CA Unpub Decisions

A jury found defendant and appellant James Che Ming Lu (defendant) guilty of the premeditated, deliberate and willful first degree murder of his wife and the attempted murder of his stepson. Defendant contends on appeal that there was insufficient evidence to support the premeditation finding; that the jury was misinstructed on provocation; and that the trial court abused its discretion when it dismissed a sitting juror. We reject these contentions, but we modify the judgment to correct a sentencing error. We affirm the judgment as modified.

A modification decision.

Michael DeLeon appeals from the judgment entered following his convictions by jury on count 1 – second degree murder (Pen. Code, § 187[1]) with findings a principal personally and intentionally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death (former § 12022.53, subds. (b)-(d) & (e)(1)), and on count 2 – discharge of a firearm with gross negligence (§ 246.3, subd. (a)) with findings appellant committed the above offenses for the benefit of a criminal street gang (former § 186.22, subd. (b)). The court sentenced appellant to prison for 40 years to life. We affirm the judgment.

Steven Rodell Temple, Sr., (appellant) appeals from a judgment entered after he pleaded guilty to carrying a concealed weapon (dirk or dagger) (Pen. Code, § 21310). Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

A modification decision.

Defendant Walter Bell, who admitted to police he was drinking from an open container in public, was arrested and searched. A loaded firearm was found in his pocket. He had prior felony convictions, and he was charged with being a felon in possession of a firearm, in violation of Penal Code section 12021.[1] His motion to suppress was denied, and he was subsequently found guilty as charged by a jury.
On appeal, defendant renews his claim the firearm should have been suppressed because his detention was unduly prolonged and the patsearch was illegal. He also argues the trial court’s refusal to instruct the jury on lawful possession of a firearm by a felon in self-defense was error, and that he is entitled to additional presentence credits under the latest amendment to section 4019. We find that defendant’s detention was not prolonged, and that the police had probable cause to arrest him for drinking in public when they patsearched him. We also find the trial court was not required to give defendant’s requested instruction, given the evidence adduced at trial, and we reject his interpretation of section 4019. Accordingly, we affirm.

A jury convicted Diego Huerta (appellant) as charged in counts 1, 2, and 3 of attempted murder done willfully, deliberately and with premeditation (Pen. Code, §§ 664, 187, subd. (a));[1] in counts 4, 5, and 6 of assault with a deadly weapon (§ 245, subd. (a)(1)); and in counts 9 and 10[2] of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found true the allegations that each offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that appellant was 16 years or older at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally inflicted great bodily injury in counts 3 and 6 (§ 12022.7, subd. (a)), and that he personally used a deadly weapon in count 3 (§ 12022, subd. (b)(1)). The trial court sentenced appellant to a determinate term of four years and an indeterminate term of 49 years to life.
Appellant contends that polygraph evidence was improperly introduced at trial, that the court erred when it instructed on accomplice testimony, that an officer’s statement during a videotaped interview was impermissible opinion evidence, and that the court committed sentencing error. We agree with one of his two claims of sentencing error, but in all other respects affirm.

The minor, Jorge M., admitted aiding and abetting the murder of Jose Barajas for the benefit of or in association with a criminal street gang (Penal Code, §§ 187, 186.22, subd. (b)(1)),[1] and actively participating in a criminal street gang (§ 186.22, subd. (a)). Based on the prosecutor’s description of the factual basis for the minor’s admissions, the juvenile court found that the murder was in the first degree. The court committed the minor to a ranch camp until the requirements of the program have been satisfactorily completed.
On appeal, the minor contends that there is insufficient evidence to support the juvenile court’s finding that a first degree murder was a natural and probable consequence of the assault committed by several of the minor’s fellow gang members on Barajas. We disagree, and will affirm the juvenile court’s commitment order.

A jury convicted Carlos Alberto Huerta (appellant) as charged in counts 1, 2, and 3 of attempted murder done willfully, deliberately and with premeditation (Pen. Code, §§ 664, 187, subd. (a));[1] in counts 4, 5, and 6 of assault with a deadly weapon (§ 245, subd. (a)(1)); in counts 7 and 8 of making a criminal threat (§ 422); and in counts 9 and 10 of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).[2] The jury found true that each offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b) and that appellant was 16 years or older at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally inflicted great bodily injury in counts 1, 2, 4 and 5 (§ 12022.7, subd. (a)), and that he personally used a deadly weapon in counts 1 and 2 (§ 12022, subd. (b)(1)). The trial court sentenced appellant to a determinate term of 14 years and an indeterminate term of 53 years to life.
Appellant contends that the trial court erroneously denied his Wheeler/Batson[3] motions. He also claims sentencing errors: (1) that section 654 bars imposing an enhancement for both use of a deadly weapon and great bodily injury in counts 1 and 2; (2) that the court cannot impose both a great bodily injury and gang enhancement in counts 4 and 5; and (3) that the court erred when it imposed rather than stayed sentence in counts 7 and 8. We agree only that the great bodily injury enhancements attached to counts 4 and 5 must be stricken. In all other respects, we affirm.

On March 2, 2011, a felony complaint charged defendant and appellant Jason Dean Hodge with (1) unlawful driving or taking of a vehicle with a prior conviction for the same under Penal Code section 666.5, subdivision (a) and Vehicle Code section 10851, subdivision (a) (count 1); and (2) receiving stolen property with a prior conviction for unlawful driving or taking of a vehicle under Penal Code sections 666.5, subdivision (a) and 496d, subdivision (a). The complaint also alleged six, one-year priors, under Penal Code section 667.5, subdivision (b).[1]
On March 11, 2011, defendant’s motion to proceed in propria persona was granted.
On May 11, 2011, pursuant to a plea bargain, defendant pled guilty to count 1, unlawful driving or taking of a vehicle with a prior conviction for same; in exchange for a stipulated four-year upper-term sentence in state prison and a dismissal of the remaining charge and enhancements.
On July 25, 2011, defendant filed a motion to withdraw his guilty plea. The trial court heard and denied the motion. On the same date, the trial court sentenced defendant to a four-year term. The court also awarded 302 days of custody credits under section 2033.1 (151 actual and 151 conduct days). The court imposed a $200 fine under section 1202.4, and a $200 fine under section 1202.45 (suspended pending successful completion of parole).
Defendant filed a timely amended notice of appeal challenging both the validity of his plea, as well as his sentence or other matters occurring after the plea. The trial court denied defendant’s request for the issuance of a certificate of probable cause. On December 6, 2011, we granted defendant’s request to augment the record.

The juvenile court terminated the parental rights of defendant and appellant T.P. (Father) regarding his daughter, T.P., pursuant to section 366.26 of the Welfare and Institutions Code.[1] On appeal, Father contends: (1) the court erred by denying his request to change court order under section 388 (388 petition); and (2) he was denied due process because the court terminated his parental rights when he was not an unfit parent. We reject these arguments and affirm.

Plaintiff John Nesson, a radiologist, sued defendant Northern Inyo County Local Hospital District (Hospital) after the medical executive committee (MEC) summarily suspended his medical staff privileges and the Hospital terminated his contract to provide radiology services. Nesson’s complaint seeks damages for breach of contract, retaliation, and discrimination. Nesson appeals from an order and judgment granting the Hospital’s special anti-SLAPP motion to strike. (Code Civ. Proc., § 425.16.)
Nesson contends his claims against the Hospital are not subject to an anti-SLAPP motion. Additionally and in the alternative, he maintains he has established the probable validity of his claims. Based on our independent review, we conclude the trial court properly granted the anti-SLAPP motion.

On October 13, 2010, an information charged defendant and appellant Miguel Joaquin Castillo with making criminal threats under Penal Code[1] section 422. The information also alleged that (1) defendant had three prior convictions and had not remained free of prison custody for five years after serving the prison sentence for the convictions under section 667.5, subdivision (b); (2) one of the prior convictions was a serious felony under section 667, subdivision (a); and (3) the serious felony was a serious and violent felony under sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
Defendant entered pleas of not guilty and denied the prior convictions. On February 4, 2011, a jury found defendant guilty as charged.

Plaintiff and appellant, An Affair With Plants and Flowers, Inc. (An Affair), filed the present action against eight named defendants,[1] including the Truss defendants.[2] The Truss defendants moved for judgment on the pleadings on the ground the complaint failed to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The trial court granted the motion, and An Affair appeals.