CA Unpub Decisions

Steven Jon Smith appeals a judgment following conviction of attempted voluntary manslaughter, with findings that he personally used a firearm during commission of the crime and personally inflicted great bodily injury upon the victim. (Pen. Code, §§ 664, 192, subd. (a), 12022.5, subd. (a), 12022.7, subd. (a).)[1] We affirm.

A jury found defendant and appellant Damon L. Franklin guilty of attempted murder, being a felon in possession of a firearm, and criminal threats. The jury also found true gun and gang allegations. Defendant contends on appeal that the trial court abused its discretion by excluding evidence he was not the shooter and by admitting certain gang evidence. We reject these contentions but modify the judgment to correct defendant’s sentence. We affirm the judgment as modified.

Appellant and respondent are brother and sister. Their mother died leaving property to be disposed of by will, trust and deed. Appellant received virtually all of that property. Respondent successfully sought to set aside that disposition on the ground that appellant had unduly influenced their mother. Appellant contends that there is not substantial evidence to support the judgment of the trial court. The role of this court is elementary and clear: We decide questions of law. The trial court decides questions of fact. (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.) Here, the trial court found, inter alia: (1) appellant was "not credible," (2) appellant had the motive and the opportunity to exercise undue influence upon his mother and physically isolated her from her daughter; and (3) appellant overcame his mother's will, destroyed her "free agency," and caused an "unnatural disposition" of her estate. These findings and the evidence presented at trial amply support the judgment.

A jury found defendant and appellant John Cephas Young guilty of one count of burglary. On appeal, he contends that the judgment must be reversed due to instructional error, namely, the trial court failed to instruct on the defense of consent and should not have instructed on aiding and abetting and on insurance fraud. He also contends that the trial court abused its discretion by denying his Pitchess[1] motion and that there are errors in his sentence. We reject all contentions and affirm the judgment.

Plaintiff and respondent David Kapler resigned as the City of Alameda’s fire chief after he was photographed filling a personal vehicle with city gasoline and an administrative investigation resulted in a termination decision. Kapler then sued the city and several of its officials for breach of contract and wrongful termination. The city and its officials responded with a special motion to strike under Code of Civil Procedure section 425.16[1] (an “anti-SLAPP” motion) claiming (a) their actions in investigating and taking adverse action against Kapler are protected conduct under the statute and (b) Kapler cannot establish a probability of prevailing on his claims. The trial court denied the motion on the first ground—ruling Kapler’s claims do not arise from any protected conduct. We reverse, except as to one of Kapler’s breach of contract theories. As to all other theories and causes of action, we conclude the challenged conduct is protected under the anti-SLAPP statute and Kapler has not shown a probability of prevailing on the merits.

Plaintiff and appellant Henry Eaton was injured in a motor vehicle accident on Peabody Road in Vacaville. Eaton was riding northbound on a motorcycle when he collided with Alfatoon Edalat, who had been driving southbound in an automobile and was making an unlawful left turn across a set of double-double yellow lines denoted by Bott’s dots. The two double lines extend south from a concrete median and also form the left boundary of a left turn lane that extends approximately 75 feet further south, at which point the double lines open for left turns and there is a prominent left turn arrow painted on the roadway. In other words, instead of entering the left turn lane and turning left across the northbound lanes at the point indicated by the large arrow painted on the roadway, Edalat attempted to cut across Peabody just past the concrete median where the space between the two double lines is the greatest. Edalat has never disputed that he was making an illegal left turn, never expressed any confusion about the roadway markings, and never claimed there was any obstruction of his view down Peabody. Rather, he claimed Eaton must have been speeding because he seemed to come out of nowhere.
Eaton sustained significant injuries, and he and his wife, plaintiff and appellant Anna Eaton, sued the city, alleging the accident was caused, at least in part, by a dangerous condition of public property. The city moved for summary judgment on several grounds, including that there was no dangerous condition of public property at the accident site as a matter of law and the city was protected from liability, in any event, by design immunity. The trial court granted the motion on the ground there was no dangerous condition as a matter of law and therefore did not reach any other issue. We affirm.

K.G., a 16-year-old minor, appeals from an order denying her a hearing on her former Welfare and Institutions Code section 388[1] petition for modification. We find no error and affirm.

The juvenile court sustained allegations that defendant Justin W. (minor) committed vandalism causing $400 or more in damages. (Pen. Code, § 594, subds. (a), (b)(1).) The court declared the offense to be a felony, set the maximum term of confinement at three years, and placed minor on continued supervised probation.[1]
Minor timely filed a notice of appeal, and we appointed counsel to represent him. Counsel did not argue against minor, but advised the court he was unable to find an issue to argue on minor’s behalf. Minor was given 30 days to file written argument in his own behalf. That period has passed, and we have not received any communication from him. We have examined the entire record but have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Accordingly, we affirm the judgment.

A jury convicted defendant Larry Charles Arres of first degree murder, (count 1—Pen. Code, § 187, subd. (a)) and recklessly evading a peace officer (count 2—Veh. Code, § 2800.2). The jury additionally found true a special allegation defendant committed the murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15)) and personally used and intentionally discharged a firearm proximately causing death (Pen. Code, §§ 12022.53, subd. (d), 11932.7, subd. (c)(8)). In a bifurcated proceeding thereafter, the court found defendant guilty of being a felon in possession of a firearm (count 3—Pen. Code, § 12021, subd. (a)(1)) and found true an allegation defendant committed the count 1 offense while out on bail (Pen. Code, § 12022.1). The court sentenced defendant to a determinate term of five years, eight months on counts 2 and 3 and the bail enhancement attached to count 1, an indeterminate term of life without the possibility of parole on the count 1 offense with the lying in wait special enhancement, and an indeterminate term of 25 years to life on the personal use enhancement.
On appeal defendant contends he was deprived of his constitutional right to due process by the particular combination of the court’s instruction of the jury with CALCRIM Nos. 521 (first degree murder), 570 (voluntary manslaughter), 625 (voluntary intoxication), and 728 (lying in wait special circumstance). He maintains this combination of instruction was misleading, ambiguous, and confusing with respect to the jury’s determination of defendant’s intent. In addition, defendant maintains the lying in wait special circumstance is unconstitutional in first degree murder cases based on a theory of premeditation and deliberation, because it does not sufficiently narrow the scope of eligible defendants. We affirm the judgment.

A jury convicted Katrina Ackles of two counts of child abuse (Pen. Code[1], § 273a, subd. (a)), and found true an allegation that she personally inflicted great bodily injury on a child under the age of five (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (d)). Ackles was sentenced to a determinate term of three years, four months in prison.
Ackles appeals contending the prosecutor committed prejudicial misconduct during cross-examination and in closing argument. Our review of the record leads us to the conclusion there was no misconduct by the prosecutor, even though the prosecutor made mistakes. We are satisfied there was no prejudice to Ackles's case.

A jury convicted defendant Diriki Hill of one count of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1), count 1), and found true the special allegation he personally used a knife in committing the assault (§ 1192.7, subd. (c)(23)). Hill pleaded guilty to two other counts and stipulated he had suffered three prior convictions that qualified as serious felonies and as strikes under the three strikes law. The court, after denying Hill's motion to dismiss the prior conviction allegations, sentenced him to 25 years to life plus a determinate term of five years.
On appeal, Hill contends the court abused its discretion when it denied his effort to impeach a prosecution witness with that witness's prior convictions. Hill also contends the court abused its discretion when it denied his motion to dismiss the prior conviction allegations.

“Defendant Steven Andrew Dehle pleaded no contest to vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1); further undesignated statutory references are to the Penal Code.) In exchange, the court dismissed three other counts related to the incident in question and it was agreed defendant would not be sent to state prison for more than four years. Imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that he serve 365 days in the county jail. Following a hearing, the trial court ordered defendant to make restitution to the decedent’s surviving spouse in the amount of $622,750.45.” (People v. Dehle (2008) 166 Cal.App.4th 1380, 1383 (Dehle).) On defendant’s appeal to this court, we reversed the restitution order because the trial court allowed the restitution hearing to go forward without the presence of the prosecutor. (Id. at pp. 1390-1391.)
In February 2011, following a contested restitution hearing in which the prosecutor participated, the trial court ordered defendant to pay $737,804.45 to the surviving spouse and $1,500 to the County of Siskiyou, for a total of $739,304.45.

In this petition for extraordinary writ,[1] the Department of Children and Family Services (Department) requests issuance of a peremptory writ of mandate directing the dependency court to vacate its May 10, 2012 order releasing P.B. to Terri B. (mother) pending adjudication and disposition of the Welfare and Institutions Code section 300[2] petition.[3] On May 29, 2012, we issued an alternative writ of mandate ordering the dependency court to vacate its May 10, 2012 release order and issue an order to detain the child under section 319, subdivision (d), or show cause why a peremptory writ ordering the dependency court to do so should not issue.

The juvenile court terminated mother O.E.’s and father G.M.’s parental rights over their infant child, J.M. On appeal, both parents and minor contend that the trial court erred when it terminated parental rights by declining to apply the beneficial parental relationship exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)[1] Finding no error, we affirm the juvenile court order.