CA Unpub Decisions

In a bench trial, the court found Aaron Scott McClinton guilty of attempted voluntary manslaughter (Pen. Code,[1] §§ 192, subd. (a), 664) (count 1); two counts of assault with a firearm (§ 245, subd. (a)(2)); child abuse (§ 273a, subd. (a)); inflicting corporal injury on a spouse (§ 273.5, subd. (a)); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The trial court also made true findings on firearm sentencing enhancements (§§ 12022.5, subd. (a), 12022, subd. (a)(1)) and found the personal use of a deadly weapon (§ 1192.7, subd. (c)(23)). After finding that McClinton had one prior serious felony conviction within the meaning of section 667, subdivision (a)(1) and one prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, the trial court sentenced McClinton to prison for 34 years four months.

APPEAL from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed.
A jury convicted Lawrence Michael Dileva, Jr., of (1) gross vehicular manslaughter while intoxicated causing the death of Nicole Tropea (count 1: Pen. Code,[1] § 191.5, subd. (a)); (2) gross vehicular manslaughter while intoxicated causing the death of Molly Huckabey (count 2: § 191.5, subd. (a)); (3) driving under the influence causing injury to George Ortiz (count 3: Veh. Code, § 23153, subd. (a)); and (4) driving with a blood alcohol content of 0.08 percent or higher causing injury to Ortiz (count 4: Veh. Code, § 23153, subd. (b)).
During a bifurcated bench trial, and over defense objections under Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz) and the confrontation clause of the Sixth Amendment to the United States Constitution, the court relied on records contained in a section 969b packet in finding true an enhancement allegation that Dileva had one prior prison conviction within the meaning of section 667.5, subdivision (b). The court then sentenced Dileva to a total prison term of nine years eight months.
Dileva appeals, contending (1) the evidence is insufficient to support the jury's finding that he was the driver; (2) the court prejudicially abused its discretion by admitting under Evidence Code section 1101, subdivision (b) (hereafter referred to as Evidence Code section 1101(b)), evidence of his prior acts of driving misconduct to show identity; and (3) the court's admission during the bifurcated bench trial of the records contained in the Penal Code section 969b packet as evidence that he had suffered a prior prison conviction (Pen. Code, § 667.5, subd. (b)) violated his Sixth Amendment right to confrontation. We reject these contentions and affirm the judgment.

On February 10, 2008, in the late afternoon, plaintiff and appellant Elizabeth Clevenstine (Plaintiff) was in the process of getting packages from her car in a busy San Diego mall parking structure when she was grabbed by an unknown assailant, who told her to get in the car trunk and when she resisted, viciously stabbed her. She brought this personal injury action against defendants and respondents, mall owner UTC Venture, LLC (UTC), and its retained security firm of Professional Security Consultants (PSC; sometimes together Defendants), on theories of premises liability and negligence in providing some, but inadequate, mall security, in light of numerous known incidents of thefts and some third party violent acts against customers in the parking lot areas, making it reasonably foreseeable that additional protective measures should be taken.

Appointed counsel for defendant, Crystal Marie Dennis, asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find defendant is entitled to an additional day of conduct credit pursuant to Penal Code section 4019. Court will modify the judgment accordingly and affirm the judgment as modified.

The mother of minor S.J. appeals following a permanent plan hearing. The juvenile court denied mother's modification request for additional reunification services and ordered a plan of long-term foster care for the minor. (Welf. & Inst. Code, §§ 366.26, 395.)[1]
Mother contends the juvenile court abused its discretion, arguing that she demonstrated a change of circumstances in seeking the treatment recommended in her psychological evaluations. However, based on evidence that mother required long-term mental health treatment before she could safely parent her children, that mother abused the minor, and that the minor also had mental health concerns, we conclude that the juvenile court did not abuse its discretion. Court will affirm the orders of the juvenile court.

Defendant Peter Joseph Farrell was convicted by jury of felony driving under the influence of alcohol or drugs with a prior conviction for vehicular manslaughter while intoxicated. In a bench trial, the court found defendant's prior conviction for vehicular manslaughter constituted a strike offense. The trial court sentenced defendant to state prison for six years.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.

A jury convicted defendant George Vern Yount of transporting heroin and methamphetamine, and also of possessing heroin and drug paraphernalia. The jury deadlocked, however, on whether defendant possessed methamphetamine for sale, and that count was dismissed. Nonetheless, for purposes of sentencing, the trial court found that defendant failed his burden to show that he possessed the drugs for his personal use; accordingly, the trial court found that defendant was not eligible for Proposition 36 probation.[1]
Defendant contends on appeal that the trial court erred and abused its discretion in finding him ineligible for Proposition 36 probation. He argues that the trial court's finding was â€

A jury convicted defendant Eric Charles Olson of one count of issuing a criminal threat (Pen. Code, § 422),[1] three counts of misdemeanor assault (§ 240), and one count of misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)). With enhancements for two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667.5, subd. (b)), the trial court sentenced defendant to a state prison term of 28 years to life. Jail sentences for the misdemeanor convictions were ordered to run concurrently.
Defendant appeals, contending (1) insufficient evidence supports his conviction of issuing a criminal threat, (2) the trial court erred by failing to instruct on the lesser included offense of attempted criminal threat (§§ 664, 422), and (3) under section 654, the trial court should have stayed the sentences for defendant's convictions of assault and exhibiting a weapon (§§ 240, 417, subd. (a)(1)), committed against R.S.
We shall modify the judgment to stay the sentence for exhibiting a deadly weapon. (§ 417, subd. (a)(1).) In all other respects, Court shall affirm.

A.N. appeals from an order reinstating the termination of his parental rights to Violet D. and Roberta D. pursuant to Welfare and Institutions Code[1] section 366.26. The termination order was reinstated on limited remand following a stipulated order reversing the matter for compliance with the Indian Child Welfare Act (â€

The minor, C.C., appeals from an order sustaining a Welfare and Institutions Code section 602 petition and placing him home on probation. The February 23, 2010 petition filed by the Los Angeles County District Attorney's Office charged the minor with one count of second degree robbery, a felony (Pen. Code, § 211). After a contested adjudication hearing, the juvenile court found true the allegations the minor committed robbery and sustained the petition. The minor was declared a ward, ordered to pay restitution, and placed home on probation.
On October 22, 2009, 12-year-old, Julio L., was walking down the street when he was approached by the minor and a male companion. The minor, who was 16 years-old, was wearing a long Lakers jersey. Julio described the male as tall and white. The male told Julio to give him Julio's iPod. Julio tried to get away but the minor and the male blocked Julio's way. The male repeated, â€

Appellant appeals from summary adjudication against him on a continuing guaranty found by the trial court to have been signed by appellant, Mohammad Reza Arbabi (Arbabi), and enforceable in favor of respondent, Volvo Financial Services formerly known as Volvo Commercial Finance (Volvo).
Appellant contends (1) there is a dispute of material fact about whether the guaranty was properly executed or delivered; (2) even if appellant is held liable on the guaranty, he can only be charged with the unpaid balance on the first advance because the terms of the continuing guaranty required Volvo to notify him of its intention to make new advances; and (3) the implied covenant of good faith and fair dealing requires lenders notify guarantors when lenders intend to make new loans covered by a continuing guaranty. Court disagree and therefore affirm the judgment.

Richard Enrique Cardenas appeals from the judgment entered following his plea of no contest to 10 counts of second degree robbery (Pen. Code, § 211),[1] during the commission of each of which he personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Cardenas to 28 years in prison. Court affirm the judgment.

J.C. (mother) appeals an order terminating her parental rights as to M.R. and D.R. and the summary denial of petitions for modification. (Welf. & Inst. Code, § 388.)[1] Mother contends the denial of her section 388 petitions was an abuse of discretion, and the juvenile court erred in denying mother's request for a continuance of D.R.'s permanency planning hearing and in terminating mother's parental rights as to both children.
R.R. appeals the denial of a section 388 petition with respect to D.R. He also contends the juvenile court erroneously denied his request for a continuance of D.R.'s permanency planning hearing and improperly terminated his parental rights.
Court affirm the orders of the juvenile court.

Defendants and appellants TherMark Holdings, Inc. (Holdings) and TherMark, LLC (LLC) (collectively TherMark) appeal from the April 20, 2010, order dismissing as a Strategic Lawsuit Against Public Policy (SLAPP) the third and fourth causes of action of TherMark's cross-complaint against plaintiff and respondent Paul Harrison.[1] TherMark contends (1) the dismissed causes of action were not based on â€