CA Unpub Decisions
California Unpublished Decisions
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In 1994, Penal Code[1] former section 194 provided in pertinent part: “To make a killing either murder or manslaughter, it is requisite that the party die within three years and a day after the strike received or the cause of death administered.†(Stats. 1969, ch. 593, § 1, p. 1225.) The Legislature subsequently amended section 194 and as of January 1, 1997, the statute provides: “To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.†(Stats. 1996, ch. 580, § 1, p. 2653.) We hold this amendment may be applied retroactively to a defendant whose act occurred prior to the amendment if the three years and a day term of the earlier version of the statute did not expire prior to the amendment. (Strong v. Superior Court (2011) 198 Cal.App.4th 1076; People v. Snipe (1972) 25 Cal.App.3d 742.)
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A jury convicted Juan Alberto Castro of one count (count 2) of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664, subd. (a)) (as a lesser included offense of the charged crime of attempted murder), one count (count 3) of shooting at an inhabited dwelling house (id., § 246), and one count (count 4) of assault with a firearm (id., § 245, subd. (a)(2)). The jury found true the allegations under Penal Code section 12022.5, subdivision (a) that Castro personally used a firearm in committing the crimes alleged in counts 2 and 4. The trial court sentenced Castro to a prison term of nine years, four months.
Castro argues (1) the evidence was insufficient to support the conviction for attempted voluntary manslaughter, (2) the trial court erroneously instructed the jury on the required intent for assault with a firearm, and (3) the evidence was insufficient to support the conviction for assault with a firearm. We conclude to the contrary on each argument and therefore affirm. |
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A jury found defendant Derrell Lamar Gaskin guilty of battery resulting in serious bodily injury and assault by means of force likely to cause great bodily injury. The jury also found defendant had inflicted great bodily injury on the victim. The trial court sentenced defendant to 15 years in state prison.
Defendant appeals contending the court should have suspended the proceedings and re-evaluated his mental state based on his trial testimony and the testimony of an expert witness. He also contends the sentence imposed constituted an abuse of the court’s discretion. We disagree with both contentions and affirm the judgment. |
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The Orange County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging Niko P. had committed robbery and receiving stolen property, among other offenses. The court found the allegations true and sentenced Niko P. to time served and probation. Niko P. argues there was insufficient evidence to support the robbery count, claiming that he had abandoned the property and reached a place of temporary safety before any force occurred. We disagree and find substantial evidence to uphold the robbery finding. We do agree that he cannot be convicted of receiving stolen property and robbery of the same property, however, and therefore order the adjudication on that count reversed.
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Daniel Solis appeals, in propria persona, from an order that established his child support arrears and ordered a monthly payment toward those arrears. He contends: (1) the trial court erred in refusing to consider evidence regarding circumstances prior to June 1996; (2) the trial court erred by ordering payment toward the arrears of $77 per month; and (3) the Kings County Department of Child Support Services (Department) did not have authority to send a notice to withhold income directly to the Social Security Administration (SSA) without a court order. We affirm.
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Appellant Howie Malone McClure pled no contest to discharging a firearm in a negligent manner (Pen. Code,[1] § 246.3, subd. (a)), and in a separate case he pled no contest to felony failure to appear (§ 1320.5), agreeing to a total term of two years eight months. After entering his plea, appellant obtained new counsel and moved to withdraw his plea, arguing that he received ineffective assistance of counsel in making his decision to plead to the charges. The trial court heard and denied the motion, ultimately sentencing him to two years eight months as provided for in the plea agreement. Appellant, after receiving a certificate of probable cause, filed timely notices of appeal in both cases. This court granted a motion to consolidate both appeals as they arose from a single plea.
On appeal, appellant contends the trial court erred in denying his motion to withdraw his plea. He argues he was provided ineffective assistance of counsel in making his decision to plead because his counsel failed to fully advise him as to the future consequences of a strike conviction. He further argues his plea was not knowingly and intelligently made. We find appellant’s contentions lack merit and therefore affirm the judgment.[2] |
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Plaintiff Fateen L. Jackson is serving a sentence in state prison. He sued a prison guard and several prison officials after the guard confiscated his CD player/clock radio because it had a metal base that could have been used to make a weapon. The trial court granted defendants’ motion for summary judgment and entered judgment in their favor. Jackson now argues that the court erred in granting summary judgment for several reasons, all related to an alleged inability to complete necessary discovery before the summary judgment motion was heard: Defendants failed to respond to his discovery requests in a manner he considered satisfactory; the court refused to continue the summary judgment hearing to allow Jackson to complete additional discovery; and the court refused to file Jackson’s motion to compel discovery because of formal defects. Jackson also argues that the court erred in denying his motion for reconsideration of the summary judgment motion. Jackson’s contentions are without merit and we will affirm the judgment.
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Here, a local government mistakenly issued building permits in violation of its own ordinance, realized its error and subsequently revoked the permits, but not before the individuals obtaining the permits had relied to their detriment. May those individuals pursue a damage remedy against the local government under a promissory estoppel cause of action? Under the circumstances presented in this case, we hold the answer is no. Yosemite Title, Inc., as trustee of the Lake Don Pedro Revocable Trust, and Seven Legends Ranches, LLC (plaintiffs), applied to defendant Tuolumne County (County) for building permits to erect a gate across the road at the entrance to a housing development. The County initially granted the permits and, in reliance thereon, plaintiffs installed the gate and related infrastructure at considerable expense. Afterwards, the County revoked the permits because the gate was in violation of a County ordinance that prohibited the blocking of easements and rights-of-way. The parties discussed a possible agreement to allow the gate to remain despite the violation, but that option was apparently foreclosed by a subsequent Court of Appeal decision. Ultimately, the County notified plaintiffs that the gate would have to be taken down. When plaintiffs failed to do so, the County had the gate removed. Plaintiffs then sued the County under various legal theories. After several rounds of demurrers and opportunities to amend, plaintiffs’ case ultimately came down to whether the trial court would grant plaintiffs’ motion to amend their complaint to allege a cause of action for promissory estoppel. The trial court denied leave to amend on the ground that the proposed new theory of liability (promissory estoppel) was not fairly reflected in plaintiffs’ government claim.[1] A judgment of dismissal followed. Plaintiffs appeal from that judgment, contending that the trial court abused its discretion when it denied their motion for leave to amend. We reject plaintiffs’ contention because, under the facts of this case, plaintiffs had no viable cause of action against the County for promissory estoppel. Accordingly, the trial court properly denied leave to amend and we affirm the judgment below.
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Defendant and appellant S.T. (Mother) appeals from an order terminating her parental rights with respect to her four children, A., So., Se., and O. The order was made at a hearing held pursuant to Welfare and Institutions Code section 366.26.[1] She contends the court abused its discretion when it found the beneficial parental relationship exception to adoption did not apply. We reject the argument and affirm the court’s orders.
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Defendant Gene William Gladden was caught in possession of copper welding cable that had been stolen two days before from a fencing company that was located nearby.
Defendant was convicted of receiving stolen property. (Pen. Code, § 496, subd. (a).)[1] In a bifurcated proceeding, defendant admitted, after waiving his right to a trial, that he had suffered six prior convictions for which he had served a prior prison term. (§ 667.5, subd. (b).) Defendant’s motion to reduce the current offense to a misdemeanor pursuant to section 17, subdivision (b) (hereinafter, § 17b) was denied. Defendant was sentenced to two years for the offense and one year for each of the six prior prison term enhancements, for a total of eight years in state prison. Defendant contends on appeal as follows: (1) the trial court erred by admitting evidence of a prior conviction of possessing a stolen vehicle, (2) the trial court improperly instructed the jury with CALCRIM No. 376, and (3) the trial court committed prejudicial error by refusing to reduce his offense to a misdemeanor pursuant to section 17b. |
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The San Diego County District Attorney's Office filed a juvenile petition under section 602 of the Welfare and Institutions Code (undesignated statutory references will be to the Welfare and Institutions Code unless otherwise specified) alleging Elizabeth V. made criminal threats on October 29, 2011, and January 9, 2012 (counts 1 & 3, respectively: Pen. Code, § 422; victim: Leticia C.),[1] committed vandalism on October 29, 2011 (count 2: Pen. Code, § 594, subds. (a) & (b)(1); victim: Elena C.) and willfully disobeyed a restraining order on January 9, 2012 (count 4: Pen. Code, § 166, subd. (a)(4)). Following a contested hearing, the juvenile court sustained the petition as to counts 2, 3 and 4. The court dismissed count 1 "due to an insufficiency of the evidence."
At the disposition hearing, the juvenile court declared Elizabeth a ward of the court and ordered that she be placed on probation subject to a variety of conditions, including the four conditions Elizabeth challenges in this appeal, which prohibit her from (1) "ALL ONLINE COMMERCE"; (2) "us[ing] a computer for any purpose other than school related assignments"; (3) "be[ing] in any privately owned vehicle with more than one person under the age of 18 unless accompanied by a parent or legal guardian, or with permission of the Probation Officer"; and (4) "appear[ing] in Court or at any courthouse unless a party or witness in the proceedings, or with permission of the Probation Officer." |
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A jury convicted Jermaine Cook of two counts of causing a concealable weapon to be carried concealed in a vehicle (Pen. Code,[1] § 12025, subd. (a)(3), counts 3 & 4). It found true allegations that he participated in a criminal street gang (§ 12025, subd. (b)(3)), and the Department of Justice did not list Cook as the firearm's registered owner (§ 12025, subd. (b)(6)). The jury acquitted Cook of two charges of carrying a loaded firearm on his person. (§ 12031, subd. (a)(1), counts 1 & 2.) The court sentenced him to two years in state prison on count three, plus eight months on a previous charge that was reinstated because of his conviction in this case. (Health & Saf. Code, § 11350, subd. (a).) The court stayed the sentence on count four under section 654.
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Following a jury trial, defendant Matthew Lucas Frazier was convicted of two counts of criminal threats ( ADDIN BA xc <@st> xl 16 s DOOPTA000001 xpl 1 l "Pen. Code, § 422" Pen. Code, § 422)[1] and two counts of deterring an executive officer ( ADDIN BA xc <@osdv> xl 4 s DOOPTA000020 xpl 1 l "§ 69" § 69). The trial court sustained a strike, a serious felony, and two prior prison term allegations ( ADDIN BA xc <@osdv> xl 47 s DOOPTA000021 xpl 1 l "§§ 1170.15, 667, subd. (a)(1), 667.5, subd. (b)" §§ 1170.12, 667, subd. (a)(1), 667.5, subd. (b)), and sentenced defendant to seven years and eight months in state prison.
On appeal, defendant contends the trial court erred in addressing his ADDIN BA xc <@$cs> xl 8 s DOOPTA000002 Pitchess[2] motion, erred in failing to give a unanimity instruction for one of the counts, and improperly imposed a stayed probation revocation fine. The Attorney General argues that the trial court imposed an unlawful sentence by striking the punishment for one of the criminal threats counts. We shall modify the sentence on one of the criminal threats counts, order a correction to the abstract, and affirm the judgment as modified. |
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Following a trustee’s sale on October 31, 2011, defendants Shawn and Sharon Moradian (the Moradians) took title to the subject real property. Petitioner Brandie Frazier (Frazier) and Noreet Cohen, another tenant, had separate written leases on their rental units. After acquiring title to the property, the Moradians exercised a “self-help†remedy, removing personal property and evicting the tenants.
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