CA Unpub Decisions

Appellant Matthew Eugene Carlile appeals from the denial of his petition for resentencing, filed pursuant to Proposition 47. Appellant contends he was eligible for resentencing on his 2014 conviction for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) because he entered a commercial establishment with the intent to commit larceny by using a stolen credit card to purchase goods. For the reasons set forth below, we reverse and remand for further proceedings.

These consolidated appeals involve a single dispute over the scope of an audit of the records of Thrivent Financial for Lutherans (Thrivent), an out-of-state insurance company doing business in California. The audit was initiated by John Chiang, then Controller of the State of California (Controller), as part of a multistate investigation of insurance practices focused on the handling of unclaimed property due to be escheated to the state. The Controller sought to audit Thrivent’s records covering more than a 20-year period (1992–2013) and sought records of policies Thrivent had issued in states across the country, not just in California. Thrivent filed a complaint seeking injunctive and declaratory relief from what it claimed was an unconstitutional and overbroad audit, and the Controller filed a cross-complaint seeking to enforce what he saw as his right to conduct the wide-ranging audit. When Thrivent was denied a preliminary injunction to halt the audit, it appealed in No

Plaintiff Stephen P. Robinson appeals from a judgment and costs orders. Named as defendants are: Donald E. Cooper; Kevin Chang, Jayne Eun Mee Chang, and Brandon Min Hyuk Chang (collectively the Changs); and Rick and Margaret Jesmok (the Jesmoks). Uniti Bank is also a respondent in this appeal. Plaintiff and Cooper are attorneys who represented the Changs in a lawsuit. Following a settlement of that lawsuit, a dispute occurred between plaintiff and Cooper and the Changs as to how much plaintiff was owed pursuant to a contingency fee agreement. Namely, there was a question as to which one of two contingency fee agreements controlled. There was also a dispute as to what percentage of the attorney fees were owed to plaintiff. The Jesmoks and Uniti Bank separately had judgment liens on the Changs’ settlement amount. After a trial, the court found the agreement asserted by Cooper and the Changs controlled.

Appellants and defendants M3House, LLC dba mnmMOD Building Solutions, LLC (mnmMOD); Minarc, Inc.; Tryggvi Thorsteinsson; and Erla Dogg Ingjaldsdottir (collectively, defendants) appeal from an order denying their motion to compel plaintiffs and respondents Random Holdings, LLC, and Mario Romano (collectively, plaintiffs) into arbitration. Because we conclude that the defendants’ motion to compel arbitration should have been granted, we reverse the order.

After a bench trial, defendant and appellant Serapio Venegas was convicted of hit and run driving resulting in death or serious bodily injury, mayhem, driving with a suspended or revoked license, and assault with a deadly weapon. He contends the evidence was insufficient to support the mayhem and assault convictions. We disagree, and affirm the judgment.

The present case involves a jail fight in which defendant allegedly slashed the face of a fellow gang member who had fallen into disfavor with the gang. Defendant raises substantial evidence, instructional, and other challenges to the judgment. We affirm.

Despite being charged with nine counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), along with multiple victims enhancements under section 667.1, subdivisions (b) and (e), a jury convicted defendant Christopher Andrew Smith of a single count of section 288, subdivision (a), and a lesser included count of misdemeanor assault (§ 240). The trial court denied probation and sentenced defendant to three years in state prison.
Defendant contends the trial court abused its discretion in denying him probation because it relied on unsupported statements made by the prosecutor that led it to believe he had a high risk of recidivism when the evidence showed to the contrary. We disagree and affirm the judgment.

Appellant Estevan Ramirez appeals the judgment entered following his conviction by jury of first degree murder (Pen. Code § 187 (a)) with personal use of a firearm, personal and intentional discharge of a firearm, and personal and intentional discharge of a firearm causing death (§ 12022.53, subds. (b), (c) & (d)). We affirm.

Defendant, Ronnie Lee Moody, was convicted of seven counts arising out of a crime spree during which he stole a car, attempted to rob a tourist, was involved in a hit and run accident, and ultimately resisted arrest. He claims the trial court erred in not instructing the jury on attempted theft as a lesser included offense and with pinpoint instructions on force. Defendant also asserts admission of evidence of injuries to the tourist’s husband violated his due process rights, and the sentence for one count of resisting arrest should have been stayed.
The People also appeal, asserting the trial court erred in granting defendant’s Romero motion. In supplemental briefing, defendant contends and the People agree that the true finding on one of the prior prison term allegations should be vacated. We conclude that finding must be reversed. In all other respects, we affirm the judgment.

Alberto Lizarraga was arrested and placed in a Kern County jail for a felony, apparently attempted murder. While in custody he incurred three additional charges. In this case, a jury found him guilty of assault with a deadly weapon on a correctional officer. Lizarraga concedes he committed an act that could be construed as an assault, but argues the verdict is not supported by substantial evidence because the “weapon” used in the assault was not a deadly weapon. We agree.

Randall Lewis pleaded guilty to one count of grand theft of property with a value exceeding $950 (Pen. Code § 487, subd. (a); count 1). The court placed Lewis on three years of formal probation and imposed certain probation terms and conditions. The court committed Lewis to 90 days in county jail with 85 days of credit for time served. On appeal, Lewis challenges two of the probation conditions. First, he contends the condition requiring him to obtain approval from the probation officer regarding his residence is unconstitutionally overbroad. Second, he contends the portion of the Fourth Amendment waiver condition permitting warrantless searches of "computers, and recordable media" is unreasonable and constitutionally overbroad. We conclude Lewis forfeited his challenge to the residence approval condition and, even if he did not, the condition is not unconstitutional. We conclude the warrantless electronic search condition is valid under People v. Lent (1975) 15 Cal.3d

Appellant Demetrius Otis Hull, Jr., pled no contest to a violation of Penal Code section 422 in exchange for an agreed upon sentence of three years’ probation, including 365 days in the county jail. As part of the plea, it also was agreed that a second count of violating section 422 would be dismissed, with Hull agreeing to pay any restitution pertaining to the dismissed count. Hull was sentenced in accordance with the plea agreement. Hull appealed, but his certificate of probable cause was denied. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

Defendant was charged with several crimes arising out of two incidents, which occurred about a month apart from each other in March and April of 2009.
The first incident was a robbery at a barbershop on March 4, 2009. Defendant was charged with carjacking (count 5; Pen. Code, § 215), four counts of robbery (counts 6–9; § 212.5, subd. (c)), possession of a firearm by a felon (count 10; § 12021, subd. (a)(1)), and active participation in a criminal street gang (count 11; § 186.22, subd. (a).) As to the carjacking and robbery counts, the information alleged that a principal personally used a firearm in the commission of the offenses (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (e).) The information also alleged that the carjacking, robberies, and firearm possession were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Defendant Marcellous Bernard Drummer appeals from a judgment entered after a jury found him guilty of murder (Pen. Code, § 187 - count one), robbery of an inhabited place while acting in concert (§§ 211, 213, subd. (a)(1)(A) - count two), battery (§ 242 - count three), criminal threats (§ 422 - count four), and false imprisonment (§§ 236, 237 - counts five and six). The jury also found that the special circumstance allegation as to the murder (§ 190.2, subd. (a)(17)) and the gang allegations as to all the offenses (§ 186.22, subd. (b)(1)(C)) were true. The trial court found that the prior prison term allegation (§ 667.5, subd. (b)) was true. The trial court imposed a determinate term of 11 years and consecutive indeterminate terms of life imprisonment without possibility of parole and 15 years to life.