CA Unpub Decisions

A jury convicted appellant, Kevin Broughton, of one count of robbery (Pen. Code, § 211). Appellant admitted a serious/violent felony ("strike") prior conviction (§ 667, subds. (b)-(i)); and a serious felony prior conviction (§ 667, subd. (a)(1)). , this crime involved an act of shoplifting during which appellant used force and threats of force to escape with personal property. Thus, this became what is often called an "Estes" robbery, based on the case of People v. Estes (1983) 147 Cal.App.3d 23 (Estes). Appellant contends the Estes case was wrongly decided, and all the cases which have followed that case since 1983 were wrongly decided. Appellant recognizes our California Supreme Court has upheld the Estes definition of robbery on numerous occasions and that under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, we are required to follow the decisions of the Supreme Court. We will decline to follow either of appellant's suggestions.

A jury convicted appellant, Kenneth Gutierrez, of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (§ 11364). The court found appellant had previously been convicted of attempted murder (Pen. Code, §§ 187, 664). The court found that prior conviction was both a serious/violent felony prior conviction and a "super strike" under Penal Code section 667, subdivision (e)(2)(C)(iv), which made the section 11377 conviction a felony. The court struck the serious/violent felony prior and sentenced appellant to a two-year term. The court imposed various fines and fees including a lab analysis fee (§ 11372.5, subd. (a)).

A jury found Abdullelah Ibraham Sowayigh guilty of one count of stalking (Pen. Code, § 646.9, subd. (a).) The trial court imposed a middle-term sentence of two years in prison.
Sowayigh contends (1) insufficient evidence supports his stalking conviction; (2) the trial court erred in denying his motion for a new trial, in which Sowayigh contended that he was denied his right to testify at trial due to ineffective assistance of counsel; and (3) the trial court abused its discretion by basing its middle-term sentence on improper factors. We conclude that Sowayigh's arguments lack merit, and accordingly we affirm the judgment.

Defendant and appellant Ernesto H. Mendez was sentenced to four years in state prison for violating Penal Code section 29800 subdivision (a)(1), (possession of a firearm by a felon), and one prior strike. Mendez asks this court to independently review the sealed search warrant affidavit and in camera proceeding to determine whether the trial court improperly denied his motions to unseal the affidavit, traverse and quash the warrant, and to suppress evidence. We conclude the trial court did not err in denying these motions and affirm the judgment.

Lisa Carroll appeals from a superior court judgment entered after the trial court denied her special motion to strike her former husband Philip Bohrer's complaint. (Code Civ. Proc., § 425.16.) Carroll contends Bohrer's tort claims set forth in his complaint arise from acts in furtherance of her right to petition. She further contends that Bohrer cannot meet his burden of showing a probability of prevailing on his tort causes of action because (1) they involved custody and visitation matters then pending in the family court, which had exclusive jurisdiction, and (2) they are based on conduct that is absolutely privileged under Civil Code section 47, subdivision (b) (the litigation privilege). To the extent there is a narrow exception in cases of this nature for claims based on knowingly false reports of child abuse to third parties, Carroll argues that Bohrer presents insufficient evidence that any report she made was knowingly false. We agree and reverse.

In the lawsuit underlying this appeal, attorney John A. Delisi filed a complaint against his former client, Allan Wagner, for breach of contract and a common count for services rendered. Delisi sought attorney fees and costs allegedly due from a retention in which Delisi represented Wagner in his contested dissolution of marriage proceedings (Dissolution Action) with his former wife, Yoshie Wagner (Yoshie). In a third amended cross-complaint (TAC C), Wagner named as cross-defendants Delisi and Brandon Smith, who had been Yoshie's attorney in the Dissolution Action. Wagner alleged causes of action against Delisi for breach of contract and negligence and against Delisi and Smith for "misconduct, willful concealment," "abuse of attorney-client fiduciary relationship," "violations of rules of court, duties," and "collusion with opposing counsel."

A jury convicted Karl Eric Winchell on nine counts of embezzlement (Pen. Code, § 506) and one count of grand theft (§ 487, subd. (a)). The jury found true a sentencing allegation that Winchell had engaged in a pattern of related conduct involving a loss of over $100,000. (§ 186.11, subd. (a)(1).) It found not true the allegation that the losses arose from a common scheme or plan. (§ 12022.6, subds. (a)(1), (b).) The jury acquitted Winchell on 15 counts of embezzlement (§ 506), 22 counts of grand theft (§ 487, subd. (a)), six counts of petty theft (§ 484), and eight counts of embezzlement against an elder or dependent adult (§ 368, subd. (d)). The jury was unable to reach a verdict on two additional counts of petty theft, and the trial court declared a mistrial as to those counts. Winchell appeals. The court suspended execution of a sentence of nine years eight months in prison. Winchell appeals. The judgment is affirmed as modified.

Following a traffic stop, a police officer searched the car defendant Sabrina Baca was driving and found contraband. The officer testified he knew that defendant was on searchable probation, and the trial court later confirmed that fact and denied defendant’s motion to suppress the evidence obtained as a result of the search, finding the search was a valid probation search. On appeal, defendant contends the search was not valid because the officer’s knowledge of defendant’s probationary status was not objectively reasonable. For reasons we will explain, we disagree and affirm the judgment.

Defendant Michael Owen Gardner appeals from his convictions of continuous sexual abuse, oral copulation of a child, and child molestation. He asserts the following: (1) the trial court improperly admitted evidence of prior uncharged sex offenses under Evidence Code sections 1108 and 1101; (2) trial counsel rendered ineffective assistance when he solicited incriminating information from the victim and did not object when the victim on redirect testified to an undisclosed incident; (3) the trial court abused its discretion when it admitted evidence of peepholes in a bathroom door for the limited purpose of witness credibility; and (4) CALCRIM No. 1191, an instruction on the use of sexual propensity evidence, violates due process guarantees.
We disagree with defendant’s contentions and affirm the judgment.

In 2007, in connection with claims of self-dealing, the trial court removed Rudolf Isch as trustee of a family trust. In 2009 Rudolf settled litigation regarding his trust management by agreeing to pay the trust half a million dollars, plus a $100,000 assessment for fees and costs if his first payment was late; he also signed stipulated judgments to effectuate the terms of the settlement agreement. Four years later, when the successor trustee tried to collect on the judgment debt by writ of execution, Rudolf made a postjudgment motion to stay enforcement of the writ of execution, to quash the writ, to set aside the judgment on which the writ was based and for set-off, asserting arguments regarding the timing of his 2009 payments, the fairness of the $100,000 penalty, and his right to credits and offsets. The trial court denied Rudolf’s motion as a collateral attack on a final judgment and also denied Rudolf’s set-off requests.

Paul Belmontez was found suitable for parole, but later had his suitability finding rescinded. He filed a petition for writ of habeas corpus challenging the rescission, alleging that the Board of Parole Hearings (BPH) had relied on incorrect information. This court issued an order to show cause why the petition should not be granted, and appointed counsel for Belmontez. After considering the petition, the return, the traverse and counsel’s argument, we conclude there was sufficient additional evidence to support the BPH’s decision and so discharge the order to show cause and deny the petition.

Defendant and appellant DeShawn Darby was placed on formal probation in January 2014, with execution of a five-year prison sentence suspended. One of defendant’s probation conditions required him to obey all laws. Defendant appeals from the revocation of his felony probation after a formal revocation hearing and execution of a stayed five-year prison term. We affirm.

Defendant and appellant David Jackson (defendant) appeals from the judgment entered after he pled no contest to attempting to dissuade a witness. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. We notified defendant of his counsel’s brief and gave him leave to file his own brief or letter stating any grounds or argument he might wish to have considered. Defendant filed his own brief, seeking new appellate counsel, asserting ineffective assistance of trial counsel, and asserting that the trial court imposed unauthorized sentence enhancements. We have reviewed the entire record and find defendant’s contentions are without merit or not amenable to review on appeal. Finding no other arguable issues, we affirm the judgment and deny defendant’s request for substitute counsel.

Fernando V. (father ) appeals from a judgment declaring his daughter Kattie V. (born Nov. 2015) a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). Father contends that substantial evidence did not support the juvenile court’s findings and that the court abused its discretion in failing to terminate jurisdiction with family law custody and visitation orders. We affirm.