CA Unpub Decisions

Appellants Alvaro Fernandez and Miguel Martinez appeal from their convictions on one count each of carrying a loaded firearm in public (Pen. Code, § 25850), carrying a concealed firearm within a vehicle (§ 25400), and being a felon in possession of a firearm (§ 29800). Each conviction included an enhancement based on findings that appellants committed the crimes for the benefit of a criminal street gang (§ 186.22). Appellants assert several errors, some jointly and others individually. These include allegations the evidence was insufficient to support the gang enhancements, the gang-associated felony nature of the charges, or the underlying offenses. They also include allegations of instructional and jury verdict error, as well as a sentencing concern.
For the reasons set forth below, we affirm.

In a single count, Alberto Lizarraga was charged and convicted of “escape or attempt to escape.” Neither the trial court nor the prosecutor explained to the jury it must unanimously agree on which crime Lizarraga committed when finding him guilty. As a result, the judgment must be reversed because the record does not establish the jury unanimously agreed that Lizarraga was guilty of either escape or attempt to escape.

“If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the [trier of fact] for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (People v. Sanchez (2016) 63 Cal.4th 665, 684 (Sanchez).) In the instant matter, neither side objected to the introduction of such hearsay at trial.

After defendant Martin Link broke into two apartment buildings in San Francisco, a jury convicted him of two counts of residential burglary and one count of vehicle tampering, and the trial court sentenced him to eight years and four months in prison. On appeal, Link contends that (1) the court erred by permitting a police officer to testify about prior encounters the officer had with him; (2) the court violated his federal constitutional rights by limiting his cross-examination of that officer; and (3) there was cumulative error. We reject these contentions and affirm.

A jury convicted Shaine Joseph Lavoie of forgery (Pen. Code, § 470, subd. (d), (all statutory citations are to the Penal Code unless otherwise designated), theft from an elder (§ 368, subd. (d)), writing a nonsufficient funds check (§ 476a, subd. (a)), 10 counts of securities fraud (Corp. Code, § 25401, subd. (a)) and 12 counts of grand theft (§ 487, subd. (a)).) The jury also found property loss exceeded $150,000 (§ 12022.6, subd. (a)(2)), and that Lavoie engaged in aggravated white collar crime (§ 186.11, subds. (a)(1), (2)). Lavoie contends the jury erroneously convicted him of two counts of grand theft from Brandon Wells (counts 28 and 29) because he acted with a single intent and overarching scheme to steal. He also argues the court erred in failing to stay (§ 654) concurrent terms for grand theft, and writing or delivering a bad check against Wells. For the reasons expressed below, we agree with Lavoie’s contentions and will modify the judgment accordingly. In all

Defendant and appellant Jesus Jaime pleaded no contest to felony leaving the scene of an accident that resulted in death (Veh. Code, § 20001, subd. (b)(2)), commonly known as “hit and run.” The trial court sentenced him to three years in prison and ordered him to pay direct victim restitution. Jaime’s sole contention on appeal is that the restitution orders must be reversed because his criminal conduct, leaving the scene of an accident, did not cause the victim’s injuries and economic damages. In light of our Supreme Court’s recent decision in People v. Martinez (2017) 2 Cal.5th 1093, we reverse the restitution orders and remand for further proceedings.

Defendant Vincent Michael Hoffman was convicted by guilty plea of preparing false evidence for a fraudulent purpose. On appeal, he contends the trial court erred in imposing prior prison term enhancements because the felonies underlying those enhancements had been designated as misdemeanors pursuant to Proposition 47. The People concede and we agree. Accordingly, we strike the two prior prison term enhancements.

Defendant and appellant Paul Andre Grinker was convicted by jury in 1997 of possession of a firearm by a felon, in violation of former Penal Code section 12021, subdivision (a)(1). The jury also found defendant had suffered 81 prior convictions under the three strikes law. Defendant was sentenced to 25 years to life. In 1998, this court ordered 38 of the prior convictions stricken, but otherwise affirmed the judgment.
Defendant filed a petition for recall of sentence on December 18, 2012. The petition alleged defendant was entitled to resentencing under the Three Strikes Reform Act and section 1170.126 because his commitment offense is a not a serious or violent felony. After the filing of further pleadings by the parties, the court denied the petition based on its finding, beyond a reasonable doubt, that defendant was armed with a firearm in the commission of the commitment offense and statutorily ineligible for relief under sections 1170.126, subdivision (e)(2), and 667, sub

Appellant Robin Kay, as trustee of the Kay Family Revocable Trust, is the successor to the original plaintiff, Philip Kay, who died while this case was pending. Philip Kay is a former attorney who brought this action against Helene Wasserman and Ralphs Grocery Company (Ralphs) over their connection with a State Bar adjudication that resulted in his suspension. The trial court granted summary judgment in favor of Wasserman and Ralphs, holding that the uncontroverted evidence demonstrated that neither Wasserman nor Ralphs was a state actor or acting under color of law to support claims under title 42 of the United States Code section 1983 (section 1983). We affirm.

Defendant Matthew Cobbs contends on appeal that his sentence is unauthorized. The People concede and we agree. Accordingly, we vacate the sentence and remand for resentencing. In all other respects, we affirm.

Defendant Michael Joseph Chavez, Jr., was convicted of twelve counts of lewd and lascivious conduct with a child who is under the age of 14 years for molesting his daughter and his stepdaughter. (Pen. Code, § 288, subd. (b)(1).) He was sentenced to an aggregate term of 96 years in prison.
On appeal, defendant contends the court erred in admitting evidence of consensual sexual acts with his former wife, evidence of uncharged sexual acts with his daughter, and testimony that he did not respond when his stepdaughter asked him if he could take a lie detector test about the abuse allegations. He claims the errors were cumulatively prejudicial, violating his federal and state constitutional rights to due process and a fair trial. Conceding he did not object to the evidence of the uncharged acts with his daughter, defendant contends his counsel was ineffective for failing to object. He also contends the court erred in calculating his presentence custody credits. We agree defendant i

The San Diego District Attorney filed an amended complaint charging Terry Lee Carter with arson of an inhabited structure (Pen. Code, § 451, subd. (b); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and unlawfully causing a fire that caused an inhabited structure to burn (§ 452, subd. (b); count 3). Carter pled guilty to count 3. In exchange for Carter's guilty plea, the court granted the People's motion to dismiss counts 1 and 2.

Derek Burton (defendant) appeals from the denial of his requests for resentencing pursuant to Proposition 47 (Pen. Code, § 1170.18). We appointed counsel to represent him on this appeal.

On April 28, 2016, defendant and appellant, Shay James Beatty, filed a petition for resentencing pursuant to Penal Code section 1170.18, which the court denied. On appeal, defendant contends the order denying his petition was void as an act in excess of the court’s jurisdiction because the court which originally sentenced defendant was not the court which ruled on his petition. We affirm.