CA Unpub Decisions

Following a bench trial, the court found defendant guilty of lewd act on a child, attempted forcible rape, nonforcible oral copulation, and nonforcible sexual penetration, all involving a minor under the age of 14. Defendant is focused solely on the attempted forcible rape conviction, asserting there was insufficient evidence he had the specific intent to use force to accomplish an act of sexual intercourse. We disagree and affirm.

In 2014 Gurbaksh Chahal was placed on probation for misdemeanor domestic violence and battery involving victim Juliet K. In 2016 the court revoked Chahal’s probation after another domestic violence incident with a different victim, S.B. Chahal appeals the revocation order, and contends the court erred when it (1) admitted a hearsay statement from S.B. pursuant to Evidence Code section 1370; (2) admitted previously suppressed video surveillance footage depicting the violent incident with Juliet K.; (3) excluded defense evidence offered to challenge S.B.’s credibility; and (4) ruled on the admissibility of conditionally admitted exhibits after, rather than before, closing arguments. None of Chahal’s arguments have merit, so we affirm.

Plaintiff Eugene Spencer was one of several individuals who, along with two deputy sheriffs, were at a foreclosed residential property to conduct an eviction and “trash out.” As the locksmith was in the process of unlocking the front door, the spouse of the former owner shot through the door. Two bullets struck Spencer. He subsequently
sued 13 defendants, including the bank that purchased the foreclosed property and the realty company the bank hired to periodically check on and ultimately sell the property.
The trial court sustained demurrers by the bank and realty company without leave to amend, ruling these defendants owed no duty of care to Spencer to warn of or protect against the potentially murderous criminal conduct. We reverse as to the bank, concluding that the additional allegations Spencer has proffered on appeal, both in his briefing and at oral argument, suffice to survive a demurrer. We affirm, however, as to the realty company.

Defendant Derek Gould appeals from a judgment of conviction of two counts of misdemeanor receiving stolen property and three felony firearm offenses, entered after a jury trial. He contends he should have been convicted of only one count of receiving stolen property and that the prosecutor committed prejudicial misconduct in closing argument. We agree that defendant should have been convicted of only one count of receiving stolen property and otherwise affirm the judgment.

Salter was previously convicted after a jury trial of first degree murder, and we recently affirmed his conviction. The facts of the underlying crime are recounted in our prior opinion. (See People v. Salter (Apr. 25, 2018), No. A139766.)
After the jury returned its verdict, the probation department recommended a restitution award made payable to the California Victim Compensation Board (Board) in the amount of $7,479.15, to reimburse the Restitution Fund for funeral and burial expenses the Board had paid the victim’s family. At the sentencing hearing on August 15, 2013, Salter requested a hearing on restitution and the trial judge (the Hon. Morris Jacobson) put the matter over.

Defendant Jessie Antonio Ramirez was convicted of second degree robbery and simple assault. On appeal, he contends that the trial court erred by denying his pretrial motion under Penal Code section 995 on the ground that there was insufficient evidence to hold him to answer to gang sentencing enhancement allegations. (All further statutory references are to the Penal Code.) Defendant argues that he suffered prejudice when the jury heard evidence of his membership in a criminal street gang.
We affirm. There was ample evidence presented at the preliminary hearing supporting the trial court’s decision to hold defendant to answer on the gang sentencing enhancement allegations. The jury’s ultimate not true findings on those allegations does not prove the allegations were improperly given to the jury to decide.

In case No. VCF274937 (4937), appellant Cesar Pimentel pled no contest to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)/count 2) and admitted three prior prison term enhancements (§ 667.5, subd. (b)). In case No. VCF327067B (7067), Pimentel pled guilty to second degree burglary (§ 459/count 1), grand theft (§ 487, subd. (a)/count 2), and admitted three prior prison term enhancements.
On appeal, Pimentel contends the court violated section 654’s prohibition against multiple punishment when it imposed a concurrent term on his grand theft conviction in case No. 7067. We affirm.

Defendant Joseph Haskell Maine was charged with the second-degree murders of Vanessa Carrillo and her unborn child (Pen. Code, § 187, subd. (a) [counts 1 & 2]); gross vehicular manslaughter of Vanessa while intoxicated (§ 191.5, subd. (a) [count 3]); felony driving under the influence (DUI) and causing bodily injury to Vanessa (Veh. Code, § 23153, subd. (a) [count 4]); felony driving with a blood alcohol concentration (BAC) of or in excess of 0.08 percent and causing bodily injury to Vanessa (id., subd. (b) [count 5]); and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a) [count 6]).

A custodial parent filed a motion to enforce child support arrearages from 2003 through 2012. The trial court denied the motion, stating there was neither legal nor factual support for the requested relief. Among other things, the court stated the custodial parent failed to (1) identify the specific underlying orders giving rise to the alleged arrears, and (2) provide documentation of amounts actually paid and the specific amounts of arrears claimed.
A threshold legal question presented is the allocation of the burden of proof. We conclude the custodial parent had the burden of proving which child support orders were operative during the period of claimed arrearages, the amount of fixed child support payments received, the amount of “Ostler-Smith” child support payments received, and when the payments were received.

In this matter, we have reviewed only the petition and judicially noticed records detailed below. Although real parties in interest were invited to file a response to the petition, no response was filed. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioner. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

Defendants and appellants D.J. (mother) and T.W. (father) challenge the juvenile court’s order terminating their parental rights with respect to their biological daughter, Z.J. (child). Mother contends that the juvenile court erred by failing to apply the beneficial parental relationship exception to termination of parental rights of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). Father joins in mother’s arguments.
We find no error, and affirm the juvenile court’s judgment.

A jury convicted defendant and appellant, Jody Wayne Noel, of carjacking (Pen. Code, § 215, subd. (a)), robbery (§ 211), possessing a firearm in a public building (§ 171b, subd. (a)), resisting an executive officer (§ 69, subd. (a)), and four counts of being a violent offender in possession of a firearm (§ 29900, subd. (a)). The jury also found defendant personally used a firearm in the commission of the robbery. (§ 12022.53, subd. (b).) For these offenses and a number of status enhancements that defendant admitted (§§ 667, subds. (a), (c), (e)(1), 667.5, subd. (b), 1170.12, subd. (c)(1), 12022.1, subd. (b)), the court sentenced him to a total of 32 years plus 50 years to life in prison.
Defendant contends there was insufficient evidence that he knew of or controlled two of the firearms the jury convicted him of possessing. He also contends the court erred in failing to instruct the jury sua sponte on constructive possession of the firearms.

A jury convicted Thomas Francis Burke IV of voluntary manslaughter (Pen. Code, § 192, subd. (a)). The jury also found that Burke personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court sentenced Burke to a determinate term of 16 years.
Burke appealed his conviction and this court affirmed the conviction, but remanded for resentencing. (People v. Burke (Jan. 17, 2018, D072296 [nonpub. opn.].)
During the pendency of the first appeal, the trial court held two restitution hearings. It ordered Burke to pay restitution to the victim's siblings and to the victim's mother. Burke appeals the restitution orders. He challenges only the portions of the orders awarding the victim's mother for lost wages and to the victim's sister for lost wages incurred by her husband, the sole support of the family, when he was not working in order to support the sister during the trial court process.

A jury convicted Vincent Manuel Medellin of attempted first degree burglary (Pen. Code, §§ 664/459; count 1); attempted criminal threats (§§ 664/422; count 2); and resisting, delaying, and obstructing a public officer (§ 148, subd. (a)(1); count 3). The jury also found true that Medellin used a firearm in the commission of counts 1 and 2 under section 12022.53, subdivision (b). The court sentenced Medellin to prison for 12 years.
Medellin appeals, contending the trial court erred by granting his motion to represent himself and then subsequently by not revoking that order when it became "obvious" that "his mental incompetence was jeopardizing his defense." We affirm because the record shows that Medellin's waiver of his right to counsel was knowing and voluntary, and there was no showing in the record that he was unable to perform the basic tasks needed to represent himself without the help of counsel.