CA Unpub Decisions

Thomas Allen Meredith was convicted by a jury of possession of ammunition by a felon and possession of a controlled substance for sale (methamphetamine), items that were discovered in the course of a search pursuant to warrant, and one count of possession of a controlled substance (methamphetamine) discovered in a later arrest. He was sentenced to a state prison term of four years. On appeal Meredith contends the affidavit submitted in support of the warrant contained intentional and material misstatements of fact and that in ruling on his motion to traverse the search warrant the trial court improperly conducted an in camera hearing pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), rather than a contested evidentiary hearing pursuant to the United States Supreme Court’s decision in Franks v. Delaware (1978) 438 U.S. 154 [98 S.Ct. 2674, 57 L.Ed.2d 667] (Franks). He also contends the court committed instructional error. We reverse.

Defendant Jose Garcia appeals from the judgment after his conviction by jury of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found true the special circumstance allegations that the murder was committed during the commission of a robbery and a carjacking (§ 190.2, subd. (a)(17)). The jury also found true the allegations that defendant personally used a firearm and personally and intentionally discharged a firearm which proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (b), (c) and (d). A different jury previously convicted defendant of unlawful firearm activity pursuant to section 12021, subdivision (d)(1).[2]

Defendants Norma Lilian Cortez and Rodrigo Alonso Bernal were charged by amended information with premeditated murder (Pen. Code, § 187, subd. (a); count 1)[1] and attempted premeditated murder (§§ 664/187, subd. (a); count 2). It was alleged that Bernal personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (d); counts 1 & 2). As to both Cortez and Bernal, it was alleged that a principal personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (d), (e)(1); counts 1 & 2). The information also included gang allegations (§ 186.22, subd. (b)(1)(C), (4)). The defendants were found guilty by the jury, and all special allegations were found to be true. They were each sentenced to an aggregate term of 50 years to life.

A jury convicted Michael Angelo Mauricio of three counts of first degree murder (Pen. Code, § 187, subd. (a))[1] arising from two separate drive-by, gang related shootings. The jury’s guilty verdicts included special circumstance findings as to each count that the murder was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), that Mauricio intentionally killed the victim while an active participant in a street gang (§ 190.2, subd. (a)(22)), and that he had committed multiple murders (§ 190.2, subd. (a)(3)). The jury further found as to each murder count that a principal had personally used a firearm (§ 12022.53, subds. (b) & (e)), personally discharged a firearm (§ 12022.53, subds. (c) & (e)) had done so causing great bodily injury and death (§ 12022.53, subds. (d) & (e)), and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Mauricio to three consecutive terms of life without the possibility of parole (LWOP), plus three consecutive indeterminate of term of 25 years to life, one as to each murder count, for the attached findings that a principal had personally discharged a firearm causing death.
On appeal, Mauricio contended the trial court erred in declining to exercise its discretion to sentence him to terms of 25 years to life, rather than LWOP. In an opinion we issued on November 28, 2011, we modified various fines and fees, rejected Mauricio’s contention, and affirmed his multiple LWOP sentence. (People v. Mauricio (Nov. 28, 2011, B224505) [nonpub. opn.].) The California Supreme Court denied Mauricio’s petition for review. (People v. Mauricio (Feb. 29, 2012, S199094) [nonpub. order].) Mauricio filed a petition for writ of certiorari in the United States Supreme Court. (Mauricio v. California (No. 11-10139.) On June 25, 2012, the United States Supreme Court issued its decision in Miller v. Alabama (2012) 567 U.S. ___ ; 132 S.Ct. 2455 (Miller) concerning the propriety of imposing LWOP sentences upon defendants who commit LWOP imprisoning offenses when a minor. On October 29, 2012, the United States Supreme Court granted Mauricio’s petition for writ of certiorari, vacated our November 2011 judgment, and remanded the cause to our court with directions to further consider Mauricio’s sentencing arguments in light of Miller. We now undertake the task assigned to us by the United States Supreme Court.

Blue Shield of California Life & Health Insurance Company (Blue Shield) filed a timely petition for writ of mandate pursuant to Code of Civil Procedure, section 437c, subdivision (m)(1), seeking reversal of the trial court’s order denying its motion for summary judgment on the grounds it is entitled to summary judgment as a matter of law. We shall grant the petition.

D.Y. (Father), father of one-year-old D.H., petitions this court pursuant to California Rules of Court, rule 8.452, to set aside the juvenile court’s order terminating reunification services to him and the mother of D.H. (Mother) and setting a permanency hearing under Welfare and Institutions Code section 366.26 (section 366.26 hearing).[1] He contends there was no substantial evidence supporting the finding that he was provided with reasonable reunification services. We reject the contention and deny the petition on the merits.

Byron Johnson (appellant) appeals from a judgment entered after he pleaded no contest to being a felon in possession of a firearm (a shotgun) (Pen. Code, § 29800, subd. (a)(1)).[1] Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

This appeal arises from an action involving a sale of real property. The buyer of the property, Marion Hill, sued the sellers, appellants Jesse and Brenda Rhodes,[1] and the sellers’ agents, respondents Decker Bullock Realty, Inc., William Bullock, and Lydia Sarkissian (collectively DBR), claiming the Rhodes and DBR had failed to make adequate disclosures in connection with the sale of the property. Both Jesse and Brenda filed cross-complaints against DBR.
DBR and Hill eventually agreed to settle Hill’s claims for $150,000. DBR then moved for a determination of good faith settlement under Code of Civil Procedure section 877.6.[2] The trial court granted the motion over the Rhodeses’ opposition, and its order dismissed all pending cross-complaints against DBR.

Appellant Johnathan Phillip Daniel pled no contest to two counts of first degree robbery and admitted the truth of two firearm use enhancements. A negotiated plea indicated a potential sentence of 16 years and 4 months. (Pen. Code,[1] §§ 211, 459; former § 12022.53, subd. (b).) The trial court rejected a request to withdraw his plea. Daniel was sentenced to 16 years, 4 months in state prison for these two robberies and a probation violation matter. He appeals, asking us to strike a term that he challenges as an unauthorized sentence and contending that the trial court erred by refusing to allow him to withdraw his plea. We affirm the conviction, including the sentence.

Father appeals from the jurisdictional and dispositional orders declaring his thirteen-year-old daughter and five-year-old son dependent children and removing them from his custody. He contends there is no substantial evidence to support the orders and that the court abused its discretion in ordering supervised visitation. We affirm.

On April 2, 2011, petitioner Chirag Patel, who was already on probation for reckless driving stemming from a prior drunk driving arrest, was again arrested for driving under the influence of alcohol. He submitted to a blood test, which showed a blood-alcohol content (BAC) of 0.13 percent. Following an administrative per se hearing, the Department of Motor Vehicles (DMV) suspended his driver’s license.
Patel filed a petition for writ of mandate in the superior court to set aside the suspension. The trial court found that the forensic alcohol report lacked trustworthiness and that there were chain of custody problems with Patel’s blood sample such that its integrity was questionable. It thus concluded that the DMV had failed to satisfy its burden of proof, and granted the petition.
The DMV appeals. We conclude that the trial court’s findings were unsupported by substantial evidence, and we reverse.

Plaintiff Mihail Kivachitsky sued defendant Kari Mashburn for damages due to injuries he sustained while working on a construction project at her home. Defendant moved for summary judgment on the ground that workers’ compensation is plaintiff’s exclusive remedy. The motion was granted based on a finding that plaintiff had admitted working sufficient hours on the project to qualify as a residence employee covered by workers’ compensation insurance. Because the evidence permits a contrary finding, we reverse the summary judgment for defendant.

A modification decision.

R.U. (Father) and L.B. (Mother), whose marriage was terminated in May 2001, are the parents of two minor children, both of whom were conceived using egg donors. One of the conditions of the judgment of dissolution to which both parties stipulated was Father could not inform the children of this fact during their minority. Father appeals from an order denying his motion for modification of this and other conditions relating to custody, asserting his due process rights were violated by the court’s denial of his request for an evidentiary hearing. Father maintains the court erred in denying his motion to inform the children of their “biological mothers” and to enjoin Mother from “interfering” with his attempt to obtain an Italian passport. We conclude the trial court did not err, and affirm.