CA Unpub Decisions

A jury convicted appellant, Robbie Dell Jackson, of elder adult abuse (Pen. Code, § 368, subd. (b)(1))[1] (count 1) and attempting to dissuade a victim (§ 136.1, subd. (a)(2)) (count 2). The jury found that Jackson used a deadly weapon within the meaning of section 12022, subdivision (b)(1) in committing count 1.
Jackson admitted having two prior strike convictions. (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Jackson to an indeterminate term of 25 years to life on count 1 (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) plus a consecutive determinate one-year term for the weapon enhancement (§ 12022, subd. (b)(1)). On count 2, the trial court struck Jackson’s prior strike convictions and imposed a consecutive two-year determinate term. In addition, Jackson was ordered to pay $10,000 in restitution (§§ 1202.4, subd. (b)).
Jackson appeals, contending (1) the trial court lessened the prosecution’s burden of proof and violated his Sixth and Fourteenth Amendment rights by instructing the jury on CALCRIM 372 (flight and consciousness of guilt); (2) the prosecutor committed misconduct in his closing argument; (3) the trial court erred in imposing restitution; and (4) defense counsel was ineffective for not objecting to the prosecutor’s misconduct and the amount of restitution. We affirm.

Seventeen-year-old Miguel Calderon retaliated against rival gang members by shooting numerous shots at the house where a confrontation had occurred between the rival gang members and him. One of the bullets struck a small child causing serious, but not fatal, injuries. A jury convicted Calderon of six counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a))[1] and one count of shooting at an inhabited dwelling (§ 246). In addition, the jury found true numerous enhancements, including personal use of a firearm resulting in great bodily injury within the meaning of section 12022.53, subdivisions (b) through (d). Calderon was sentenced to 120 years to life in prison.
Calderon contends his conviction must be reversed because the trial court erroneously instructed the jury and the prosecutor committed misconduct. We reject these arguments.
In addition, Calderon asserts his sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. Recent opinions by the United States Supreme Court (Graham v. Florida (2010) 560 U.S. 48 (Graham)) and the California Supreme Court (People v. Caballero (2012) 55 Cal.4th 262 (Caballero)) confirm that the sentence imposed violates the Eighth Amendment. Accordingly, we will reverse the judgment and remand the matter to the trial court for resentencing. At that time the trial court can correct an error in the custody credits to which Calderon is entitled.

Following a contested adjudication hearing, the juvenile court made true findings on allegations of threatening a victim by force (Pen. Code,[1] § 136.1, subd. (c)(1)); grand theft from the person (§ 487, subd. (c)); battery (§ 242); and possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)). The court determined the maximum confinement potential was eight years.
Francisco P. (the Minor) was placed on probation, subject to a commitment to the Camp Barrett program for a period not to exceed 365 days and certain other conditions.
The Minor appeals contending the juvenile court incorrectly calculated his pre-disposition custody credits and that the court erred in declining to strike one of the probation conditions. The respondent properly concedes the custody credits were incorrectly calculated. We will order the juvenile court to correct the disposition order to award the Minor 57 days of predisposition custody credits. Otherwise we will affirm the juvenile court's decision.

Community Assisting Recovery, Inc. (CARe)[1] and George Kehrer appeal from the trial court's order denying their special motion to strike on the ground that this action is a strategic lawsuit against public participation under Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute, hereafter section 425.16). As we will explain, we conclude that the trial court erred in denying the special motion to strike, and we therefore reverse.

This action involves the interpretation of language in paragraph 7.4.1 of a premarital agreement between appellant Beatriz Laurentine Lind (Laura) and respondent William Robert Bradley (Robert)[1] that detailed the parties' rights regarding certain real property owned by Robert.
The premarital agreement also provided that Laura would receive $3 million from Robert shortly after the marriage. Approximately six months after the parties married it was decided that a house would not be built on the property described in paragraph 7.4.1.
Robert filed an action for martial dissolution in December 2003.
Thereafter, Robert brought a motion for summary adjudication seeking to have the property located on Camino Sierra del Sur in Rancho Santa Fe (the Rancho Santa Fe property) declared to not be the joint residence and for a finding that Laura was not entitled to any money or damages from the sale of property located on Tierra Del Sur in San Diego (the Tierra Del Sur property). The motion for summary adjudication was denied and the case was thereafter set for trial.
Prior to the commencement of trial, both parties filed motions in limine regarding the admissibility of parol evidence to interpret paragraph 7.4.1. Robert sought to prohibit the use of parol evidence in construing that paragraph. Laura's motion in limine argued that (1) the disputed provision of the premarital agreement was unclear and ambiguous, and (2) therefore parol evidence should be admitted.

A jury found defendant Rudolph Delsie guilty of first degree murder, during the commission of which he personally used a deadly weapon. The trial court then sustained recidivist allegations. It sentenced him to state prison.
To reorder defendant’s arguments on appeal, he contends the trial court erred in denying a motion for mistrial based on stricken testimony about an excluded subject area; there is insufficient evidence of his identity as the killer of the victim; there is insufficient evidence to support an instruction on aiding and abetting;[1] and the prosecutor committed misconduct in asserting the truth of hearsay evidence. We reject defendant’s various claims of error and shall affirm the judgment.

A jury found defendant Charles Wren guilty of inflicting corporal injury on his girlfriend, S., and vandalizing her house following an incident where he severely beat S. and then “tore up [her] house.”
On appeal from the resulting conviction, defendant contends the trial court erred in admitting a prior act of domestic violence he perpetrated against his ex-wife and in calculating his presentence custody credits. Disagreeing, we affirm.

After David Kenner was sued for breach of contract by Time Payment Corporation, he cross-complained for breach of contract, fraud, and common counts against Kelvin Powell and others. Following an unreported court trial, the court entered judgment in Kenner’s favor.
Cross-defendant Powell, appearing in pro se as he did in the trial court, appeals on the judgment roll. He contends the trial court erroneously admitted some evidence, refused to admit other evidence, misinterpreted the parties’ contract, and erred in computing the amount of damages. On this record, we find no error, and shall affirm the judgment.

A jury convicted defendant Barry Allen Turnage of maliciously placing a false or facsimile bomb in 2006 with the intent to cause others to fear for their safety (Pen. Code, § 148.1, subd. (d)),[1] found he was legally sane at the time of the commission of the offense, and found he had two prior convictions that came within the meaning of section 667, subdivision (d). Based on the evidence it heard at trial regarding the present offense, the trial court found that defendant violated his probation in a 2004 drug case, in which there was a suspended imposition of sentence. The court sentenced defendant to state prison for the upper term on the 2004 offense, with a consecutive indeterminate prison term of 25 years to life for the present offense. (§ 667, subd. (e)(2)(A)(ii).)

In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), our Supreme Court articulated what an unwed father must do to elevate himself to the status of a "presumed father" and thereby preclude termination of his parental rights.
Three years after Kelsey S. was decided, the court made clear that an unwed father's burden arises immediately upon learning of the pregnancy and requires "a full commitment to his parental responsibilities - emotional, financial, and otherwise . . . ." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055 (Michael H.).) Here we conclude there is substantial evidence that the unwed father did not, with alacrity, make such a full commitment.
A.M., the unwed father of infant Baby Boy R. (now Ian), appeals the trial court's finding that he failed to meet his burden of proving he is a presumed father under Kelsey S. We conclude that substantial evidence supports the court's finding. Accordingly, we affirm the judgment terminating appellant's parental rights to Ian and freeing the child for adoption by respondents R.G. and C.G. (Fam. Code, § 7662 et seq.)[1]

John M., Sr. (father), appeals the dependency court’s jurisdictional and dispositional order denying him custody of his son John M. (John). Father, who was incarcerated at the time of John’s detention and who was the subject of an amended petition, argues that Welfare & Institutions Code section 361.2[1] provides that a noncustodial parent is entitled to placement consideration without regard to whether such parent is offending or nonoffending. Conceding that, in dependency court, he did not raise the possibility of John’s placement with him, father argues nonetheless there was no forfeit. Father also argues that insufficient evidence supports the jurisdictional findings against him. We affirm.

Adrian U. Timbol appeals from a judgment entered after the trial court sustained demurrers to the second amended complaint without leave to amend on the ground that Timbol lacked standing to pursue this lawsuit on behalf of Milagros T. Manapat. The second amended complaint seeks to set aside a trustee’s sale of property that Manapat’s late husband Luis O. Manapat (decedent) owned, alleging the decedent’s signatures on a promissory note and a deed of trust were forged because the decedent died three years before he purportedly signed these documents. Manapat apparently authorized Timbol to prosecute this action on her behalf. On Timbol’s third attempt to plead standing, he alleged he was the trustee pursuant to a declaration of trust in which Manapat conveyed the property to him. We affirm, concluding the second amended complaint does not sufficiently allege facts to state a cause of action, and even if it did, Timbol, lacks standing to pursue this action.

Appellant Anthony Ivan Bobadilla contends the evidence was insufficient to support the jury’s conclusion that his attempted murder of his former girlfriend was willful, deliberate and premeditated. We affirm.

A jury convicted defendant Eric Miller of first degree burglary in violation of Penal Code section 459.[1] The jury also found that the offense was committed while another person was present in the residence as described in section 667.5, subdivision (c). The trial court found that defendant had suffered three prior strike convictions pursuant to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), but struck two of the prior strike convictions. The court also found true the allegation that defendant had suffered two prior convictions pursuant to section 667, subdivision (a)(1). Defendant was sentenced to 18 years in state prison, consisting of the midterm of four years doubled pursuant to the “Three Strikes” law, plus 10 years for the two priors pursuant to section 667, subdivision (a)(1).
On appeal, defendant contends the trial court erred by summarily denying his request to represent himself. He argues the trial court was required by the Sixth Amendment to the United States Constitution and Faretta v. California (1975) 422 U.S. 806 (Faretta) to grant his request, made 10 days before voir dire began. Alternatively, he contends the trial court abused its discretion by failing to weigh all relevant factors before deciding whether to grant his request for self-representation. Because we conclude the Faretta request was untimely and the trial court did not abuse its discretion in denying the request, we affirm the judgment.