CA Unpub Decisions

The jury acquitted defendant Jorge Jiron of the charged crime of first degree murder, but convicted him of the lesser included offense of voluntary manslaughter. (Pen. Code, 192, subd. (a).)[1] The jury found defendant personally used a broken bottle as a deadly weapon. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The judge sentenced defendant to the upper term of 11 years for voluntary manslaughter, plus one consecutive year for the deadly weapon enhancement. Defendant contends the court abused its discretion by sentencing him to the upper term for voluntary manslaughter. He argues the court imposed the upper term based on facts the jury found to be not true when it acquitted him of murder. Court disagree and affirm the judgment.

Defendant Rachel Angel Chavez was convicted, as an aider and abettor, of two counts of attempted murder and one count of aggravated assault. Her presence at the scene of the crime was uncontroverted. On appeal, defendant argues the trial court unnecessarily and erroneously instructed the jury that an aider and abettor need not be present at the scene of the crime for liability to attach. She contends the claimed error was prejudicial because the court allowed the prosecution to argue it had exceeded its burden of proof, effectively allowing the prosecutor to equate presence with guilt. Court affirm. The trial court did not err in giving the instruction for three reasons. First, defendant ignores the portion of the instruction that stated presence alone is insufficient for finding guilt as an aider and abettor. Second, defendant admitted she was aware of the possibility of harm or death resulting from her actions and she nevertheless wielded and threw a lug wrench and a beer bottle during the fight instigated by her gang companions. Third, she also admitted providing backup for the gang. It was not reasonably likely that the jury was misled into failing to consider the relevant evidence when it determined guilt.

There are few areas of the law more dependent upon the sound discretion of the trial judge than criminal sentencing. And the decision about whether or not to admit a criminal defendant to probation is so loosely circumscribed as to be almost entirely discretionary. California law provides that, If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. (Pen. Code, 1203, subd. (E)(3).) Unwritten, but clearly implied in that sentence, is the phrase or it may not. Probation is an act of leniency, not a matter of right. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) And appellate courts, having not a human being before us but a written record, overturn such decisions only when they exceed[] the bounds of reason. (People v. Warner (1978) 20 Cal.3d 678, 683, quoting People v. Giminez (1975) 14 Cal.3d 68, 72.) Appellant David Thomas Duquette contends this is such a case, but we cannot agree.

Defendants Centex Homes, Newmeyer & Dillion, LLP, and Shawn E. Cowles, a lawyer in that firm (the latter two sometimes collectively referred to as defendant lawyers), appeal from the denial of their special motion under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code unless otherwise designated) to strike the complaint of plaintiffs SCC Acquisitions and Bruce Elieff for malicious prosecution, negligence, breach of fiduciary duty, and declaratory relief. Defendants claim the court erred because the claims arise from protected activity and plaintiffs did not demonstrate they had a probability of prevailing on the merits. Court disagree and affirm.

This is at least the fifth appeal generated by the underlying lawsuit,[1] which arises out of drainage problems in a Laguna Beach residential area. Cross-complainant and appellant Charles Kinney (Kinney) raises issues of particular concern with respect to the drainage affecting Virginia Way, a street on which he owns property, and also raises issues pertaining to certain assessments affecting his property.

Raymond Kiu Jin Yi was charged with three counts of assault with a firearm (Pen. Code, 245, subd. (a)(2) [counts 1, 2, & 6]) and three counts of making a criminal threat (id., 422 [counts 3, 4, & 5]). The jury convicted Yi on count 5, making a criminal threat against Gustavo Resendiz, and acquitted Yi on all other counts. The trial court sentenced Yi to 180 days in jail, followed by three years of probation, and stayed imposition of the jail term pending our issuance of a remittitur. Court affirm.

Plaintiff Alicia M. Haberman appeals from a summary judgment entered in favor of her former employer, Cengage Learning, Inc. (Cengage), her former supervisor, Rick Reed, and Cengages national sales manager, Eric Bredenberg (collectively referred to as defendants) as to her claims for sexual harassment, retaliation, breach of contract, and intentional infliction of emotional distress. The trial court granted defendants motions for summary judgment on grounds including (1) defendants alleged wrongful conduct was neither severe nor pervasive and did not create a hostile work environment as a matter of law; (2) no evidence showed a causal link between any alleged adverse employment action suffered by Haberman and any complaint by Haberman of sexual harassment; and (3) no evidence showed Haberman was subjected to extreme or outrageous conduct.

Defendant Ronald Lee Guy was convicted of numerous charges, all stemming from an incident in which defendant hit and threatened his former girlfriend, pursued her into a neighbors apartment, attacked and threatened the neighbor who tried to intervene, and choked and again hit his former girlfriend. We affirm defendants convictions, but remand for retrial on a prior conviction and for resentencing. Defendant challenges his conviction for burglary. There was substantial evidence of defendants specific intent to commit a felony when he entered the neighbors apartment, and therefore the evidence was sufficient to support defendants burglary conviction.

Yolanda Marie Perez filed a notice of appeal after a jury found her guilty of committing one count of possession of methamphetamine for sale (Health & Saf. Code, 11378). The trial court suspended imposition of sentence and placed Perez on three years of supervised probation, conditioned on serving 180 days in jail, with credit for seven days. Court appointed counsel to represent Perez on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested we consider two issues: (1) whether admission of statements made by Perez to a police officer violated the Fifth and Sixth Amendments to the United States Constitution and (2) whether substantial evidence supported the jury verdict. Perez was given 30 days to file written arguments in her own behalf. Court have received nothing from her.

Leanne Michelle Fahrion and Daniel Rudolfo Mendez were each convicted of attempted robbery, and Mendez was additionally convicted of related gun crimes. In this appeal, both of them challenge the sufficiency of the evidence to support the attempted robbery conviction. Fahrion and Mendez make essentially the same argument; i.e., that the sole evidence supporting the attempted robbery charge was Fahrions act of grabbing the victims wallet off of the console of the car the two of them were occupying, and then immediately putting it back when he demanded she do so. Both appeals assert this rather docile effort does not include the element of force or fear necessary to constitute a robbery.

Bryan I. and Joyce B., now 12 and 10 years old, respectively, were removed from the custody and care of their mother, Debra B. (mother), in June 2008. Reunification services were denied, pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11), because mother had failed to reunify with and had her parental rights terminated to several of Bryan and Joyces half siblings, and had failed to correct the problems leading to those earlier dependency proceedings. (All further statutory references are to the Welfare and Institutions Code.) In May 2009, the juvenile court denied mothers petition under section 388, which asked the court to return the children to her care or order reunification services. The court also made findings that termination of parental rights would not be detrimental to Bryan and Joyce, that Bryan and Joyce had a probability of adoption but were difficult to place, and that no prospective adoptive parent had been identified. Pursuant to section 366.26, subdivisions (b)(3) and (c)(3), the court therefore identified adoption as the permanent plan for Bryan and Joyce, without terminating mothers parental rights, and ordered the Orange County Social Services Agency (SSA) to locate an adoptive family. Mother appealed from these orders. Court affirm.

N.O. seeks extraordinary relief from the orders of the juvenile court terminating reunification services and setting a permanent plan selection hearing in the dependency case of her daughter, B.P. She contends there is no substantial evidence to support the courts finding that she was offered reasonable reunification services or that there was no substantial probability of return to her custody within the next six months. The father, Daniel P., joins in the mothers petition without making any arguments on his own behalf. (Cal. Rules of Court, rule 8.200(a)(5).) We find substantial evidence supports the findings and deny relief.

Four-year-old R.R. petitions this court for relief from the order of the juvenile court refusing to terminate parental rights and free her for adoption. The juvenile court found termination would be detrimental to R.R. because of her relationships with her parents and siblings. R.R. claims these findings are not supported by substantial evidence. Her petition is joined by the Orange County Social Services Agency (SSA). Court grant relief.

M.U., mother of Kayla R. and Lauren R., seeks extraordinary relief from the order of the juvenile court terminating reunification services and setting a permanent plan selection hearing pursuant to Welfare and Institutions Code section 366.26. She contends there is insufficient evidence to support the finding that she failed to regularly participate or make substantive progress in her treatment plan. Court find sufficient evidence and deny relief.