CA Unpub Decisions

Seventeen-year-old Navnil Chand, his brother, and two friends approached 14-year-old defendant Sarah Weeden and some of her friends and struck up a conversation. Navnil later called Weeden, who arranged to meet him a few days later. Navnil and a friend, 22-year-old Deovinesh Kumar, arrived at the assignation, where they were met by defendant Sirtice Melonson and another man. The men ordered Navnil and Kumar out of the car, and as Kumar opened his door one of the men shot into the vehicle. Navnil was attempting to open his door when multiple shots rang out. Navnil died of gunshot wounds; Kumar lost part of his finger.
An amended information charged Weeden and Melonson with murder, attempted murder, and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 664/211.)[1] Weeden and Melonson were tried jointly before separate juries. Melonson’s jury found him guilty on all counts; Weeden’s jury found her guilty of first degree murder and attempted second degree robbery, but found her not guilty of the attempted murder of Kumar.

Following a review hearing conducted pursuant to Welfare and Institutions Code section 366.22,[1] the juvenile court ordered that a hearing be held on April 8, 2013, pursuant to section 366.26, to develop a permanent plan for the dependent minors Anthony H., Josiah H., and G. H. Their mother, Christal H., petitioned for a writ of mandate to compel the juvenile court to vacate its orders, contending the court did not have before it substantial evidence that she failed to make substantive progress in her case plan or that it would be detrimental to return the children to her care. Review by extraordinary writ is the remedy provided in section 366.26, subdivision (l) and rule 8.452, California Rules of Court. Real party in interest the Los Angeles County Department of Children and Family Services (DCFS) filed an answer to the petition. We deny the petition.

Ronneld Johnson and Jonathan King appeal from the judgment entered after their jury conviction of second degree robbery. Appellants argue the gang allegations were not supported by substantial evidence. We disagree. Additionally, King argues, and we agree, that two prior prison term enhancements should have been stricken rather than stayed. We modify the judgment as to King and, as modified, affirm the judgment as to both appellants.

Jeremy A. Davis appeals from a postjudgment order denying a motion to withdraw his plea (Pen. Code, § 1018) [1] after he pled no contest to oral copulation of an unconscious person (§ 288a, subd. (f)) and was granted probation. The trial court found that the plea was freely, voluntarily and knowingly entered. We affirm.

Appellant Christian L. appeals from the juvenile court’s order placing him on six months probation without wardship (Welf. & Inst. Code, § 725, subd. (a)). Appellant contends the evidence is insufficient to support the finding he committed the misdemeanor offense of throwing a substance at a vehicle. We agree and reverse.[1]

Defendant and appellant Enrique Ismael Saldana (defendant) appeals from his conviction of three counts of attempted murder and three counts of assault with a firearm. He contends that the verdicts were not supported by substantial evidence. Finding no merit to defendant’s contention, we affirm the judgment.

Juan Solis, Sinthia Martinez, and Rudy Lopez operated what purported to be a medical marijuana collective serving some 1,700 members. In defending against various marijuana charges, they invoked the defense provided by the Medical Marijuana Program (MMP)[1] for qualified patients who associate to collectively or cooperatively cultivate medical marijuana. The defense does not apply, however, if the operation does not meet the definition of a "collective or cooperative" and marijuana has been sold for a profit. Here, all of the collective's excess income—purportedly about $80,000 a year—was simply treated by Solis as his personal "salary" without any accountability or disclosure to the collective's membership. Moreover, the collective was not registered as a nonprofit and appellants admitted purchasing marijuana from individuals who were not members of the collective. Because there was no evidence to raise a reasonable doubt whether the collective operated for profit or was otherwise lawful, the MMP defense did not apply.

Defendant Alexis Garcia was retried for the murder of Ricardo Castro (Pen. Code, § 187, subd. (a))[1] after the jury in his first trial deadlocked by a vote of six to six. During his second trial, the jury found defendant guilty of murder during the commission of which he personally and intentionally discharged a firearm, causing great bodily injury and/or death (id., § 12022.53, subd. (d)). The jury further found that he committed the murder for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)). The trial court sentenced defendant to state prison for a total term of 50 years to life.
Defendant appealed, contending among other things that he was denied access to important exculpatory evidence when the trial court denied his Pitchess[2] and Brady[3] motions, and the evidence was insufficient to establish his guilt beyond a reasonable doubt because there were numerous inconsistencies between the principal eyewitnesses’ trial testimony, preliminary hearing testimony and pretrial statements. We concluded the jury was entitled to credit the eyewitnesses’ identification of defendant as the shooter despite the inconsistencies in their statements but the trial court erred in denying his Pitchess motion. We therefore reversed the judgment and remanded the matter to the trial court for the limited purpose of conducting an in camera inspection of police personnel records and, if the files contained discoverable information, affording defendant an opportunity to establish that he was prejudiced by the denial of his motion. (People v. Garcia (Sept. 15, 2008, B197695) [nonpub. opn.].)
On remand, the trial court examined the police records in camera, concluded several complaints found therein against one of the investigating detectives were discoverable, and disclosed the information to defendant. Defendant then moved for new trial based on the newly discovered evidence, contending the complaints against the detective could have been used at trial to impeach his testimony and cast doubt on identifications made by the two eyewitnesses, which would have resulted in a different verdict. The trial court denied the motion and reinstated the judgment.
We conclude the trial court properly denied defendant’s motion for new trial, and therefore affirm.

Appellant Michael A. Karimi appeals from the judgment entered in favor of respondents Kull + Hull LLP (K+H) and Robert F. Kull in an action against Karimi for unpaid legal fees. Karimi, who had filed a cross-complaint for breach of fiduciary duty, legal malpractice, unjust enrichment, and other claims, contends the jury’s favorable finding on the breach of fiduciary duty claim is fatally inconsistent with its unfavorable finding on the legal malpractice cause of action and mandates a new trial. He also contends the trial court’s award of prejudgment interest to K+H was improper. We conclude the findings on the cross-complaint are not inconsistent, but that the award of prejudgment interest must be stricken.

A homeowners association and numerous homeowners (plaintiffs) sued to halt defendant homeowners’ remodeling construction for alleged violations of the subdivision’s declaration of restrictions (declaration or DOR’s). During a court trial, the main issue was whether the declaration, which had a January 1, 2000 expiration date, was properly renewed by a majority of homeowners in 1999. The answer turned on whether the subdivision is a “common interest development” under the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) (Act), such that the majority’s renewal of the declaration was permitted by Civil Code section 1357.[1] The trial court found that because the subdivision is not a common interest development, section 1357 did not apply and the majority’s renewal of the declaration was ineffectual. Because the declaration had expired, the court entered judgment for defendant homeowners, who recovered costs and attorney fees under section 1354.
In this appeal by plaintiffs,[2] we affirm the judgment for defendants, but reverse the award of attorney fees under section 1354. (Mount Olympus Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4th 885, 895-896 (Mount Olympus) [because the Act did not apply, the trial court erred in awarding attorney fees under § 1354].)

Defendant John Levin and Michelle Raymie Longoria (Michelle) were married in January 2007. Defendant was described as sharp witted, funny and intelligent. He was a natural leader and well regarded by his peers, one describing him as a “take charge kind of person,” “a person that would lead the conversation almost always or had a lot to say about whatever you were talking about.” Defendant “was always the life of the party in the sense that the conversation was around him. He told jokes. He was always talking about current events, some project he was working on, some language he was learning, some rescue he had been on with the search and rescue.” He weighed between 145 and 155 pounds.
Defendant was an emergency medical technician and member of the Montrose search and rescue team, a volunteer reserve sheriff’s deputy team that performs rescues in the Angeles National Forest. To get onto the team defendant had attended the reserve sheriff’s academy for six months and participated in mountain rescue training for approximately one year thereafter. Defendant participated in additional rescue training approximately once per month, went out on rescue patrols approximately one weekend per month, and responded to emergency rescue calls as needed. One year, he received the rescue team’s Golden Piton award for responding to the most emergency calls that year. As a team member and reserve sheriff’s deputy, defendant had law enforcement powers, received weapons training, and was issued a badge and handgun. The pay was $1 per year.

A jury found defendant and appellant Tomas Amaya (Amaya) guilty of first degree murder and defendant and appellant Aldo Arevalo (Arevalo) guilty of second degree murder and assault by means of force likely to produce great bodily injury. On appeal, Arevalo raises several challenges to his judgment of conviction, including claims of insufficient evidence, multiple instructional errors, ineffective assistance of counsel, cumulative error, and cruel and unusual punishment. In addition, Amaya, joined by Arevalo, contends that punishment on both the murder count and the weapons enhancement violated California’s multiple conviction rule and federal double jeopardy principles.
We hold that there was sufficient evidence supporting the guilty verdicts on both counts against Arevalo, his claims of instructional error are either unfounded or have been forfeited, and his other contentions are without merit. As for the punishment on both the murder count and the weapons enhancement, we hold that such punishment did not violate the multiple conviction rule and that double jeopardy rules do not apply to multiple punishment within a single case. We therefore affirm the judgments of conviction.

Defendant appeals from a judgment entered on his plea of no contest. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues (People v. Wende (1979) 25 Cal.3d 436), and has noted an area in the record that might arguably support the appeal (Anders v. California (1967) 386 U.S. 738).[1]
Defendant was originally charged by information with violations of attempted murder (Penal Code[2] §§ 187, subd. (a), 664), first degree burglary (§§ 459, 460, subd. (a)), and attempted robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A), 664), with allegations that he personally used deadly weapons (§ 12022, subd. (b)(1)), and that he inflicted great bodily injury (§ 12022.7, subd. (a)). The charges arose from an attempted home invasion robbery, where the victim was beaten with a crowbar and stabbed with a knife. The victim suffered substantial injuries. There were four involved suspects, including defendant. The victim identified defendant as one of the individuals who struck him with a crowbar and stabbed him.[3]

Appellant Ruben Lamar Hands (appellant) appeals from his conviction and resulting sentence to one count of second degree robbery (Pen. Code,[1] § 211). Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel’s declaration states that he notified appellant that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.
To assist this court in its review, pursuant to Anders v. California (1967) 386 U.S. 738, counsel points out as a possible issue whether the trial court erred in denying appellant’s motion to withdraw his guilty plea.