointment of independent counsel, and (2) the court failed to read and consider the investigation report. We affirm.