CA Unpub Decisions

Appellant Betty Lou Tomlin pled no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Imposition of the two-year midterm sentence was suspended, and she was placed on probation and ordered to complete a drug treatment program. After the court repeatedly ordered Tomlin to complete various drug treatment programs, it revoked probation and imposed the two-year prison term. Tomlin appealed. Our independent review of the record reveals no arguable issues that would aid Tomlin. We affirm.

Anthony Rodriguez appeals from the judgment entered after a plea of no contest to unlawful firearm activity. (Former Pen. Code, § 12021, subd. (e).)[1] He contends that the trial court erred in denying his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and that the calculation of his presentence conduct credits under former section 4019 violated his right to equal protection of the law. We affirm.

Investors in trust deeds sued the broker who arranged the loans when the loans went into default. The trial court found the broker liable for negligent misrepresentation and breach of fiduciary duty, and awarded damages measured by the benefit of the bargain. The trial court also found the broker violated numerous provisions of the Business and Professions Code, and awarded restitution of commissions and fees.
On appeal, the broker contends the judgment for negligent misrepresentation and breach of fiduciary duty is not supported by substantial evidence. The investors have declined to submit a respondents' brief. We remand for a redetermination of damages. In all other respects we affirm.

Defendant Lam Vi Quan appeals from a judgment of conviction entered after a jury found him guilty of assault on a peace officer (Pen. Code, § 245, subd. (c)), personally causing great bodily injury (id., § 12022.7, subd. (a)). The trial court sentenced him to eight years in state prison.
On appeal, defendant challenges the trial court’s response to a note from one of the jurors indicating that the juror saw defendant make a throat-slitting motion toward one of the prosecution witnesses. Defendant also claims error in the trial court’s refusal to instruct on self-defense/defense of others. We affirm.

Appellant Angel Anthony Hidalgo challenges his conviction for murder (Pen. Code, § 187, subd. (a)).[1] He contends his judgment of conviction must be reversed due to insufficiency of the evidence, instructional error, and sentencing error; in addition, he maintains that the trial court erred in admitting the preliminary hearing testimony of a witness not available at trial. Respondent acknowledges certain defects in appellant’s sentence. Although we reject appellant’s contentions regarding the sufficiency of the evidence, the prejudicial effect of any instructional error, and the admission of the preliminary hearing testimony, we conclude that his sentence contains errors, and modify the judgment to correct them.

Bobby Matters and John Lee Yun appeal their convictions for assault. Matters also appeals his conviction for dissuading a witness. The juries[1] found allegations to be true that (1) Yun’s offenses of assault by means likely to produce great bodily injury, and Matters’s offenses of simple assault and attempt to dissuade a witness were committed for the benefit of, in association with, or at the direction of a criminal street gang.
Matters contends that the trial court erred, and that reversal is required because the court, (1) improperly admitted his statement to the police obtained during a custodial interrogation; (2) failed to instruct sua sponte on the defense of necessity; (3) imposed an unauthorized sentence for his conviction for dissuading a witness; and (4) wrongly concluded it lacked the discretion to strike the Penal Code section 186.22, subdivision (b)(4) allegation.[2] Matters also contends that his trial counsel rendered ineffective assistance of counsel by failing to seek a reduction of his conviction for dissuading a witness to a misdemeanor offense. We will vacate Matters’s sentence for dissuading a witness and remand for resentencing.
Yun, in turn, maintains the trial court committed reversible by (1) failing sua sponte to give accomplice instructions; (2) admitting incendiary photographic evidence; (3) excluding evidence of a hung jury in the trial of defense witnesses. Yun also argues that cumulative errors require reversal and that an enhancement imposed under section 667.5, subdivision (b) must be stricken. We agree only with Yun’s final contention, an error the Attorney General concedes. In all other respects, we affirm.

Respondents R. Bruce and Louise MacKenzie and their neighbors, including appellants Joseph E. and Christy Madden, all have a private road easement incident to the ownership of their respective parcels. To protect against flooding from an adjacent creek and provide privacy to their road, respondents and a group of their neighbors placed a berm, rocks and hedges along the outer edge of the parcel of property owned by appellants, who live on the other side of the creek and reach their residence from a different road. Appellants did not approve of the changes and litigation ensued. Following a three-day bench trial that included a visit to the site, the trial court found the improvements were a proper exercise of respondents' rights and duties under a right-of-way easement and accordingly entered judgment in their favor. Appellants contend the court's ruling is legally and factually erroneous. We affirm.

On June 24, 2010, appellant Spencer Jones was charged by information with the crime of failing to register as a sex offender following an address change (Pen. Code, § 290, subd. (b)) and failing to update registration annually (§ 290.012, subd. (a).)[1]
In May 2010, shortly after his arrest, appellant had been given permission to represent himself in accordance with Faretta v. California (1975) 422 U.S. 806 (Faretta). During his period of self-representation, he demurred and filed a motion to set aside the information under section 995, a motion to dismiss, two writ petitions, and a motion to disqualify a judge. On October 22, 2010, after denying appellant’s motion to disqualify, the court found appellant had been disruptive in the courtroom and deceptive with respect to a ruling received from the Court of Appeal on one of his writ petitions, revoked his pro se status, and appointed an attorney to represent him. As soon as his appointed counsel appeared, appellant requested a Marsden hearing, contending they had a conflict.[2] The court denied the request.
In October 27, 2010, appellant pled nolo contendere to one count of failure to register under section 290, subdivision (b), and was sentenced to three years. He was given credit for time served and placed on probation. During the hearing on the plea and sentence, he made no reference to self-representation or conflicts with his appointed attorney.

Garren Vance Musser appeals the judgment following his conviction for first degree murder. (Pen. Code, §§ 187, subd. (a)/189.)[1] The jury found to be true a special circumstance allegation that the murder was committed while lying in wait (§ 190.2, subd. (a)(15)) and an allegation that Musser personally used a deadly weapon (§ 12022, subd. (b)(1)). Musser was sentenced to life without possibility of parole, plus a consecutive one-year term for the weapon enhancement. He contends that the trial court erred by limiting expert testimony, that the prosecutor committed misconduct, and that there was insufficient evidence to support the lying in wait special circumstance. He also claims that California's death penalty statute is unconstitutional and that his sentence constituted cruel and unusual punishment. We affirm.

Maria Lissette Urena Bucio (Bucio) appeals her convictions for second degree robbery and murder and the resulting 25 year-to-life prison sentence. She argues that the trial court erred in allowing the prosecutor to excuse an African-American juror, in several of its evidentiary rulings, and in instructing the jury regarding accomplices. Because Bucio's challenges do not individually or collectively constitute reversible error, we affirm.

James V. Ward appeals the judgment following his conviction for first degree felony murder while engaged in the commission of sexual penetration (rape by instrument) (Pen. Code, §§ 187, subd. (a), 289),[1] assault on a child causing death
(§ 273ab), and child abuse (§ 273a, subd. (a)). The jury found to be true a special circumstance allegation that the murder was committed during the commission of a rape by instrument. (§§ 190.2, subd. (a)(17)(K), 289.) Ward was sentenced to life without possibility of parole for the murder, plus a consecutive three-year term for child abuse and four-year term for child abuse pursuant to section 12022.95.
Ward contends there was insufficient evidence to support the murder conviction or finding on the special circumstance allegation, and admission of surrogate medical testimony violated his Sixth Amendment right of confrontation. In addition, he contends the trial court erred by admitting evidence of criminal disposition, failing to give a unanimity instruction, and failing to instruct the jury on lesser included offenses to first degree murder. He also claims ineffective assistance of counsel. We affirm.

In 1993, while employed by the Oakland Convention and Visitors Bureau (OCVB1), Athena Pantazis sustained a workplace injury. She was terminated the following year. She obtained a workers’ compensation liability award in 1998 on her complaint for retaliatory termination, and a monetary award in 2003. In the meantime, her employer changed its name to the Oakland Convention and Visitors Authority. A new corporation was formed under the name Oakland Convention and Visitors Bureau (OCVB2) in 1999. Pantazis attempted to satisfy her judgment from the accounts of OCVB2. The Workers’ Compensation Appeals Board (WCAB) concluded that OCVB2 was not the judgment debtor and this court denied a writ petition challenging that decision. Pantazis filed the instant civil action in the superior court in 2011, seeking to hold OCVB2 liable for the debt under different legal theories. The trial court ruled that the principles of res judicata barred the instant action. We agree and affirm.

Fernando A. Collado (appellant) was convicted, following a jury trial, of two misdemeanor counts of violating a restraining order. On appeal, appellant contends the trial court erred and violated his constitutional rights when it refused to engage in de novo review of the validity of the restraining order on which his convictions were based. We shall affirm the judgment.

This case involves crimes by an employer relating to an employee’s death while on the job, and the extent to which benefits paid under a workers’ compensation policy can be used to offset direct victim restitution owed under Penal Code sections 1202.4 and 1203.1.[1] The trial court credited the defendant-employer with death benefits paid by his workers’ compensation carrier to the victim’s family, following the general rule that a defendant is entitled to an offset for any amounts paid to the victim by the defendant’s own insurance company. (People v. Bernal (2002) 101 Cal.App.4th 155, 167-168 (Bernal).) The People appeal, arguing that the employer was not entitled to an offset because he had fraudulently failed to report the victim’s wages to the workers’ compensation carrier, meaning that the victim’s employment was not reflected in the insurance premiums. In light of the defendant-employer’s restitution to the workers’ compensation carrier for that fraud (the subject of a separate criminal count in this proceeding), and in light of trial court’s broad discretion to set an appropriate amount of restitution, we affirm.