CA Unpub Decisions

A modifcation decision.

A modification decision.

Appellant Joseph Anthony Gutierrez appeals from a judgment entered after a jury convicted him of one count of second degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that he personally used and intentionally discharged a firearm that caused great bodily injury and death (§ 12022.53, subds. (b), (c), and (d)). The trial court sentenced appellant to a term of 40 years to life in prison, consisting of 15 years to life for the murder, plus 25 years to life for the firearm enhancement found true pursuant to section 12022.53, subdivision (d). The enhancements found true within the meaning of subdivisions (b) and (c) were stayed pursuant to section 654. The court awarded appellant 779 days of actual custody credit.
Appellant contends (1) the trial court erred in excluding evidence concerning the state of mind of the deceased, (2) the additional term of 25 years to life imposed under section 12022.53, subdivision (d) constituted double jeopardy, and (3) he is entitled to an additional day of custody credit. We modify the abstract of judgment to reflect an additional day of custody credit, but otherwise affirm the judgment.

Appellant Hong Hung appeals from a judgment entered after a jury convicted him of mayhem (Pen. Code, § 203, count 1)[1] and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2). As to count 2, the jury found to be true the special allegation that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to four years in state prison selecting the midterm on the mayhem conviction. The court imposed the upper term of four years for the assault and stayed the sentence pursuant to section 654. The court struck the punishment for the great bodily injury enhancement (§ 12022.7, subd. (a)).
Appellant contends (1) the trial court erred in excluding evidence that the victim’s friends threatened appellant, (2) the trial court should have, sua sponte, instructed the jury that it could consider evidence of prior threats by the victim and his friends when evaluating the reasonableness of appellant’s claim of self-defense, and (3) cumulative prejudice resulting from the claimed errors requires reversal. Finding no error, we affirm the trial court’s ruling.

A jury convicted defendants, Kevin Dewayne Johnson, Keywon Clarke and George Leon, of three counts of attempted willful, deliberate and premeditated murder. (Pen. Code,[1] §§ 187, subd. (a), 664.) The jury also convicted Mr. Johnson and Mr. Leon of three counts of assault with and personal use of a firearm. (§§ 245, subd. (a)(2), 12022.5, subd. (a).) As to each count, the jury found the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) As to each attempted murder count, the jury found a principal in the offense intentionally discharged a firearm. (§ 12022.53, subds. (d) and (e)(1).) Mr. Clarke and Mr. Leon were juveniles (16 years old at the time of the offenses) who were tried as adults. Each defendant was sentenced to 96 years to life in state prison. We reverse in part, affirm as modified in part, and remand for resentencing.

In this juvenile dependency case, Derrick Y. (father) appeals the juvenile court’s original order denying him presumed father status–an order that has since been modified to recognize his presumed paternity. We shall dismiss the appeal as moot.
In its original order, the juvenile court ruled that father did not meet any of the conditions necessary to establish a legal presumption of paternity, such as acknowledging parentage in a sworn declaration and, thus, was ineligible for family reunification services. (Fam. Code, § 7611.) The court advised the parties that “this determination could change” because the court retained continuing jurisdiction.
Father filed this appeal challenging the court’s order denying presumed paternity status and, shortly thereafter, completed a declaration of paternity and filed a motion in the juvenile court for modification of the order denying presumed paternity.[1] The juvenile court granted the modification motion, bestowed presumed paternity status, and ordered family reunification services for father.

Plaintiff Bingyi Wang was employed on an irregular basis as a security guard by defendant A1 Protective Services, Inc. (A1). Following his termination from employment, Wang filed a claim with the Labor Commissioner for unpaid wages and waiting time penalties. After the hearing officer rejected his contentions, Wang filed for review with the superior court. Following a trial de novo, the trial judge reached the same conclusions as the hearing officer and entered judgment for A1. We affirm.

Saria Nadeem sued KPMG LLP for damages for harassment, discrimination, and retaliation arising out of her ten-month tenure as a KPMG employee. Nadeem was originally represented by counsel, but proceeded in a jury trial in propria persona. The jury returned a verdict in favor of KPMG. Nadeem challenges the judgment on numerous grounds, alleging evidentiary errors, potential jury irregularities, misconduct of defense counsel, and judicial bias. Her arguments lack merit and we affirm.

This appeal challenges a preliminary injunction requiring appellants, an immigration lawyer and law firm, to provide notice to certain clients that another lawyer who had been employed by the firm had resigned from the bar with disciplinary charges pending and was not authorized to practice law. Appellants contend the injunction should not have been granted because the statutes and rules they were alleged to have violated do not apply to them; the required notice was inaccurate and would cause harm to them and their clients; they were precluded from presenting evidence in their defense by their obligation not to violate attorney-client privilege and their clients’ rights to privacy; and the events underlying the allegations against them were no longer occurring and unlikely to occur in the future. We will affirm.

Steve C. Thompson (Thompson) appeals the trial court’s computation of damages, following a jury verdict holding him and his architecture firm partially liable to the Stephen Mayo and Sharon Mayo (the Mayos) for architectural malpractice related to the renovation of the Mayos’ home. Thompson contends the nonmonetary portions of the Mayos’ prior settlements with other defendants must be credited to the amount of damages for which he is liable.[1] We shall affirm the judgment.

Appellant Leno Bustillos was convicted of first degree robbery and making criminal threats. The trial court sentenced him to a total of 81 years to life. Appellant contends that the trial court should have stayed the consecutive sentence for count 2 and granted appellant’s Romero[1] motion. We affirm.

Enrique De Jesus Resendez appeals from the judgment entered following his conviction by jury of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[1] The jury also found true an allegation that appellant personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) Appellant admitted two section 667.5, subdivision (b) prior prison term allegations. After striking one of appellant's prior felony convictions and the attendant prior prison term allegation, the trial court sentenced him to state prison for seven years (a three-year middle term for the assault; a three-year great bodily injury enhancement; and a one-year section 667.5, subdivision (b) enhancement).
On September 1, 2010, appellant asked victim Carlos Barahona to come outside and speak with him. Barahona did so. As he turned away to shut the door, appellant hit the right side of Barahona's head with a closed fist. During the ensuing struggle, appellant hit Barahona at least two more times. Barahona lost consciousness briefly, and suffered severe head injuries that required medical treatment and caused residual pain.

The juvenile court sustained a petition alleging that appellant Junior R. possessed a firearm in a school zone in violation of Penal Code[1] section 626.9, subdivision (b) and was a minor in possession of a concealed firearm in violation of section 12101, subdivision (a)(1). The court declared the offenses to be felonies, found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and ordered appellant to suitable placement.
Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that there is insufficient evidence to support the juvenile court's finding that he possessed a firearm in a school zone. Appellant further contends that the juvenile court should have found that the section 626.9 violation was a misdemeanor and that counts 1 and 2 merged under section 654. Appellant also contends, and respondent agrees, that appellant is entitled to two additional days of predisposition credit. We affirm the juvenile court's orders, but remand this matter for a determination of appellant's maximum period of confinement. On remand, the court is instructed to correct appellant's predisposition credit to reflect 27 days of predisposition credit.

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William Jonathan Mailoto appeals from the judgment entered upon his conviction by jury of two counts of felony child abuse (Pen. Code, § 273a, subd. (a)).[1] On count 1, the jury found to be true that appellant personally inflicted great bodily injury on a child under the age of five (§ 12022.7, subd. (b)). The court sentenced appellant to prison for 10 years and four months, imposing the midterm of four years on count 1, plus a consecutive midterm of five years for the great bodily injury enhancement and one-third of the midterm, or 16 months, on count 2.
Appellant contends: (1) that one count of child abuse should be vacated because count 1 which was alleged to have occurred on or about December 13, 2008 was subsumed by count 2 which was alleged to have occurred on or between November 12, 2008 and December 15, 2008; (2) the trial court erred in failing to stay his sentence on one count pursuant to section 654; and (3) the court erred by failing to instruct the jury sua sponte with the unanimity instruction on count 2.
We affirm.