CA Unpub Decisions

Defendant Gary Lynn Kilbourn robbed a small bank. There were only three tellers there: Jessica Shields, Courtney Gibbs, and Chanee Pangan. The jury convicted Kilbourn of robbing Shields and Gibbs, and of attempting to rob Pangan, who unlocked her cash drawer and was preparing to give Kilbourne her money when Kilbourn took the cash from the other two tellers and fled. Kilbourn thus suffered three convictions: two for second degree robbery (Pen. Code, § 211) and one for attempted second degree robbery. (Id., §§ 211, 664.) (All statutory references are to the Penal Code.) Kilbourn does not dispute his two robbery convictions. He challenges only the attempted robbery conviction. He contends we should reverse for insufficient evidence. We affirm.

David Osuna Mosqueda appeals his conviction by jury of unlawful driving or taking a vehicle (count 1; Veh. Code,
§ 10851, subd. (a)), possession of a controlled substance (count 2; Health & Saf. Code, § 11350, subd. (a)), evading a police officer (count 3; Veh. Code, § 2800.1, subd. (a)), and driving while under the influence of a drug (count 4; Veh. Code, § 23152, subd. (e)). In a bifurcated proceeding, appellant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and six prior prison term enhancements
(§ 667.5, subd. (b)). The trial court sentenced appellant to three years on count 1 for unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), doubled the sentence based on the prior strike, and imposed a one-year prior prison term enhancement for an aggregate sentence of seven years state prison. On counts 2 through 4, the court imposed one-year concurrent terms.

Petitioners Louise Hansen and Tracy Hansen, individually and doing business as Cozy Cottage Rentals (hereinafter collectively referred to as Hansen) filed a petition for a peremptory writ of mandate (and a related request to stay the trial court proceedings), seeking to set aside an order granting a supplemental motion to disqualify Honorable Clayton L. Brennan. We agree with Hansen that the respondent superior court erred in granting the supplemental motion for disqualification and that the disqualification order should be vacated. Accordingly, we shall issue a peremptory writ of mandate, and dismiss as moot the request for a stay of the trial court proceedings.

Defendant Yefry Samuel Mata-Diaz pleaded no contest to first degree burglary (Pen. Code, § 459). He also admitted that he had a prior strike conviction (§§ 667.5, subd. (c), 1170.12, subd. (c)(1)) and had violated probation in case No. SS151804A. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d. 436 (Wende) on behalf of defendant. Defendant was notified of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. We affirm the judgment.

Ryan Shawn Joshua appeals from a judgment after a jury found him guilty of assault with a deadly weapon and found true a great bodily injury allegation. Joshua argues the trial court improperly excluded a statement the victim allegedly made to hospital staff that challenged the credibility of the victim’s identification of him. We disagree and affirm the judgment.

This is an eye-wateringly complex title insurance coverage case arising out of a complicated triangular loan transaction between a big lender, a small lender, and a now defunct California winery. The big lender refinanced a prominent Paso Robles winery. The small lender already had a lien on some of that winery’s property for about $6.5 million, but agreed to subordinate its lien to the big lender’s lien of $4 million – but only the $4 million. Unfortunately, the $4 million lien was part of an overall $21 million loan package and the small lender never agreed to subordinate its loan to the $17 million additionally lent by the big lender (in the form of two other loans, one for $11 million and one for $6 million). The big lender’s title insurer issued three separate title policies insuring all three of the big lender’s liens (for $4 million, $11 million, and $6 million) and the title policy for the $4 million lien insured the priority of the $4 million lien over the small

The court adjudged appellant C.H. a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging appellant with carrying a concealed dirk or dagger (Pen. Code, § 21310). On appeal, appellant contends: (1) the court erred when it denied his motion to suppress; (2) the evidence is insufficient to sustain the court’s true finding that he carried a concealed dirk or dagger; (3) the court erred by its failure to make an express declaration that appellant’s offense was a felony; (4) the court erred by its failure to state reasons for not declaring his offense to be a misdemeanor; (5) the court abused its discretion when it denied appellant’s request to declare his offense a misdemeanor; and (6) one of appellant’s conditions of probation is unreasonable and unconstitutionally vague and overbroad. We affirm.

Appellant Donald Wayne Lambert appeals his convictions on one count of negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a) ) and one count of child endangerment (§ 273a, subd. (a)). Appellant contends the trial court erred with respect to the firearm charge by improperly answering a question posed by the jury during deliberations. He separately argues the court erred on the child endangerment charge by failing to specifically instruct the jury on self-defense. For the reasons set forth below, we affirm.

Appellant Brian Christopher Esqueda appeals following his convictions on one count each of corporal injury to a spouse (Penal Code, § 273.5, subd. (a) [count 1]), sexual penetration by force (§ 289, subd. (a)(1)(A) [count 2]), making criminal threats (§ 422 [count 3]), dissuading a witness (§ 136.1, subd. (b)(1) [count 4]), and false imprisonment (§ 236 [count 5]). Specifically, appellant contests his conviction on count 2 claiming his due process rights were violated by the trial court’s refusal to instruct the jury on the allegedly lesser included offense of sexual battery. Separately, appellant appeals the terms of his sentence, asserting his due process rights were violated when the trial court failed to stay his sentences in counts 3 and 5 pursuant to section 654. For the reasons set forth below, we affirm.

Appellant/defendant Dylan Nicholas McNabb was charged with first degree premeditated murder for killing his grandmother after he fired a single rifle shot into her head. Defendant was 19 years old. Defendant’s grandmother had lived with defendant and his father, and tried to help defendant stop using designer drugs known as “bath salts.”
Defendant was arrested shortly after the homicide and told the police during a lengthy postarrest interview that he used bath salts that day and intentionally killed his grandmother because he heard voices telling him to do so. By the time of trial, defendant changed his story and claimed he lied about everything he said in his postarrest interview. Defendant testified at trial that he had not used bath salts before the homicide, he never heard voices, and he made up that story because he thought his best chance was to appear crazy during his postarrest interview. Defendant testified that what really happened was that he had just been exami

M.O. and E.O. were removed from their parents’ custody when allegations that their father, Marcos O., had sexually abused a step-daughter from a relationship with another woman years earlier emerged. Father also had numerous convictions for alcohol related offenses. The San Bernardino County Children and Family Services Agency (CFS) filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (d). At a contested jurisdictional hearing, the court made true findings on all allegations, removed the children from father’s (and mother’s) custody, ordered reunification services to mother, but denied services to father pursuant to section 361.5, subdivision (b)(6). Father appealed.

Mother lost custody of three children in September 2015 due to neglect and leaving the children without provision for their care. The children were placed with a maternal aunt, while Mother struggled with drug abuse through the first part of the dependency. Mother did not appear until the twelve-month review hearing, by which point she began to address the problems that led to the dependency. At the 18-month review hearing, after she had completed all the requirements of her reunification plan but lacked housing, her services were terminated and a hearing pursuant to Welfare and Institutions Code, section 366.26 was ordered, with a goal of establishing a guardianship. Mother’s counsel waived the need for the court to advise her of the need to file a writ to seek review of that order. A subsequent petition under section 388 was denied and the court ultimately ordered a guardianship for the children as the permanent plan. Mother appealed.

Defendant is serving a determinate term of 12 years, to be followed by an indeterminate term of 15 years to life. Defendant was convicted of four crimes after using a weekend ski trip to sexually abuse the six-year-old daughter of a couple with whom defendant and his wife had shared a 20-year friendship.

In a second amended complaint, plaintiffs and appellants Gabriel Ramirez (Gabriel) and Alicia Ramirez (Alicia) sued defendants and respondents Mortgage Electronic Registration Systems, Inc. (MERS), Clear Recon Corp. (Clear), and Select Portfolio Servicing Inc. (Select) for (1) breach of the implied covenant of good faith and fair dealing, (2) intentional misrepresentation; and (3) cancellation of a void instrument. MERS and Select (collectively, defendants) demurred to the second amended complaint. The trial court sustained the demurrer without leave to amend. Gabriel and Alicia (collectively, Homeowners) contend the trial court erred. We affirm the judgment.