CA Unpub Decisions

In this dependency case, the juvenile court ordered that L.N., a boy born in March 2007, be removed from the custody of his mother, C.M. (Mother). The court placed L.N. with his previously noncustodial father, B.N. (Father), and terminated dependency jurisdiction. In taking this approach, the court relied on Welfare and Institutions Code section 361.2, which provides for placement with a noncustodial parent if the court finds, as it did here, that doing so would not be detrimental to the child.

Tenants Francisco Martin, Marisela Munoz, and their two adult children, Julie Corona and Marisela Renee Munoz (Respondents) occupied a unit in a six-unit building located at 21400 Mission Boulevard in Hayward (the Property). They sued their landlords, Yung K. So and Sung J. So (Appellants) alleging, inter alia, claims for breach of warranty of habitability, negligence, nuisance, violations of the Civil Code, and intentional infliction of emotional distress. Appellants filed an answer and a cross-complaint claiming breach of the rental agreement. Following a bench trial, the court (Hon. Kimberly E. Colwell) found in Respondents’ favor on both the complaint and cross-complaint and awarded them damages. Appellants challenge the trial court’s rulings on admission and exclusion of evidence, as well as the judgment entered for Respondents on the complaint and cross-complaint. We affirm.

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary L. Moorhead Judge. Petition denied.
Law Office of Harold LaFlamme and Harold LaFlamme, Donna P. Chirco, and Tina Stevens for Petitioners.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency.
Sharon Petrosino, Public Defender, Kenneth Norelli and Brian Okamoto for Real Party in Interest A.B.
No appearance for Real Party in Interest R.L.
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Petitioners contend the juvenile court abused its discretion in placing minor children with a great aunt and uncle. We find no error and deny the petition.

A jury convicted Jose Hernandez Gutierrez (Defendant) of one count of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3). The trial court sentenced Defendant to the upper term of eight years in prison.
Defendant challenges the conviction on a single ground: He contends the trial court erred by denying his request to instruct the jury that an actual and reasonable belief the victim was capable of consent to sexual intercourse is a defense to the charge of rape of an intoxicated person. For purposes of analysis, we assume Defendant was entitled to the instruction, a point which the Attorney General does not dispute. The trial court did not err because it instructed the jury on the elements of the offense of rape of an intoxicated person, and the instruction requested by Defendant merely restated one element of the offense as a defense. We therefore affirm.

Anaheim Arena Management (AAM) filed a cross-complaint against its former employee, Angela Wergechik, in her wrongful employment termination action against AAM. The cross-complaint contained claims Wergechik wrongfully gained unauthorized access to AAM’s confidential information during her employment, disclosed AAM’s confidential information to a third party, and failed to timely return company property following the termination of her employment. Wergechik filed a special motion to strike the cross-complaint under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. She argued that certain alleged conduct underlying AAM’s cross-complaint—her disclosure of confidential information to her attorney to evaluate the merits of her wrongful termination lawsuit—constituted protected activity. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.)

This is an appeal from an order denying a motion to compel arbitration. Plaintiff Talega Village Center Community Association (HOA) is a homeowners association, which previously sued the builder of the community for construction defects. The builder moved to compel arbitration, and in a prior opinion, we held the arbitration agreement was not enforceable because there was no evidence the warranty containing the arbitration provision had issued, which was a condition precedent to it becoming effective. In that opinion, however, we were careful to limit our holding to the proposition that the builder had failed to provide an adequate record, and we left open the possibility that the arbitration provision may be enforceable in the future under a better evidentiary showing.

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).

Appellants D.A. and M.O. are the biological father and mother, respectively, of S.O. The juvenile court found the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., did not apply, denied reunification services, and terminated parental rights. Father appeals, contending the matter must be conditionally reversed for the Kings County Human Services Agency (agency) to fully comply with the ICWA by taking affirmative steps to learn more about father’s potential Iroquois Nation heritage. Mother, who claimed no Indian ancestry, joins in the appeal.
We affirm.

Appellant Jeffrey Durgin was convicted of drug offenses and received a prison sentence of 15 years. We hold: (1) seven one-year sentence enhancements under Penal Code section 667.5, subdivision (b), were imposed erroneously in light of Durgin’s successful petitions under the Safe Neighborhoods and Schools Act, known as Proposition 47; (2) a three-year enhancement under Health and Safety Code section 11370.2 was imposed erroneously in light of the legislation known as Senate Bill 180; and (3) penalty assessments were correctly levied upon fees imposed under Health and Safety Code sections 11372.5 and 11372.7, except that Durgin was undercharged by $5 due to an arithmetical error. We strike the erroneously-imposed enhancements, correct the arithmetical error, and remand for resentencing. Also, as it appears no abstract of judgment was ever filed in this case, we remind the trial court to file one on remand.

Defendant Alfred Carl Feliz was charged with attempted murder; kidnapping; assault with a semiautomatic firear; gang participation; and possession of a firearm by a felon. The information further alleged the attempted murder was willful, deliberate, and premeditated, perpetrated during the commission of a kidnapping, and/or perpetrated by means of discharging a firearm from a motor vehicle at another person outside of the vehicle (§ 189); in connection with counts 1 and 2, defendant discharged a firearm and proximately caused great bodily injury; in connection with counts 3, 5, and 8, he used a firearm and inflicted great bodily injury (§ 12022.7); he committed the offenses underlying counts 1 through 3 and 8 for the benefit of, at the direction of, or in association with a criminal street gang; and, as to all counts, he was previously convicted of a qualifying “strike” offense, was previously convicted of a serious felony, and previously served three separate prison terms.

Christopher Brandon Lee admitted killing Erin C., with whom he was having an extramarital affair, but claimed that he killed her in a fit of rage after she admitted molesting his young daughter. A jury convicted him of first degree murder and found true the allegation that he killed Erin by means of lying in wait. The trial court sentenced him to life in prison without parole.
Lee appeals, contending the trial court erred in instructing the jury with CALCRIM No. 522 (provocation), as written, in combination with CALCRIM No. 570 (voluntary manslaughter based on sudden quarrel or heat of passion) because CALCRIM No. 522 is ambiguous and misleading when read in the context of the definition of provocation given in CALCRIM No. 570. He claims that had the jury been more fully instructed it could have found that he did not premeditate and deliberate the killing and convicted him of second degree murder, rather than first degree murder. We disagree and affirm the judgment.

In the middle of the night, a group of at least three assailants charged into Joey F.'s home and stabbed him repeatedly in the back. Based on that incident, a jury convicted defendants Elias Guevara and James Michael Estrada of first degree burglary with a person present. (Pen. Code, §§ 459, 667.5, subd. (c)(21).) The jury also convicted Estrada of Joey's attempted murder. (§§ 664, 187, subd. (a).)
The two defendants raise distinct sets of issues on appeal. Guevara first contends that his section 1118.1 motion for judgment of acquittal should have been granted because the prosecution's case in chief failed to establish his role in the burglary. His argument, however, misapprehends our standard of review for such a motion. It is not enough that the circumstances might reasonably be reconciled with a contrary finding. Rather, we must be convinced that the ultimate conviction is unsupported by substantial evidence. We are not so persuaded here.

A jury convicted Kevin Richard Shepler of three counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a); counts 1-3) and one count of continuous sexual abuse of a child (§ 288.5, subd. (a); count 8). The court sentenced Shepler to a total term of 28 years in state prison.
Shepler contends: (1) the court erred in denying a mistrial when two jurors inadvertently read redacted portions of an interview transcript; (2) the court erred in allowing the minor victim to testify with a support dog present; and (3) the court erred in excluding a friend of Shepler from the courtroom during the minor victim's testimony. We disagree with each of these contentions and, therefore, affirm the judgment.

Defendant Woody Vainqueur appeals the trial court’s restitution order following his conviction for assault with a deadly weapon. Appointed counsel on appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.