CA Unpub Decisions

Kenneth David Howell appeals from the judgment entered after his conviction by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189),[1] two counts of aggravated sexual assault upon a child (§ 269, subds. (a)(4) & (a)(5)), and two counts of lewd act on a child by use of force. (§ 288. subd. (b)(1). Appellant admitted that he had served one prior prison term. (§ 667.5, subd. (b).) He was sentenced to prison for an indeterminate term of 55 years to life plus a consecutive determinate term of 17 years.
Appellant contends that the prosecutor improperly used his post-arrest silence to impeach him. He also contends that (1) the trial court erroneously instructed the jury, and (2) defense counsel was ineffective because she failed to object to some instructions and failed to request other instructions. We affirm. However, we direct the trial court to correct an omission in the abstract of judgment.

Respondent and appellant Gregory Lyons (Mr. Lyons), a security guard, was terminated from his employment at petitioner and respondent Healthsmart Pacific, Inc., doing business as Pacific Hospital of Long Beach (Pacific). Mr. Lyons filed an action against Pacific asserting a number of claims concerning his employment and termination. Pacific successfully moved for summary judgment in Mr. Lyons’s employment action. Thereafter, based on conduct it viewed as threatening, Pacific sought restraining orders against Mr. Lyons to protect certain employees. Also based on perceived threatening conduct, Fink & Steinberg, Pacific’s attorneys, sought restraining orders against Mr. Lyons to protect its employees.[1] The trial court issued permanent workplace violence restraining orders against Mr. Lyons and in favor of Pacific and its attorneys. Mr. Lyons appeals.
Mr. Lyons contends that none of the restraining orders is supported by substantial evidence and each of the restraining orders was issued in error because his alleged threatening communications were made in the course of litigation and thus were privileged. Mr. Lyons also contends that a firearm restriction was not justified and was issued without due process and the trial court was without jurisdiction to enjoin his behavior with respect to persons not named in Pacific’s petition for a restraining order. If there is sufficient evidence to support the trial court’s findings, without regard to Mr. Lyons’s evidence or credibility questions, and the trial court does not abuse its discretion, we must affirm. We are also required to resolve all factual conflicts and questions of credibility in favor of the party that prevailed in the trial court and draw all reasonable inferences in support of the trial court’s findings. If there is sufficient evidence that supports the trial court’s findings, that there is evidence that might also be reconciled with contrary findings does not justify a reversal of the orders. Thus, based on the standard of review we are required by law to follow, our power being limited, we must affirm.

Danny Lahave and Top Terraces, Inc. (Guarantors), appeal from a court trial on stipulated facts after the trial court entered a judgment in favor of “Bank of America, National Association, as successor by merger with LaSalle Bank National Association” (Noteholder) in the amount of $377,438.82. We are asked to determine whether a late fee consisting of 5 percent of the balance of a note constitutes a penalty unenforceable as a matter of public policy under New Mexico law against Guarantors, notwithstanding their purported waiver of any invalidity, illegality, or unenforceability of the note. We conclude the waiver is ineffective because the late fee constitutes a penalty in violation of New Mexico public policy and therefore is unenforceable. We reverse the judgment of the trial court.

Appellant Ranjit Chana (Ranjit)[1] contends he has been denied due process, and that the trial court abused its discretion when it denied his motion to vacate a default judgment entered against him in this marital dissolution action. We affirm due to Ranjit’s failure to provide an adequate record to permit appellate review.

Appellant Christopher Nathaniel Glasgow challenges his convictions for possession of cocaine base and marijuana for sale, possession of firearms and body armor by a felon, and unlawful possession of ammunition. He maintains that his judgment of conviction must be reversed due to insufficiency of the evidence and sentencing error. Respondent acknowledges certain errors in Glasgow’s sentence, and also contends that it contains other defects requiring resentencing. Although we reject Glasgow’s contentions regarding the sufficiency of the evidence, we conclude that his sentence is incorrect, and thus reverse the judgment against him for resentencing.
Appellant Annetta Marie Alvarez, Glasgow’s codefendant, was convicted of possession of cocaine base and marijuana for sale, storing a controlled substance, and unlawful firearm activity. Her court-appointed counsel has filed an opening brief raising no issues. Following our independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we conclude that no arguable issues exist, and affirm the judgment against her.

In a prior action, Confidential Report, LLC, sued Paragon Film Group, LLC, and Matthew McCombs for fraud and other causes of action. At some point during the proceedings, Paragon ceased conducting business and filed a certificate of dissolution with the California Secretary of State. Ultimately, the trial court granted McCombs’s motion for summary judgment, which was affirmed on appeal.
Thereafter, McCombs filed a complaint against Charles E. Ruben and Charles E. Ruben and Associates (the firm that represented Confidential in the underlying action, referred to collectively as Ruben) and Confidential for malicious prosecution based on Confidential’s fraud cause of action against McCombs. Confidential and Ruben brought a special motion to strike pursuant to Code of Civil Procedure section 425.16, which the trial court denied.[1] In this appeal, Confidential and Ruben argue that the court erred in denying the special motion to strike, contending that McCombs failed to establish a probability of prevailing on his claim that Confidential lacked probable cause and acted with malice in pursuing the underlying fraud action. We disagree and affirm the order.

A modification decision.

Defendants Dario Daniel Ramirez and Tomas Carrillo Ramirez appeal from the judgment entered following a jury trial in which they were convicted of second degree murder, attempted voluntary manslaughter, and mayhem. They challenge the sufficiency of evidence and contend that the prosecutor engaged in prejudicial misconduct. Tomas also contends the court’s instruction on the natural and probable consequences doctrine permitted him to be convicted on the basis of negligence and that the trial court erred by admitting statements he made after he invoked his right to silence during custodial interrogation. We affirm.

Appellant and defendant Tito Manuel appeals following the judgment entered following his no contest plea to unlawful taking or driving of a vehicle (Veh. Code § 10851, subd. (a)) and admission of two prison priors (Pen. Code § 667.5, subd. (b)). His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.

C.B.’s noncustodial father R.B. appeals from a dispositional order of the juvenile court denying him physical custody of his child. He contends the court should have granted him custody under Welfare and Institutions Code section 361.2,[1] a statute conferring on the noncustodial parent a qualified right to custody of a child, like C.B., who has been removed from the custodial parent. The juvenile court, father contends, erroneously applied a different statute. At a later status hearing, the court placed C.B. with mother and father jointly. The Humboldt County Department of Health and Human Services (department) contends the appeal is now moot. We agree, and order it dismissed.

Fernando Roy Guanill appeals from the revocation of his probation. Appellant’s probation stems from his conviction, based on his plea of no contest, of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1) [1]). Appellant’s counsel raises no issues, and requests an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. In accordance with Wende and Anders v. California (1967) 386 U.S. 738, appellant’s counsel elected to file a supplemental brief. Based on our review of the record and contentions raised in the supplemental brief, we find no arguable issue.

Appellant Timothy C. Warren appeals from an order denying his motion to suppress evidence. (Pen. Code, § 1538.5.)[1] Following entry of that order, appellant pled no contest to felony possession of methamphetamine for sale in violation of Health and Safety Code section 11378, subdivision (a), and was sentenced to three years to be served in jail and on mandatory supervised probation. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the trial court’s order.

The juvenile court sustained two charges of battery against defendant and appellant D.O. and placed D.O. on probation, subject to several conditions. On appeal, the minor challenges two of these conditions, one requiring him to avoid places that chiefly sell alcoholic beverages, and another prohibiting him from possessing items whose chief purpose is to promote use of drugs or alcohol. He contends these conditions are not sufficiently related to his criminal conduct and are overbroad and vague. We affirm the dispositional order.

Following a jury trial and imposition of sentence, Deshane Earl Warren appeals from his conviction of voluntary manslaughter (Pen. Code, § 192, subd. (a))[1] and personally using a firearm in the commission of this offense (§ 12022.5, subd. (a)). Appellant’s appointed counsel raises no issues, and requests an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Based on our review of the record and appellant’s contentions, we conclude that there are no arguable issues.