CA Unpub Decisions

Miguel DelReal appeals from his convictions of two counts of attempted murder, two counts of assault with a semiautomatic firearm and accompanying gang and firearm sentence enhancements.[1] We affirm the convictions and remand the cause to the trial court to vacate the gang enhancements and resentence DelReal accordingly.

Appellant Michael Madrid was convicted by jury of five counts of attempted murder. The jury found gun use allegations under Penal Code section 12022.53, subdivisions (b), (c), (d) and (e) to be true, as well as a gang allegation under Penal Code section 186.22, subdivision (b)(4).

Codefendant, Francisco Ramos, was convicted by jury of two counts of attempted murder. The jury found the same gun use and gang allegations to be true as to Ramos.

Both appellants contend their right to due process was violated by the giving of instructions on a kill zone theory that was not supported by the evidence. Additionally, Madrid contends that his sentence of 50 years to life constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

A modification decision.

The People petition for a writ of prohibition or mandamus directing the trial court to declare that real party in interest, Christopher Hey, is ineligible for presentence reduction credits awarded pursuant to Penal Code section 4019 [1] for the time he is to serve in a Sheriff’s Work Alternative Program. Because the law clearly establishes that service in an alternative work release program does not qualify for section 4019 credits, and the record in these proceedings reflects that the trial court left the award of such credits to the discretion of the county sheriff, we grant the writ.

Appellant Lamont William Jones, Jr., appeals from an order requiring him to pay more than $200,000 in victim restitution to cover medical bills of a man he criminally assaulted. Both he and respondent agree that the amount of restitution was incorrectly calculated, but they disagree on the appropriate remedy. We reverse the restitution award and remand to the trial court for further proceedings.

The incident giving rise to Hayes’s conviction took place on June 4, 2013, at the Humboldt County Correctional Facility where Hayes was an inmate. Sherriff’s Deputy John Craig testified that he was looking through a window and saw Hayes sitting on the floor of the recreation yard. Deputy Craig was about 70 feet away from Hayes, and Hayes was about 10 feet away from a group of inmates playing basketball. Hayes had his back to the wall and was fiddling with something in his lap.

Deputy Craig entered the yard to investigate. As he approached, Hayes placed something behind his back. Deputy Craig instructed Hayes to stand up, and Hayes complied but asked, “What?” Deputy Craig noticed a crumpled piece of paper behind Hayes. No other debris was in the area. Deputy Craig believed that the paper was a page out of a jail bible, and he knew these pages were sometimes used by inmates to roll, light, and smoke “whatever they have.”

Deputy Craig found a substance in the paper about the size of a pencil eraser. He believed it was marijuana based on the smell and “look of it.” He testified that he was familiar with marijuana because he had seen it in the jail and at parties when he was younger. Together, the paper and substance weighed about 0.2 grams. Deputy Craig believed that this amount of marijuana was enough to be smoked, but he was unsure if it would have an intoxicating effect.

Jeremiah C. (Jeremiah), a minor, appeals after the juvenile court sustained an allegation that he made a criminal threat (Pen. Code,[1] § 422). He contends there was no substantial evidence supporting the finding. We affirm the judgment.

Justin W. appeals from an order terminating his parental rights to hisbiological son J.T. (the minor) after the minor’s mother placed him with relatives for adoption and Justin failed to timely file an action to establish the existence of a parent-child relationship. (Fam. Code, §§ 7662, 7667.)[1] We reject his challenges to the procedure used to terminate his parental rights and the court’s jurisdiction over him as the resident of another state. We also conclude the court did not commit prejudicial error in determining the minor was not an Indian child for purposes of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.).

Following a trial by jury, Aaron Miles was convicted of the first degree murder of Alvin Torres in Richmond, California. It was undisputed that shortly before the shooting Miles was within a block of the location where Torres was shot. One eyewitness, who knew Miles, identified him as the shooter but later recanted the identification.

Following his conviction, Miles learned that 10 months after the Torres shooting, the murder weapon was seized from a third party in Oakland, California. Based on that evidence, Miles moved for a new trial. The trial court denied Miles’s motion. On appeal, Miles contends that the trial court abused its discretion when it denied his new trial motion and that the prosecutor violated her obligations under Brady v. Maryland (1963) 373 U.S. 83 (Brady). We disagree and affirm.

Plaintiff Ana M. Menjivar appeals from the trial court’s order dismissing her case after defendants JPMorgan Chase Bank, N.A. (Chase), the Federal National Mortgage Association (Fannie Mae), and the California Reconveyance Company (CRC) successfully brought a motion for summary adjudication of her causes of action to quiet title and for unjust enrichment. Plaintiff claims the court erred in making certain evidentiary rulings. We affirm.

Following the death of her husband, Marie Cotton sued her stepson, Soul Cotton, for, among other things, unfair business practices regarding the family-run automotive body repair shop.[1] Soul, together with co-workers, Michael Gonzales, Jay Hillard, and Duane Mertle (cross-complainants), countersued Marie for various Labor Code violations, among other causes of action. Soul and his co-workers alleged in an amended cross-complaint that Marie had (1) threatened to prevent Gonzales from retrieving his personal property and threatened to take his and his parents’ money unless he changed his position in the underlying lawsuit; and (2) unlawfully took possession of and destroyed personal property belonging to Soul and Gonzales. Cross-complainants alleged that Marie’s demand constituted intimidation and threats (Civ. Code, § 52.1, subd. (b)(3) [ninth cause of action]) and that her unlawful possession and destruction of their personal property constituted conversion (Civ. Code, §§ 1965, 1993.03; Code Civ. Proc., § 1174, subd. (e) [tenth cause of action]). Marie moved to strike the ninth and tenth causes of action in the cross-complaint. She contended that the ninth and tenth causes of action were based upon protected activities under the anti-SLAPP statute (Code Civ. Proc., [2] § 425.16) and that cross-complainants could not establish a probability of prevailing because Marie’s communications were subject to the litigation privilege of Civil Code section 47, subdivision (b). The trial court denied Marie’s motion.

Roosevelt Williams acquired a San Francisco taxi medallion in 1978 and had a long ensuing career as a taxi driver. He married Olevia [1] in 1992, and he died intestate in April 2010. Roosevelt had three children from a prior marriage, including Dionne. [2] Shortly before he died, Roosevelt surrendered his taxi medallion, and it was placed on a list to be sold under a program allowing for such sales. The sale occurred after Roosevelt’s death.

The issue in this case is how the proceeds from the sale are to be distributed. The probate court determined that they are separate marital property and are to be shared among the children and Olevia. On appeal, Olevia contends that the proceeds are community property to which she is solely entitled. We agree with her and therefore reverse.

This is an appeal from judgment after a jury convicted appellant Thelmeas Walker, Jr. of forcible rape during a residential burglary, which crime he accomplished by personal use of a firearm. Appellant challenges the judgment on grounds that include violation of his constitutional right to avoid cruel and unusual punishment, erroneous admission of evidence and instruction to the jury, and failure to strike or vacate the finding on a lesser-included offense. We remand this matter to the trial court to correct a minor sentencing error, and in all other regards affirm the judgment.

Defendant Arthur Vito Mendez was charged with making criminal threats to the manager of his apartment complex while under the influence of methamphetamine. A jury found defendant guilty of making criminal threats and using methamphetamine. (Pen. Code, § 422;Health & Saf. Code, § 11550, subd. (a).) [1] The trial court found allegations of seven prior strike convictions and one prior serious felony conviction to be true. The court struck six of the seven strike priors and sentenced defendant to an aggregate term of nine years.

On appeal, defendant contends the trial court erred by admitting third party testimony about several prior incidents in which defendant engaged in yelling and screaming at fellow tenants. Defendant argues that admission of this testimony violated Evidence Code sections 352 and 1101. To the extent defense counsel failed to object below, defendant asserts his counsel was ineffective.

The record shows the victim was aware of—and testified about—several prior incidents involving defendant’s yelling and screaming at tenants in the apartment complex. We conclude that third party testimony about those incidents was relevant and admissible to prove the victim’s state of mind. As to prior incidents of which the victim was unaware, the defendant suffered no prejudice from the admission of testimony about them. Accordingly, we conclude the defendant’s claims are without merit. We will affirm the judgment.