CA Unpub Decisions

Abel Rosas[1] was convicted by a jury on two counts of attempted willful, deliberate and premeditated murder with true findings on the special allegations the crimes had been committed for the benefit of a criminal street gang and a principal had used and discharged a firearm in committing the offenses proximately causing great bodily injury. On appeal Rosas argues his constitutional right to the effective assistance of counsel was violated by his lawyer’s failure to move to suppress as involuntary his admissions to police officers following his arrest, to properly investigate the case and to present at trial evidence favorable to the defense. He also contends the trial court erred in denying a motion for new trial based on newly discovered evidence and an error in the verdict forms requires a retrial. We affirm.

In an information filed by the Los Angeles District Attorney, defendant and appellant Johnnie Bernard Crawford was charged with second degree commercial burglary (count I; Pen. Code, § 459),[1] and vandalism over $400 (count II; § 594, subd. (a)). As to both counts, it was alleged that appellant’s sentence could be enhanced pursuant to section 667.5, subdivision (b). Appellant pleaded not guilty and denied the allegations.
Trial was by jury. The jury found appellant guilty on both counts as charged. He admitted five prior conviction allegations.
Probation was denied. Appellant was sentenced to state prison for five years. He received presentence custody credit for 424 days of actual custody, plus 424 days of conduct credit, for a total credit of 848 days. The trial court ordered him to pay a $800 restitution fine pursuant to section 1202.4, subdivision (b), $80 in court security fees pursuant to section 1465.8, and $60 in criminal conviction assessments pursuant to Government Code section 70373. The trial court awarded $1,752.95 in direct restitution to the victim. It imposed and stayed a $800 parole revocation fine pursuant to section 1202.45.
Appellant timely filed a notice of appeal. On appeal, appellant argues: (1) Insufficient evidence supports appellant’s conviction because (a) the courtyard does not constitute a building for purposes of the burglary statute (§ 459), and (b) even if the courtyard is a building, there was insufficient evidence of entry for purposes of burglary; (2) The trial court abused its discretion and denied appellant his right to due process and a fair trial by admitting, under Evidence Code section 1101, subdivision (b), testimony regarding two prior burglaries to prove intent; and (3) The trial court erred in failing to stay the sentence on appellant’s vandalism conviction when he had been sentenced for commercial burglary.
We agree with the parties that appellant’s punishment on count II (vandalism) should have been stayed pursuant to section 654 because it was part of the same course of conduct and had the same objective as the burglary in count I. Therefore, we correct the sentence. Upon remand, we direct the trial court to modify the abstract of judgment to stay the sentence as to count II. In all other respects, the judgment is affirmed.

Plaintiff Farzin Nassir appeals the grant of summary judgment in favor of his former neighbor, defendant Daniela Lunkewitz. We conclude that summary judgment was improperly granted, and thus we reverse.

Glen Arthur Strickland, a construction worker for 45 years, died in 2007 from peritoneal mesothelioma. Union Carbide, the manufacturer of Calidria, a chrysotile asbestos product used in certain drywall joint compounds, appeals from the judgment after a jury verdict in favor of Strickland’s widow, Linda Strickland, and their two children (the Strickland family) in this wrongful death action. Union Carbide contends the Strickland family failed to prove exposure to Calidria was a substantial factor contributing to Strickland’s risk of developing peritoneal mesothelioma. We affirm.

Jacob S. was placed on nonwardship probation for possessing a knife on school grounds. (Pen. Code, § 626.10, subd. (a)(1); Welf. & Inst. Code, § 725, subd. (a).) He contends the court should have suppressed the knife because it was discovered during an unlawful detention. (Welf. & Inst. Code, § 700.1.) Alternatively, he maintains he did not possess the knife on school grounds because his possession occurred in a car parked on a road adjacent to school property. We conclude that Jacob was lawfully detained and that his possession of the knife occurred on school grounds because “school” is statutorily defined to include “any public right-of-way situated immediately adjacent to school property.” (Pen. Code, § 626, subd. (a)(4).) We shall affirm the jurisdictional and dispositional orders.

The two children of respondent K.B. (Mother) and her boyfriend (Father) were detained by appellant Lake County Department of Social Services (Agency) after doctors found the younger child, a baby, to have several bone fractures. At a contested jurisdictional hearing, a physician testified that the baby’s injuries had been inflicted by a series of violent acts. Although the parents were the baby’s only caretakers, both of them professed bafflement as to the source of the injuries. After finding the jurisdictional allegations true, the juvenile court bypassed reunification services for the parents under Welfare and Institutions Code[1] section 361.5, subdivision (b). A few months later, Mother successfully sought modification of the order denying services on evidence she had obtained a restraining order against Father and attended parenting classes. Because the juvenile court applied the wrong legal standard and failed to make necessary findings in granting reunification services to Mother, we reverse.

Mark Brailey (Brailey) appeals from civil harassment restraining orders issued against him in favor of his landlord, respondent Ginger Wong (Wong). Brailey contends the court erred because Brailey was the one who was harassed, Wong used the restraining order procedure to evict him from his home in retaliation for his reports to the police about her children’s wild parties, and neither the restraining order nor the subsequent one-year injunction were supported by substantial evidence. We will affirm the orders.

Travis Casebolt (appellant) appeals from an order committing him to the State Department of Mental Health (DMH), now the State Department of State Hospitals, for an indeterminate period as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He contends the judgment must be reversed because (1) the evidence was insufficient to support a current diagnosis of sexual sadism; (2) the court should have given a sua sponte instruction quantifying the risk of reoffense necessary to support a commitment; (3) the trial court erred by failing to instruct the jury sua sponte that an SVP commitment is for an indefinite time period; (4) the protocol governing SVP evaluations is invalid; (5) commitment without the prospect of effective treatment violates his right to due process; (6) the court should have instructed the jury sua sponte that it must unanimously agree on the disorder that provides a basis for commitment; and (7) the SVPA is an unconstitutional ex post facto law, improperly shifts the burden of proof, and violates appellant’s right to equal protection. We reject appellant’s contentions and affirm.

Appellant Rodney J. Smith represented himself at trial and was convicted by a jury of one count of sexual penetration by a foreign object (Pen. Code, § 289, former subd. (a)(1), current subd. (a)(1)(A)),[1] three counts of forcible oral copulation (§ 288a, former subd. (c)(2), current subd. (c)(2)(A)), and one count of forcible rape (§ 261, subd. (a)(2)). Smith appeals, contending that the trial court abused its discretion, and violated his federal constitutional rights, by ending his direct examination after he repeatedly refused to confine his questions to relevant matters. He also suggests that the trial court impermissibly lightened the prosecution’s burden of proof when it instructed the jury on consent. We affirm.

This is an appeal from judgment in a lawsuit brought by appellant Faye Beyeler against her three adult children, respondents Sarah, Jonathan and Rochelle Beyeler (collectively, children or respondents).[1] In this lawsuit, Faye alleged her children were unjustly enriched by their receipt of a total of $750,000 in proceeds from life insurance policies paid out upon the death of their father and Faye’s former husband, Hans Beyeler. For reasons discussed below, we affirm.

A jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a)), and found true that he personally discharged a firearm that was the proximate cause of the death of the victim within the meaning of Penal Code section 12022.53, subdivision (d). Defendant, through his appellate counsel, maintains that the trial court abused its discretion and violated his constitutional right to a fair trial when it excluded evidence related to the victim’s violent character. His counsel on appeal also challenges the lower court’s ruling that qualified a detective as an expert and permitted him to testify about the expected location of shell casings if the gunman was in a particular position.

Appellant Peter Reiter was a sole proprietor of a residential landscaping company. In the early 2000’s, he began to do work for Eve Kragneness, an 80-year-old widow who lived with her blind son, Jim Krageness. A personal relationship developed between the appellant and the Kragnesesses and the scope of the work he did for the family increased. This work continued until Eve’s death in 2006. Often Eve paid appellant much more than what he would have otherwise charged for his work. The amount of the checks written to appellant increased throughout 2004 and reached their highest point in May 2005. In total, Reiter cashed checks totaling $544,382. At some point, a bank official, concerned about the frequency and amount of checks to appellant, reported the payments to the authorities. This led to an investigation by Adult Protective Services into the transactions and relationship between the appellant and the Kragnesesses. The investigating officer concluded that the payments were not coerced and were being made voluntarily. After his mother’s death, Jim became the sole administrator of his mother’s estate. Three years after her death, Jim died unexpectedly.
Respondent Sally Cobaugh, Jim’s cousin and the executor of his estate, filed this action for financial abuse of an elder adult and of a dependent adult pursuant to Welfare and Institutions Code section 15610.30. At trial, she argued that the size and frequency of the checks, by themselves, evidenced some sort of mental failing of both Kragenesses and that appellant must have been aware of their feelings of dependence on him; that appellant failed to make any inquiries as to whether the large amounts of money coming to him were financially destructive to the Kragnesesses; and that anything other than refusing such large checks constituted abuse of both Eve and Jim. Respondent prevailed at trial and the trial court awarded compensatory damages to the estate in the amount of $564,576, punitive damages in the amount of $200,000, attorney fees in the amount of $432,777.50 and costs in the amount of $22,315.04. This appeal ensued.

After killing a visiting Korean businessman in 1993 by stabbing him approximately 40 times in his hotel room, petitioner Hui Kyung Kang pleaded guilty to second degree murder and was sentenced to 16 years to life in the state prison. Following a parole hearing held on January 6, 2011, the Board of Parole Hearings (the Board) found that Kang was unsuitable for parole because she would pose an unreasonable risk of danger if released from prison. Kang challenged the Board’s decision by filing a petition for a writ of habeas corpus in the superior court. The superior court granted the habeas corpus petition, vacated the Board’s decision, and remanded the matter to the Board with directions to provide Kang with “a new hearing comporting with due process.”
On appeal, Acting Warden Deborah Johnson (the Warden) contends that the superior court erred because some evidence supports the Board’s finding that Kang would pose an unreasonable risk of danger if released from prison. For the reasons stated below, we conclude that under the deferential standard of review established by the California Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis I) and clarified in In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II), some evidence supports the Board’s decision. Therefore, we will reverse the superior court’s order and remand the matter to the superior court with directions to issue a new order denying the petition for writ of habeas corpus.

Defendant Marc Alan Silberman pleaded guilty to felony sexual penetration by foreign object with a person under 18 years of age, and misdemeanor annoying or molesting a child. The People contend the trial court erroneously failed to impose mandatory lifetime sex offender registration required under Penal Code section 290.[1] We agree and reverse the judgment.