CA Unpub Decisions

Defendants Daniel Chong and Charlie Wi Wang appeal from the judgments entered following separate jury trials in which Wang was convicted of attempted murder and assault with a deadly weapon, with gang findings, and Chong was convicted of attempted murder, three counts of assault with a deadly weapon, and two counts of robbery, with gang findings as to the attempted murder and one of the assault charges. Chong contends the evidence was insufficient to support his attempted murder conviction, the trial court erred by consolidating the attempted murder charge with the remaining charges and by denying his motion to sever the attempted murder charge, and the trial court violated his confrontation and due process rights by precluding him from cross-examining the gang expert regarding his interviews with codefendants and witnesses. Wang contends the evidence was insufficient to support his attempted murder conviction and the gang enhancement findings, and the trial court erred by admitting a photograph of the injury suffered by the attempted murder victim. We agree with respect to Wang’s gang enhancement findings, but otherwise affirm.

Karmen Anderson appeals the judgment entered following his conviction by jury of attempted murder committed in a willful, deliberate and premeditated fashion and assault with a semiautomatic firearm. (Pen. Code, §§ 187, subd. (a), 664, subds. (a) & (f), 245, subd. (b).) The jury found Anderson personally used a firearm in the commission of both offenses. (Pen. Code, §§ 12022.53 subd. (b), 12022.5, subd. (a).)
Anderson contends the evidence was insufficient to support the finding the attempted murder was deliberate and premeditated, and the trial court erred in failing to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel or heat of passion, defense counsel rendered ineffective assistance in failing to request an instruction advising the jury provocation insufficient to reduce attempted murder to attempted voluntary manslaughter may be considered in determining whether the accused acted with deliberation and premeditation, and the trial court erroneously excused a deliberating juror.
As set forth below, we conclude the evidence supports the jury’s finding Anderson acted with deliberation and premeditation, the trial court had no sua sponte obligation to instruct on sudden quarrel/heat of passion as there was insufficient evidence a reasonable person in Anderson’s position would have been provoked. Further, on the facts presented, even if defense counsel had requested instruction on provocation as it relates to deliberation and premeditation, there is no reasonable probability of a different result. We also reject Anderson’s claim of error in the trial court’s excusal of a deliberating juror but agree with the People’s assertion the abstract of judgment must be amended to reflect the sentence imposed by the trial court. We therefore affirm the judgment as modified to reflect a 10-year firearm enhancement imposed by the trial court.

Kevin Dratton Sorrells appeals the judgment entered following his conviction by jury of assault with a firearm, criminal threats, dissuading a witness, false imprisonment by violence, child abuse, assault by means likely to produce great bodily injury and two counts of corporal injury to a spouse or cohabitant. (Pen. Code, §§ 245, subd. (a)(2), 422, 136.1, subd. (b)(3), 236, 273a, subd. (a), 245, subd. (a)(1), 273.5, subd. (a).) With respect to the convictions of assault with a firearm, criminal threats, dissuading a witness and false imprisonment by violence, the jury found Sorrells personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). Sorrells admitted a prior conviction within the meaning of the Three Strikes law (Pen. Code, § 667, subds. (b)-(i)) and within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced Sorrells to a term of 41 years in state prison.
The evidence showed Sorrells perpetrated domestic violence against five successive female partners. The last two, Osada and Moore, are the victims in this case. Sorrells contends the trial court committed evidentiary error, inter alia, in admitting evidence of uncharged incidents of domestic violence committed against Sorrells’s three other victims. He also claims sentencing error and inappropriate use of peremptory challenges. We reject these claims of error and affirm the judgment. We also reject Sorrells’s claim of error in the imposition of a $10,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).[1]

A modification decision.

A modification decision.

Defendants Martin Gardner Reiffin and Suzanne Reiffin appeal in propria persona from the judgment for plaintiff, attorney Beverly M. Hoey who also appears in propria persona. Hoey sued to collect fees for preparing trusts for the Reiffins’ property. The Reiffins mainly reargue the evidence, claiming that it should have led to a lower fee award. But “the burden [an appellant] must bear in seeking to upset the trial court’s determination of reasonable attorney fees is substantial” (Shannon v. Northern Counties Title Ins. Co. (1969) 270 Cal.App.2d 686, 688), and the Reiffins do not carry that burden with their factual arguments. The Reiffins’ legal arguments also lack merit. We affirm.

S.E. (mother) appeals from an order terminating her parental rights to her son John under Welfare and Institutions Code section 366.26.[1] She argues that her parental rights should not have been terminated because the “beneficial relationship” exception of section 366.26, subdivision (c)(1)(B)(i) applies. We affirm.

C.S. appeals from a dispositional order requiring that he complete the Youthful Offender Treatment Program after he admitted allegations that he committed an assault by means of force likely to produce great bodily injury. (Former Pen. Code, § 245, subd. (a)(1).) He argues that the case must be remanded for a determination of whether the offense is a felony or a misdemeanor. We agree and remand.

Elizabeth Karnazes (appellant) appeals from a judgment denying her petition for a conservatorship over her son Zachary Karnazes’s (respondent) estate. She contends: (1) the court erred in denying her request for a continuance of the hearing on the petition; and (2) her attorney engaged in “positive misconduct,” such that appellant “should be relieved of the consequences of [her] attorney[’s]” actions. We reject the contentions and affirm the judgment.

On April 5, 2010, defendant Ronald Dale McAlmond pleaded no contest to possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); the methamphetamine case). He was initially placed on a Proposition 36 drug diversion program (Pen. Code, § 1210.1),[1] but after multiple probation violations, the trial court terminated his Proposition 36 probation and placed him on formal probation for three years. By the time he was placed on formal probation, defendant had earned 289 days of presentence credits; therefore, the court ordered him to serve a 289-day county jail term as a condition of his formal probation and he was released from custody for time served.
Several months later, in a separate case, defendant was arrested on suspicion of committing a first-degree residential burglary (§ 459; the burglary case). Still on formal probation in the methamphetamine case, he also faced violation of probation proceedings.
A jury convicted defendant of first-degree residential burglary. The trial court also found that he violated his formal probation in the methamphetamine case and, for that reason, revoked and terminated his probation. He then received a four-year sentence for the burglary and a consecutive eight-month sentence in the methamphetamine case. He was awarded 307 days of presentence credits in the burglary case. Separately, in the methamphetamine case, he was awarded 43 days of presentence credits.

Gregory D. Edwards appeals from an adverse September 2011 order in favor of the County of Santa Clara, which entity appeared through its Department of Child Support Services (Department). (See Fam. Code, § 17304 [requiring each county to establish a department of child support services “responsible for promptly and effectively establishing, modifying, and enforcing child support obligations”].)[1] In that order, the court found that Edwards owed the sum of $169.50 in child support arrearages, rejecting his claim that he had made substantial overpayments for back child support. It also rejected his claim that the Department’s accounting of child support payments was significantly in error.
On appeal, Edwards argues that he established below that the Department’s accounting of child support arrearages was significantly in error, and that it had improperly levied on his bank account in 2010 to collect back child support. We conclude that there was substantial evidence to support the court’s express and implied factual findings and that it did not abuse its discretion in denying the relief sought by Edwards. We will therefore affirm the order.

Defendant Drew Roy Young stole various items from a home where his father and sister lived, and from the home of his brother’s landlord. He later sold these items to a pawn shop to pay debts incurred for drugs. He was charged with numerous crimes in two separate cases, but eventually pleaded no contest to two counts of grand theft (Pen. Code, § 487, subd. (c))[1] and one count of commercial burglary (§ 459). He also admitted to a probation violation in one of the cases. The trial court suspended imposition of sentence and placed defendant on three years felony probation, after which he filed a timely notice of appeal.
On appeal, defendant contends that several of his probation conditions are unconstitutionally vague and require modification. He also argues that insufficient evidence supported the trial court’s order that he pay certain probation-related fees. And he claims that he is entitled to additional presentence conduct credit under the January 2010 version of section 4019. In the alternative, he argues that principles of equal protection compel the retroactive application of the October 2011 version of section 4019 to grant him additional conduct credits.
For the reasons set forth below, we modify several of the challenged probation conditions, remand to the trial court to determine defendant’s ability to pay probation-related fees, and modify the judgment to grant defendant 188 days of conduct credit under the January 2010 version of section 4019.

On July 17, 2011, defendant “unlawfully took the property of another [and] withheld said property, knowing the property was stolen and obtained by theft, without the owner’s consent.” A felony complaint was filed against defendant on July 28, 2011, pursuant to which defendant was charged with burglary (Pen. Code, §§ 459-460),[1] receiving stolen property (§ 496, subd. (a)), and grand theft (§ 487, subd. (c)). Defendant was arraigned on July 29, 2011.

Veronica Germina Vega filed a petition for writ of mandate arguing the trial court erred in denying her additional conduct credits under the amendment to Penal Code section 4019[1] that became operative October 1, 2011, pursuant to criminal justice realignment. Vega relies primarily on the equal protection clause, but she does, briefly, claim section 4019’s plain language compels the same result. In his informal response, the Orange County District Attorney concedes the error based on equal protection principles.