CA Unpub Decisions

A jury convicted appellant Darlene Sanchez of second degree murder (Pen. Code, 187, subd. (a)). The court imposed a sentence of 15 years to life in prison. On appeal, appellants sole contention is that the People used a peremptory challenge to remove an African-American potential juror from the jury panel solely on the basis of race, in violation of appellants rights under the United States and California Constitutions. (See Batsonv. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Court affirm.

The court found that appellant, A.M., was a person described in Welfare and Institutions Code section 602 after A.M. admitted 7 counts of felony vandalism (counts 1, 7-9, & 23-25/Pen. Code, 594, subd. (b)(1)), 18 counts of misdemeanor vandalism (counts 2-6, 10, 12-22, & 26/Pen. Code, 594, subd. (b)(2)(A)), and one count of petty theft (count 11/Pen. Code, 488).
On appeal, A.M. contends the court abused its discretion in ordering restitution for one victim. Court agree and will reverse the juvenile courts restitution order as to that victim. In all other respects, Court affirm the judgment.

In case No. 07CM2989, appellant, Jose Vega, pled guilty to misdemeanor domestic battery (Pen. Code, 243, subd. (e)(1)). In case No 07CM3288, Vega pled guilty to possession of cocaine (Health & Saf. Code, 11350, subd. (a)) and admitted violating his probation in case No. 07CM2989. On appeal, Vega contends the court erred in imposing two court security fines and two restitution fines in case No. 07CM2989. Court affirm.

Following a bench trial, the court convicted appellant, Richard James Savala, of possession of cocaine base (Health & Saf. Code, 11350, subd. (a)) and found that he admitted a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).[1] On appeal, Savala contends the court erred when it: 1) ordered him to undergo testing for the AIDS virus; and 2) imposed a one-year prior prison term enhancement. Court find merit to Savalas first contention and strike the order requiring AIDS testing. In all other respects, Court will affirm.

This appeal arises from a contested Welfare and Institutions Code section 366.26 hearing at which the juvenile court terminated appellant mothers parental rights and selected a permanent plan of adoption for her daughter J. Court affirm the judgment.

Defendants Coastal Vascular Specialists Medical Corporation (CVS) and Marcello A. Borzatta, M.D., challenge a referees statement of decision awarding lost rent damages and attorney fees to plaintiff Head and Neck Associates of Orange County (H&N). Defendants contend H&N breached a sub-sublease by refusing to consent to a proposed assignment of CVSs interest in the sub-sublease to a third party based on the sublessors objection to the assignment. Defendants also contend the trial court erred by allowing the referee to hear their posttrial motions, and awarding H&N attorney fees based on a fee provision in the sublease. Court also conclude the trial court did not err in allowing the referee to hear defendants posttrial motions because the parties stipulated to a general reference authorizing the referee to hear and determine all issues of fact and law in the action. We conclude, however, the trial court erred in awarding attorney fees. The sub sublease did not contain an attorney fee provision, and did not incorporate by reference the subleases fee provision. Accordingly, Court reverse the attorney fee award and affirm the judgment in all other respects.

This matter has been transferred to us from the Supreme Court (S153757) with directions to vacate our previous decision (People v. Evans (May 30, 2007) H029616 [nonpub. opn.]) and to reconsider the cause in light of People v. Towne (2008) 44 Cal.4th 63 (Towne). After reconsidering the issues in light of Towne, Court hereby vacate our previous decision and affirm the judgment.

This appeal arises out of a marital dissolution proceeding between Jodi J. Trivers and Patrick D. Quirk.[1] The parties have been before this court previously.[2] In this appeal, Patrick challenges an October 2006 order setting modified child support and awarding attorney fees. Concerning child support, Patrick principally attacks the percentage-based portions of the award, which the court applied to certain income, including stock option proceeds. Court conclude that the trial court erred both in setting child support and in awarding fees. The errors require reversal and remand.

Hollister residents, appellants Arthur Amarillas and five family members (collectively, appellants), brought suit against an unknown entity, Oak Creek Neighborhood Watch Committee, and fictitious parties. Appellants later filed a first amended complaint (Complaint) in which they sued seven other Hollister residents, respondents Darrell Campolong, Greg Colla, Vicki Colla, Robert Anthony, Shirley Anthony, Michael Gallagher, and Erika Gallagher (collectively, respondents). Appellants alleged that respondents were involved in a campaign of intimidation and harassment that included (1) writing an anonymous letter dated April 10, 2006 (the April 10 Letter) to appellants complaining of conditions on their property and threatening to report [s]uspicious illegal activity to numerous governmental agencies and to the press if the conditions were not rectified; and (2) subsequently engag[ing] in a pattern of annoyance, harassment and intimidation directed toward [appellants]. Court affirm the orders granting the anti-SLAPP motions to strike.

A jury convicted defendant Anthony S. Aguilera of (1) attempted premeditated murder and shooting at an occupied motor vehicle--victim Baldwin (counts 1 & 2), (2) assault with a deadly weapon--victim Mendez (count 3), (3) assault with a deadly weapon--victim Hernandez (count 4), and (4) attempted murder and reckless driving away from a peace officer--victim Bargar (counts 5 & 6). It also found true special allegations that defendant had committed (1) counts 1 and 2 for the benefit of a criminal street gang--five-year sentence enhancements, (2) counts 1 and 2 by discharging a firearm causing injury--25-year-to-life sentence enhancements, and (3) counts 3, 4, and 5 by personally inflicting great bodily injury--three-year sentence enhancements. Thereafter, defendant admitted to the trial court having suffered one prior juvenile conviction for purposes of the Three Strikes law. Upon defendants motion, the trial court struck the prior for purposes of counts 3 through 6 but doubled the base middle term for counts 1 and 2 pursuant to the Three Strikes law. On appeal, defendant contends that (1) the trial court erred by denying his pretrial motion to bifurcate trial of the criminal-street-gang allegations, (2) no substantial evidence supports the findings on the criminal-street-gang allegations and the dependent firearm allegations, (3) no substantial evidence supports the count-5 conviction, (4) the prosecutor engaged in misconduct during argument, and (5) the trial court transgressed his right to jury trial by using his juvenile conviction to double the base terms of counts 1 and 2. Court disagree and affirm the judgment.

In defendants prior appeal, H030246, this court reversed the judgment and remanded the matter to the trial court with directions to conduct an inquiry into defendants reasons for requesting substitute counsel. If defendant fails to establish that he is entitled to substitute counsel, the trial court should reinstate the judgment. If defendant carries his burden, the court should appoint substitute counsel.[1] Following issuance of the remittitur, the court held a Marsden hearing and denied defendants motion to substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118.) Accordingly, the court reinstated the judgment and defendant appeals the [d]enial of Marsden hearing on December 20, 2007.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and defendants letter, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, Court affirm.

Appellant Yervand Termargaryan pled guilty to five of the nine charges against him in return for an agreed-upon sentence of seven years in state prison. Pursuant to the plea agreement, the trial court sentenced appellant to five years on the carjacking conviction, plus consecutive terms of eight months for the felony vandalism, burglary and identity theft convictions, for a total of seven years in state prison.
Appellant appeals from the judgment of conviction, contending that the abstract of judgment must be corrected to show his sentence of seven years. Court agree, and order the correction, as set forth in our disposition. Court affirm the judgment of conviction in all other respects.

Plaintiff and appellant Jamy Kahn appeals following the trial courts order sustaining the objections filed by respondent Barbara Brandt to appellants petition under Probate Code section 21320. Appellant sought to file a proposed petition challenging amendments to a trust on the ground that the trust did not authorize the manner in which the amendments were executed. The trial court ruled that appellants proposed petition would violate the trusts no contest clause. Court reverse. Although certain language in appellants petition sought to invalidate the amendments to the Trust, the petition essentially sought to ascertain the trustors intent regarding their power to amend. Moreover, the Legislature has determined in section 21305, subdivision (b)(1) that pleadings seeking relief pursuant to section 15400 et seq. do not violate no contest clauses as a matter of public policy. Because appellants petition expressly addressed whether the trust could be modified via a power of attorney when the trust instrument did not so provide ( 15401, subd. (c)), the petition did not violate the no contest clause as a matter of public policy.

Petitioners T.C (mother) and I.S. (father) are the parents of six children, ranging from 1 to 12 years in age. Shortly before the youngest child was born, the Los Angeles County Department of Children and Family Services (Department) detained the parents then five children after learning that mother beat her children with a belt as a routine form of discipline, and that mother hit father and threw things at him in the childrens presence. (The sixth child was detained after his birth.) Over the next 12 months, the parents received family reunification services and were permitted to visit with their children. Mothers relationship with the children, however, never developed to a point that permitted her to have unmonitored visits. Father was initially permitted unmonitored visits, although a monitor requirement was imposed when the juvenile court learned that father allowed mother to visit and have lunch with two of the children in violation of a court order. At the 12-month review hearing, the three oldest children testified that they did not wish to have visits with either mother or father. Court review the dependency courts order for abuse of discretion. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) A court abuses its discretion if its decision is whimsical, arbitrary, or capricious. To reverse the dependency court, we must conclude its decision was legally unreasonable and ungrounded in practical experience. Court ought not second-guess or substitute our preferences for the dependency court, which is closer to the facts and parties; we may not reverse merely because an alternative disposition exists that Court find more palatable or less wrenching.