CA Unpub Decisions

In 2004, appellant Otilio Ruiz was working as a security guard at Los Arcos Nightclub when Jane Doe, his former girlfriend, arrived. Jane Doe had ended the relationship two years earlier, but appellant became angry when he saw her dancing closely with an unknown man that night. Appellant shot both Jane and the man she happened to be dancing with, identified as John Doe. Both victims were wounded in the head but survived. John Doe did not know appellant or Jane; he simply asked her to dance that night and ended up being shot in the head.[1]
Appellant was not arrested for the shootings until 2009. In 2011, after a jury trial, appellant was convicted of counts I and II, attempted murder of Jane and John (Pen. Code,[2] §§ 664, 187, subd. (a)); counts III and IV, assault with a firearm on Jane and John (§ 245, subd. (a)(2)); and count V, corporal injury to the mother of his child, Jane (§ 273.5). The jury found true enhancements as to count I, that appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); as to count II, that appellant personally and intentionally discharged a firearm causing great bodily injury to John (§ 12022.53, subd. (d)); as to counts II and IV, appellant personally inflicted great bodily injury to John (§ 12022.7, subd. (a)); and as to all counts, that appellant personally used a firearm (§ 12022.5, subd. (a)). Appellant was sentenced to 18 years plus 25 years to life.
On appeal, appellant contends there is insufficient evidence to support his conviction in count II for attempted murder of John Doe because he did not know John Doe and he did not intend to kill him. He also contends there is insufficient evidence to support the great bodily injury enhancements as to count II, and argues that John Doe merely suffered a graze wound that did not satisfy the definition of great bodily injury. We will affirm.

A jury found appellant Andrew Jacob Quintero guilty of inflicting corporal injury resulting in a traumatic condition on the mother of his child (Pen. Code,[1] § 273.5, subd. (a); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), assault with a deadly weapon (a knife) (§ 245, subd. (a)(1); count 3), torture (§ 206; count 4), and criminal threats (§ 422; count 5). The jury also found true that appellant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) in the commission of count 1, and personally used a deadly weapon (a knife) (§ 12022, subd. (b)(1)) in the commission of count 5. Appellant admitted that he suffered a prior conviction for fleeing a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), for which he served a prison term within the meaning of section 667.5, subdivision (b). Appellant received an indeterminate term of life in prison with the possibility of parole for the torture offense. The terms for his other offenses and enhancements were either stayed or ordered to run concurrently with the indeterminate life term.
On appeal, appellant contends: (1) the trial court erred by precluding the defense investigator from testifying as an expert on the amount of force necessary to break a rib; and (2) the trial court erred by failing to instruct, sua sponte, on attempted torture as a lesser included offense of torture. We conclude that any error in excluding the expert testimony was harmless because, contrary to appellant’s contention, the proposed testimony did not directly refute or discredit the testimony of the nurse who examined the victim and opined that a lot of force was required to cause the rib injuries she suffered. We further conclude that the court’s failure to instruct on attempted torture was invited error because the record clearly demonstrates that appellant’s defense counsel chose to omit the instruction for tactical reasons. Accordingly, we affirm the judgment.

Defendant Richard Tejeda is serving four years in prison after pleading guilty to inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a).) As discussed below, we affirm the judgment of conviction and the sentence.

Minors C.J., twins P.J. and E.J., and M.J. appeal from the juvenile court’s orders pursuant to Welfare and Institutions Code section 361.5,[1] granting reunification services to their parents, D.J (Mother) and C.W.J. (Father). We affirm.

E.G. (Mother) appeals from an order terminating her parental rights concerning her child, D.G., pursuant to Welfare and Institutions Code section 366.26.[1] She contends the trial court erred in denying her section 388 petition and then failing to apply the beneficial parental relationship exception to adoption. We affirm the order.

In June 2011, defendant and appellant Ignacio Marmolejo Aguirre was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and placed on formal probation for a period of 36 months with various terms and conditions. In August 2011, defendant violated probation by possessing methamphetamine and being under the influence of a controlled substance. On November 8, 2011, after defendant pled guilty to being in possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. RIF1104629, the trial court found defendant to be in violation of his probation in case No. RIF1102360. Defendant was thereafter immediately sentenced to the low term of 16 months in county jail to be served concurrently with case No. RIF1104629.
On appeal, defendant contends (1) the trial court erred in imposing a parole revocation fine pursuant to Penal Code section 1202.45; and (2) the trial court erred in imposing a booking fee in the amount of $414.45 pursuant to Government Code section 29550. We agree that the parole revocation fine must be stricken, but reject defendant’s remaining contention.

A jury found defendant and appellant Hector Barron Martinez guilty of committing a lewd and lascivious act on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)[1] The jury also found true that in the commission of the offense defendant engaged in substantial sexual conduct with the victim. (§ 1203.066, subd. (a)(8).) As a result, defendant was sentenced to a total term of eight years in state prison with credit of four days for time served.
On appeal, defendant contends that the trial court erred in failing to award him presentence custody credits for the time he served for his failure to appear at the original sentencing hearing. We agree and will remand the matter to allow the trial court to recalculate defendant’s custody credits.

Plaintiff Chris Wilcox sued defendant Target Corporation (Target), and its attorneys, Dorsey & Whitney LLP (Dorsey), and Mandana Massoumi (Massoumi) alleging fraud by false promise, and violations of Government Code section 12940, subdivisions (h) (retaliation/discrimination), (j) (harassment), and (k) (failure to take steps necessary to prevent discrimination and harassment), in regard to defendants’ alleged representations in the settlement of a previous lawsuit between Wilcox and Target involving Target’s termination of Wilcox’s employment. Defendants filed a special motion to strike the complaint as a strategic lawsuit against public participation, commonly referred to as an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16.[1] The trial court granted the motion, and judgment was entered in favor of defendants. Wilcox appeals, contending his claims against defendants are not subject to an anti-SLAPP motion. Based on our independent review, we affirm.

Defendant Sanchenglee Misouk appeals from his conviction of second degree murder (Pen. Code,[1] § 187, subd. (a); count 1) and attempted murder (§§ 664, 187, subd. (a); count 2) with associated firearm enhancements (§ 12022.53, subds. (b), (c), & (d).) Defendant contends the trial court erred in instructing the jury with CALCRIM No. 361 and in refusing to instruct the jury on assault with a deadly weapon as a lesser related offense to attempted murder. We find no prejudicial error, and we affirm.

Defendant Edgar Garcia appeals from his conviction of first degree murder (Pen. Code,[1] § 187, subd. (a), count 1) and second degree robbery (§ 211, count 2), with associated enhancements for use of a deadly weapon (§ 12022, subd. (b)(1)). Defendant contends the trial court erred in admitting his confession, because it was the involuntary product of an intentional, two-step interrogation in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). We find no error, and we affirm.

A jury found defendant and appellant Steven Edward Wiggins guilty of two counts of assault with a deadly weapon, to wit, a knife (count 1) and a baseball bat (count 2). (Pen. Code, § 245, subd. (a)(1).)[1] In the commission of both counts, the jury also found true that defendant personally inflicted great bodily injury upon the victims. (§§ 12022.7, subd. (a), 1192.7, subd. (c).) Defendant was sentenced to a total term of five years in state prison with credit for time served. On appeal, defendant contends the trial court abused its discretion in violation of his constitutional right to due process when it sentenced him to prison instead of granting him probation. We reject this contention and affirm the judgment.

A jury found defendant and appellant Francisco Aguirre Garcia guilty of robbery (Pen. Code, § 211)[1] against a person over the age of 65 (§ 667.9, subd. (a)).[2] Defendant subsequently admitted that he had sustained a prior prison term (§ 667.5, subd. (b)), and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of eight years in state prison with credit for time served.
On appeal, defendant contends his conviction must be reversed because the trial court’s failure to conduct an adequate Marsden[3] inquiry in response to his motion for a new trial on grounds of ineffective assistance of counsel was in error and in violation of his constitutional rights to effective assistance of counsel and a fair trial. We agree that the matter must be remanded for further proceedings.

Defendant Thomas Grajeda, Jr., was convicted of two counts, and the jury found true certain enhancing allegations. The court sentenced Grajeda to a total term of 70 years to life. However, on appeal from that judgment, this court in a prior unpublished opinion (People v. Grajeda (Mar. 22, 2011, D058090 [nonpub. opn.] (Grajeda I)) concluded the evidence was insufficient to support the jury's true finding on the gang enhancement appended to one of those counts, and we therefore reversed the true finding on the gang enhancement and remanded the matter for resentencing. On remand, the court sentenced Grajeda to a total term of 50 years to life. In this appeal, Grajeda challenges the new sentence, asserting (1) he was denied due process because he was not present at the sentencing hearing, (2) the court abused its discretion when it refused to dismiss one of his prior strike conviction allegations, (3) it was error to consider his prior strike convictions in sentencing, and (4) the court erred in imposing the restitution fine and calculating custody credits.

This construction defect action arises out of the construction of two homes in Encinitas, California, by defendant Property Management Contractors, Inc. (PMCI). PMCI entered into a contract with plaintiff William Truppi for construction of a house at 560 Neptune and a contract with plaintiff John Quattro for construction of a house at 566 Neptune. Both contracts contained an arbitration provision requiring the resolution of any dispute arising out of the contracts by arbitration.
Quattro subsequently sued PMCI and its principal, William Gregory, alleging construction defects—not on the 566 Neptune home for which he contracted, but on the 560 Neptune house that was contracted for by Truppi. Quattro alleged in his complaint that he was the true contracting party and/or a third party beneficiary of Truppi's contract.
In response to Quattro's lawsuit, PMCI and Gregory filed a petition to compel arbitration. The court denied the petition because neither Quattro nor Gregory were signatories to the 560 Neptune contract that contained the arbitration provision because that contract was between PMCI and Truppi only.
PMCI and Gregory appeal, asserting Quattro is subject to the arbitration provision because (1) he is seeking rights and remedies under the contract and thus is "estopped" to deny that the arbitration provision applies to him, (2) he claims to be a third party beneficiary of the contract, (3) he has a "close relationship" with Truppi who did sign the contract, and (4) Gregory can enforce the agreement even though he did not sign it in his individual capacity. We affirm.