CA Unpub Decisions

The court found that minor G.P. committed felony vandalism. (Pen. Code, § 594, subd. (a).)[1] The court declared him a ward under Welfare and Institutions Code section 602 and ordered him to be committed to juvenile hall for 60 days, but stayed the commitment pending his successful completion of probation. On appeal minor contends that the court applied the wrong legal standard in determining he committed felony vandalism and that insufficient evidence showed he caused damage in excess of $400. We affirm.

A jury convicted Hong Thai Luong of committing lewd acts upon four girls between the ages of eight and 10 in separate incidents as a school music teacher and at a tutoring center. (Pen. Code, §§ 288, subd. (a); 1203.066, subd. (a)(7) [punishment enhancement for multiple child victims].) He argues the trial court erred in denying his mistrial motion when the prosecutor failed to redact the names of two other girls the victim mentioned in a videotaped interview with a social worker. Based on the context of the interview, Luong argues the jury may have inferred the girls also were Luong’s victims. As we explain, the reference was brief, vague, and the context did not necessarily suggest the two girls were themselves additional victims of uncharged lewd acts committed by Luong. Consequently, the trial court did not abuse its discretion in denying a mistrial. Similarly, the prosecutor did not commit reversible error or misconduct in failing to ensure the names were redacted from the video, or in a separate incident in cross-examining Luong. Luong’s challenges are therefore without merit, and we affirm the judgment.

A jury convicted defendant Robert Luis Reil of conspiracy to commit robbery, count 1 (Pen. Code, §§ 182, subd. (a)(1), 211; all further statutory references are to the Penal Code), murder with special circumstance that murder was committed during an attempted robbery, count 2 (§§ 187, 190.2, subd. (a)(17)(A)), and participation in a criminal street gang, count 3 (§ 186.22, subd. (a)). They also found firearm enhancements (§ 12022.53, subds. (d), (e)(1)) and gang enhancements (§ 186.22, subd. (b)). The information also alleged a strike prior (§ 667, subds. (b)-(i), a serious felony prior (§ 667, subd. (a)(1)), and three prison prior enhancements (§ 667.5, subd. (b)). The prior conviction allegations were dismissed. The court sentenced defendant to 25 years to life on count 2, 25 years to life for the gun enhancement for a total of 50 years to life. The court stayed sentence on counts 1 and 3 and the gang enhancement on count 2 under section 654.
In his appeal defendant contends insufficient evidence supports the conspiracy to commit robbery or the murder count. He also contends the court erred by instructing the jury that the testimony of his girlfriend required supporting evidence and in failing to instruct on involuntary manslaughter. The evidence was sufficient and there was no instructional error. We therefore affirm the judgment.

A jury convicted appellant of aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)) and commission of a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)).[1] He was sentenced to life in prison with the possibility of parole. On appeal, he contends his aggravated kidnapping conviction must be reversed because his movement of the victim was incidental to his commission of the lewd act upon her, and therefore did not meet the asportation requirement of section 209, subdivision (b)(1). He also contends that section is unconstitutionally vague because it does not provide adequate notice of what is prohibited conduct. We reject both these arguments but conclude, as has the Attorney General, that his sentence was incorrectly calculated, and he deserves an additional 101 days of local conduct credits pursuant to section 2933.1.

LaShawn Lanette Lilly-Freeman (Lilly-Freeman) and Latoya Janae Lilly (Lilly) appeal from judgments after a jury convicted them of two counts of second degree robbery and found true firearm enhancements. They argue their Sixth Amendment confrontation clause rights were violated, and Lilly argues the prosecutor committed misconduct. None of their claims have merit, and we affirm the judgments.

A jury convicted defendant Mark Anthony Figueroa of second degree murder (Pen. Code, § 187; all further statutory references are to this code) and street terrorism (§ 186.22, subd. (a)). It also found true he committed the murder for the benefit of a criminal street gang. (§ 186.22, subd. (b).) After defendant admitted he had served a prior prison term (§ 667.5, subd. (b)), the trial court sentenced him to 25 years to life, consisting of 15 years to life for second degree murder and an additional 10 years for the gang allegation. It also imposed, then stayed under section 654, a two-year sentence for the street terrorism count; it struck the prior prison term allegation for sentencing purposes.
Defendant contends the court abused its discretion in failing to conduct a hearing to determine if a juror had been improperly influenced by seeing gang graffiti and his moniker in a courthouse bathroom. He also argues the court erred in imposing the 10-year enhancement for the gang allegation rather than striking it. Agreeing with the latter contention, we remand the case for resentencing. In all other respects, the judgment is affirmed.

Defendant Shawn Michael Espinoza was convicted of attempted murder, attempted robbery, assault with a semiautomatic firearm and street terrorism after the shooting of Brian Roundy. Defendant argues a number of issues on appeal, including evidentiary error, a lack of substantial evidence, instructional error, and improper coercion of a jury verdict on the first three counts. We find none of these arguments persuasive. We agree with defendant, however, that his conviction for street terrorism was improper because there was no evidence he was acting with any other gang member. We therefore reverse the street terrorism count and affirm the rest of the judgment.

T.P. (mother), in propria persona, seeks an extraordinary writ from the juvenile court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f))[1] terminating her reunification services and setting a section 366.26 hearing as to her six-and four-year-old sons, Nathan and Sebastian, respectively. Mother seeks a continuation of reunification services and return of the children to her custody. We deny the petition.

Rachael W. (mother) appeals from the juvenile court’s disposition on a Welfare and Institutions Code section 300 petition,[1] which placed R. with her noncustodial father, Hector S. (father), in Mexico, gave mother visitation rights as arranged by the parties, and terminated dependency jurisdiction. Mother contends the juvenile court erred when it placed R. with father and terminated dependency jurisdiction, and any failure of her trial counsel to preserve either issue for appellate review constitutes ineffective assistance of counsel. We affirm.

Defendant and appellant Angel Ayala Diaz contends the trial court abused its discretion in failing to strike, for sentencing purposes, one of his prior convictions for a serious or violent felony. He contends his two prior offenses arose from the same act. That fact is not demonstrated by the present record. Accordingly, in affirming the judgment against appellant, we are not required to, and do not, reach the legal theory defendant asserts.

Defendant and appellant Zechariah William Talburt contends the trial court committed misconduct in making a comment during the testimony of a witness. We conclude defendant forfeited this contention by not requesting a curative admonition during the trial. Accordingly, we affirm the judgment.

Appellant Ram Singh Nehara appeals from the trial court judgment denying him a writ of mandate. He sought a writ of mandate to overturn the administrative decision of the California Board of Registered Nursing (the board) revoking his license as a registered nurse; revocation was based on findings of gross negligence and unprofessional conduct. We find that substantial evidence supports the trial court’s decision, and the penalty imposed was not an abuse of discretion. Accordingly, we affirm the judgment.

Defendant and appellant Joey Phillip Salazar appeals from an order denying his petition for recall of his indeterminate life term under Penal Code section 1170.126, subdivision (f).[1] His sole issue on appeal is whether being armed with a firearm constitutes “using a firearm” to make a violation of Health and Safety Code section 11370.1, subdivision (a), into a “strike” so as to preclude recall and reconsideration of defendant’s sentence pursuant to Penal Code section 1170.126.[2]I

The juvenile court placed the minor on probation for six months and ordered him to pay the victim $530 in restitution after it found true allegations that he drove the victim’s two vehicles and stole his cell phone. The minor argues the court should reverse two of the three true findings and the restitution order. As discussed below, we affirm the judgment.