CA Unpub Decisions

LeAndre Hebrard appeals from his conviction, following a jury trial, of second degree robbery. He contends (1) the trial court erred in allowing a gang expert to testify about gang members leaving a gang, (2) there was insufficient evidence to support the gang enhancements, and (3) the court erred in sentencing him to separate consecutive terms for the firearm and gang enhancements. Finding no error, we affirm.

Edwin F. appeals from the juvenile court’s order declaring him a ward of the court after finding he obstructed a peace officer in the performance of duties. (Pen. Code, § 148, subd. (a)(1)).[1] The court declared the offense a misdemeanor and ordered Edwin home on probation for six months. Edwin contends the evidence is insufficient to support the finding, and the imposition of two probation conditions was an abuse of discretion.[2] We affirm the disposition order as modified.

A jury found defendant and appellant Crystal Kennedy guilty of aggravated mayhem. She filed an appeal and a petition for writ of habeas corpus.[1] In her appeal, Kennedy contends that character evidence was improperly admitted; that the jury was misinstructed on the law of aggravated mayhem; and that the prosecutor committed misconduct by commenting on her Sixth Amendment right to counsel. In the habeas petition, she claims that her trial counsel was ineffective because he failed to call certain witnesses and failed to object to evidence and statements made by the trial court and the prosecutor. Although the judgment must be modified to correct a sentencing error, we reject all other contentions, deny the petition, and affirm the judgment as modified.

Plaintiff and appellant TSF 53419, LLC (TSF) appeals an order granting the motion for summary judgment of defendant and respondent Fidelity National Title Insurance Company (Fidelity).[1] The gravamen of TSF’s lawsuit is that it is entitled to collect monies due under a promissory note executed by Trimark Pacfic-Valle Di Oro, LLC (Trimark). TSF sued numerous parties, including Trimark and Fidelity, to recover the sum due under the promissory note.
TSF’s only cause of action against Fidelity is for negligence. Fidelity served as the escrow holder and title insurer in the sale of nine condominiums by Trimark to various individuals (Homeowners).[2] TSF alleges that Fidelity negligently transferred title to the condominium units to the Homeowners and funds to Trimark without verifying that Trimark’s debt to TSF was fully paid and obtaining reconveyances of the promissory note and related deed of trust from TSF. We shall conclude that the trial court correctly granted Fidelity’s motion for summary judgment because Fidelity did not owe a duty of care to TSF.

Gilbert Garcia, Jr., appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189)[1], and shooting at an occupied vehicle (§ 246).
The jury found allegations to be true that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that a principal personally and intentionally discharged a firearm (§ 12022.53, subd. (e)). Garcia was sentenced to 25 years to life for the murder plus 25 years to life on the firearm enhancement. Sentences of 15 years to life for shooting at an occupied vehicle offense and 10 years for the gang enhancement were stayed.
Garcia contends there is insufficient evidence to support his convictions, to support the convictions on an aiding and abetting theory, to establish premeditation and deliberation, or to support imposition of a gang enhancement. He also claims instructional error regarding aiding and abetting, prosecutorial misconduct, and error in the denial of his motion to bifurcate trial of the gang enhancement. We affirm.

Defendant Jeffrey Scott Juliar was found guilty by a jury of theft and securities violations. On appeal he contends that the trial court committed prejudicial error by instructing the jury on the doctrine of adoptive admissions. We agree that the evidence cited by respondent to justify the instruction did not fall within the doctrine, because the statements defendant adopted were not offered for their truth but as evidence of false representations made by defendant to his victims. However, we cannot say that the error was prejudicial, since the instruction appears to have been merely superfluous and unlikely to affect the jury’s verdict in any way harmful to defendant. Accordingly, we will affirm.

On retrial after this court reversed a previous conviction, defendant Khoa Khac Long was again found guilty by a jury of two robberies and one rape perpetrated against the same victim on two separate occasions. The sole question on appeal is whether the record contains substantial evidence that the hotel room in which the victim was plying her trade as a prostitute at the time on the earlier of these occasions was “inhabited,” such that the jury could find the robbery to be one of the first degree. (See Pen. Code, § 212.5, subd. (a).)[1] In the first appeal we held the evidence sufficient to sustain such a finding. Here, although the evidence was weaker in some respects, it was stronger in one critical respect: the victim’s testimony that she occasionally slept in the room in question. Based primarily on that testimony we will conclude once again that the evidence was sufficient to sustain a finding that the room was an “inhabited portion” of a building as contemplated by the statute. (§ 212.5, subd. (a).) Accordingly, we will affirm the judgment.

A jury convicted Leonel Vega of first degree murder and active participation in a criminal street gang, and found true allegations he vicariously discharged a firearm causing death, committed murder for the benefit of a criminal street gang, and murdered the victim to further the activities of a criminal street gang.
After denying his new trial motion, the trial court sentenced Vega to life without the possibility of parole for the murder, plus 25 years to life for gun use, and a concurrent two-year term for active participation in a criminal street gang, which the court stayed pursuant to Penal Code section 654.
Vega argues the trial court abused its discretion and violated his state and federal Constitutional rights to due process and to present a defense by excluding the testimony of two defense expert witnesses on the culture of inmate informants. We find no error and affirm the judgment.

Appellant William Doug Fletcher was recommitted to Coalinga State Hospital (CSH) as a mentally disordered offender (MDO) pursuant to Penal Code section 2962[1] for a one-year term, expiring December 14, 2012. He challenges the sufficiency of the evidence to support his commitment as an MDO. The term of commitment under the order appealed from expired on December 14, 2012, thereby rendering it impossible for this court to grant any effectual relief to Fletcher. He does not raise any legal issues that have evaded appellate review; therefore, we exercise our discretion to dismiss this appeal as moot.

Appellant/defendant Jesus Nabarette Anguiano stabbed Benny Gallegos in the back of the head and neck while Gallegos was at a bar and dancing with defendant’s former girlfriend. Gallegos survived the assault. The bar’s security cameras depicted defendant’s conduct immediately before and during the stabbing. At trial, a prosecution expert testified that defendant committed the offense for the benefit of the Norteno gang because he was an active member of the gang, defendant was at the bar with other members of the Norteno gang, Gallegos was a member of a Sureno gang, and the bar’s security videotape depicted defendant and other Nortenos watching Gallegos just before the stabbing.
Defendant testified and admitted that he stabbed Gallegos, but claimed he did not intend to kill him, he was not a member of the Norteno gang, and he did not commit the offense to benefit a gang. Defendant testified that he attacked Gallegos because he was angry that Gallegos was dancing with defendant’s former girlfriend.
After a lengthy jury trial, defendant was convicted of attempted premeditated murder (Pen. Code,[1] §§ 664/187, subd. (a)), with special allegations that he personally used a deadly or dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)); he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); and he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant admitted he suffered prior prison terms. He was sentenced to life with the possibility of parole, with the minimum parole eligibility date set at 15 years pursuant to section 186.22, subdivision (b). The court also imposed consecutive terms of three years for the great bodily injury enhancement, one year for the dangerous weapon enhancement, and one year for the prior prison term enhancement.

Defendant Giovanni Campanella appeals from the trial court’s order finding him in violation of probation after a contested hearing. We affirm.

Defendant and appellant Alexis S. appeals from the order of wardship (Welf. & Inst. Code, § 602) entered as a result of the juvenile court’s findings he committed two counts of forcible rape of a person under the age of 14 years (Pen. Code, § 261, subd. (a)(2)) and one count of attempted forcible rape of a person under the age of 14 years (Pen. Code, §§ 664, 261, subd. (a)(2)), and his admission that he had brought a folding knife with a locking blade onto school grounds (Pen. Code, § 626.10, subd. (a)(1)). The juvenile court ordered Alexis removed from his home and placed in an open facility on the conditions, among others, that he undergo counseling and a 52-week sexual offender program. We affirm.

Petitioner Sergio Raphael Lizarraga pleaded guilty to second degree murder in 1994 and was sentenced to 15 years to life. The Board of Parole Hearings (Board) denied parole in May 2011 but the trial court ordered the Board to vacate its decision and to conduct a new parole hearing. We conclude that the Board’s decision is supported by some evidence (In re Shaputis (2011) 53 Cal.4th 192, 215 (Shaputis)) and therefore set aside the trial court’s decision.

Appellants Nancy S. Covey and Sally Larimore, successor trustees of the Marguerite Elizabeth Kelly 1999 Revocable Trust (trust), appeal a March 23, 2012 order granting the petition of respondent Michael Kranther for reformation of the trust. We find no abuse of discretion, and thus we affirm.