CA Unpub Decisions

Defendant Cuong Bui appeals from a judgment entered upon his plea of no contest to possession of marijuana for sale. He challenges only his sentence, contending that one of the conditions of his supervised release is impermissibly vague because it does not include a knowledge element. He further contends that he is entitled to 16 days of additional presentence credit. We will modify the judgment to correct these sentencing errors and otherwise affirm.

Appellant Kendyl Welch was committed to the custody of the Department of State Hospitals[1] for an indeterminate term in 2010, after a jury found him to be a “sexually violent predator” (SVP) within the meaning of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).[2] This court rejected all but one of his challenges to the order of commitment and remanded the case “for the limited purpose of reconsidering Welch’s equal protection claim in light of [People v.] McKee [(2010) 47 Cal.4th 1172 (McKee I)”] once the proceedings in that case became final. (People v. Welch (Apr. 3, 2012, H035567) [nonpub. opn.] (Welch I).) The California Supreme Court denied Welch’s petition for review. (Welch I, supra, review den. June 27, 2012, S202473.)
Meanwhile, the trial court on remand in McKee I held an evidentiary hearing on McKee’s equal protection claim, rejected it, and committed him as an SVP. The Fourth District Court of Appeal affirmed, and the California Supreme Court denied review. (People v. McKee (2012) 207 Cal.App.4th 1325, 1347-1348 (McKee II), review den. Oct. 10, 2012, S204503.)
With the decision in McKee II final, the trial court committed Welch to the custody of the DSH “as previously ordered.” Welch filed a timely notice of appeal from the trial court’s November 9, 2012 order. He contends that (1) “McKee II is not binding on [him] because he is dissimilarly situated from McKee and is entitled to his own evidentiary hearing” and that (2) “the McKee II court incorrectly applied the law regarding the alleged equal protection violation.” We affirm.

A jury found defendant Ly Tong guilty of felony use of tear gas and misdemeanor assault and resisting arrest for attacking a Vietnamese singer on stage during a performance at the Santa Clara Convention Center by spraying him with pepper spray and then resisting arrest. On appeal, defendant claims the trial court erred when it: (1) denied his Batson/Wheeler[1] motion; (2) denied his motion for judgment of acquittal under Penal Code section 1118.1[2] based on former section 12403.7[3] precluding prosecution for violating section 375; and (3) failed to adequately instruct the jury on the meaning of “temporary physical discomfort” in defining tear gas. For the reasons stated here, we will affirm the trial court’s judgment.

A jury convicted defendant Charles Grant of first degree murder (Pen. Code, § 187)[1] and found true an allegation that he personally used a dangerous or deadly weapon in committing the crime (§ 12022, subd. (b)). Defendant admitted a prior serious felony conviction (§§ 667, subd. (a), 1192.7), and the trial court sentenced him to an aggregate term of 31 years to life.
On appeal, defendant contends that (1) the trial court improperly excluded lay opinion testimony; (2) the prosecutor committed misconduct; (3) there was insufficient evidence of burglary to support the felony murder charge; (4) the trial court improperly admitted evidence of defendant’s poverty; (5) the trial court improperly admitted evidence of uncharged crimes to show motive; (6) the trial court improperly excluded evidence of the victim’s boyfriend’s past cocaine addiction; and (7) the cumulative effect of these errors violated defendant’s due process rights. We affirm.

Defendants and appellants appeal from the deficiency judgments the trial court entered after it granted plaintiff and respondent’s motions for summary adjudication on their breach of guaranty claims.[1] In opposing those motions, Defendants did not dispute any of the facts offered to establish the underlying loans, the guaranties Defendants signed, the loan defaults, Defendants’ refusal to pay under the guaranties, or the amounts due and owing after California B&T nonjudicially foreclosed on the real property security for the loans. Instead, Defendants argued their close relationship with the borrowers made Defendants primary obligors on the loans rather than true guarantors, and therefore California’s antideficiency law prevented California B&T from obtaining deficiency judgments against Defendants. In granting the summary adjudication motions, however, the trial court refused to consider Defendants’ “sham guaranty” defense because Defendants failed to allege it as an affirmative defense in their answers.

A jury convicted David Neil Kent of possessing child pornography (Pen. Code, § 311.11, subd. (a); all statutory references are to the Penal Code unless noted), attempting to distribute child pornography (§ 311.2, subd. (c); § 664), and distributing child pornography (§ 311.2 (c)). It also convicted him of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and possessing cocaine (Health & Saf. Code, § 11350). Kent contends there is insufficient evidence to support the convictions, the prosecution failed to disclose exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83 (Brady)), trial counsel rendered ineffective assistance of counsel by failing to investigate and present exculpatory evidence, failing to move to quash a search warrant, and failing to request a pinpoint instruction concerning possession of adult pornography. Finally, he asserts the trial court abused its discretion by failing to reduce the offenses to misdemeanors (§ 17, subd. (b)). For the reasons expressed below, we affirm.

A jury convicted Sandra Marie Jessee of conspiracy to commit murder and special circumstance first degree murder for financial gain, all in connection with the slaying of her husband, Jack Jessee.[1] Sandra was sentenced to life in prison without parole and ordered to pay a total of $521,414 in victim restitution.
Sandra does not contest her conviction or sentence. She merely challenges four of the five restitution orders and the related abstract of judgment. We reverse one of the challenged restitution orders, order the abstract of judgment corrected, and affirm the judgment in all other respects.

After the trial court replaced the jury foreperson during deliberations in a joint trial, the newly-constituted jury convicted Huber Juarez Vasquez and his father, Manuel Hernandez Juarez, of murder for slaying the man who smuggled Vasquez into the country, Victor Camacho. The jury also convicted defendants of attempted murder for wounding Camacho’s associate, Jose Garcia. Defendants contend replacing the juror violated due process and their Sixth Amendment right to a jury trial, while the Attorney General asserts the trial court was justified in replacing the juror because she could not differentiate between first and second degree murder. The record, however, does not support the Attorney General’s contention and does not support as a “demonstrable reality” the juror’s inability to perform her duty. (People v. Williams (2011) 25 Cal.4th 441, 448 (Williams).) The trial court therefore erred in dismissing the juror, and we reverse the judgment.

Jason Brisco appeals from a judgment of conviction for felony possession of marijuana for sale (Health & Saf. Code,[1] § 11359). The judgment was entered upon a guilty plea and pursuant to a plea bargain, the terms of which purported to preserve Brisco’s right to appeal the denial of a pretrial motion concerning jury instructions. Brisco sought to have the jury instructed on affirmative defenses recognized under California’s medical marijuana laws.

Defendant Fidel Sanchez-Elizarraras was charged, by first amended information, with the following crimes against his ex-wife: forcible rape (Pen. Code, § 261, subd. (a)(2)), committed on or about December 13, 2009 (count 1); forcible oral copulation (id., § 288a, subd. (c)(2)), committed on or about December 13, 2009 (count 2); forcible sexual penetration (id., § 289, subd. (a)(1)), committed on or about December 13, 2009 (count 3); forcible oral copulation (id., § 288a, subd. (c)(2)), committed on or about December 10, 2009 (count 4); forcible oral copulation (id., § 288a, subd. (c)(2)), committed on or about December 8, 2009 (count 5); spousal abuse with a prior conviction therefor (id., § 273.5, subds. (a) & (e)), committed on or about December 14, 2009 (count 6); and false imprisonment (id., § 236), committed on or about December 14, 2009 (count 7).

In Kern County Superior Court case No. BF136097B, a jury convicted defendant Joseph Daniel Lout of first degree burglary. (Pen. Code, § 460, subd. (a); count 1.)[1] Following a bifurcated court trial, defendant was found to have suffered a prior conviction under the “Three Strikes” law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and to have served two prior prison terms (§ 667.5, subd. (b)). His request to dismiss his prior strike conviction was denied, and he was sentenced to a total of 15 years in prison, and ordered to pay various fees, fines, and assessments.[2]

Defendants and appellants, E.W. (Mother) and L.W. (Father), appeal from orders terminating their parental rights and placing two children for adoption. (Welf. & Inst. Code, § 366.26.)[1] Mother and Father are the parents of L., a girl born in December 2009. Mother is also the parent of A., a girl born in January 2002.[2] Mother’s appeal concerns both girls, while Father’s appeal concerns only L.
Mother claims the court erroneously refused to assess a maternal aunt, K.W., for placement of the girls in Texas (§ 361.3), and Father joins this claim. Each parent also claims the court further erred in refusing to conduct evidentiary hearings on their section 388 petitions, filed in April and May 2013, seeking the return of one or both girls to their care, in addition to other relief. We find each of these claims without merit and affirm.

Defendant and appellant Jose Elias Garcia, Jr., appeals from a felony judgment of conviction of violating Vehicle Code sections 23152, subdivision (a), and 23152, subdivision (b), claiming an improper “dual use” in calculating his sentence.[1] We disagree, and affirm.

Defendant Luis Luna, Jr. was sentenced to 12 years in prison after a jury found him guilty as charged of violating Penal Code section 288.5, continuous sexual abuse of a child under the age of 14 years. The victim, defendant’s daughter Doe, testified the abuse occurred while she was between the ages of 11 and 14 while she and defendant lived in the same home.
Doe did not disclose the sexual abuse to anyone until she was nearly 15 years old, and when she did she was initially unclear about exactly when and how often the abuse occurred. In order to dispel any misconception the jurors may have had that Doe’s delayed disclosure and other conduct following the alleged molestation was inconsistent with the conduct of a child molestation victim, the prosecution presented expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS).