CA Unpub Decisions

Hoa Dihn Tran (appellant) was convicted, following a jury trial, of second degree murder and possession of a firearm by a felon. On appeal, he contends (1) the trial court erred in failing to instruct the jury sua sponte on imperfect self-defense; (2) the trial court’s intoxication instruction was erroneous; (3) the trial court erred in instructing on efforts to suppress evidence; and (4) the errors were cumulatively prejudicial. We shall affirm the judgment.

Plaintiff Mary Musaelian appeals an order awarding attorney fees to defendant Williams Adams based on an attorney fee clause in an arbitration agreement. She contends the trial court improperly awarded fees for the time Adams’s attorney spent representing himself; that Adams is not a prevailing party; that the amount of the award was excessive; and that her husband, Andrew Musaelian,[1] was improperly held jointly and severally liable for the fees. We shall affirm the order.

In this gang-related homicide case, defendants Royale LeBlanc and Jonathan Johnston were tried together in connection with the stabbing death of Carlos Urzua. The jury convicted LeBlanc of first degree murder (Pen. Code,[1] § 187, subd. (a)), second degree robbery (§ 211), and participation in street terrorism (§ 186.22, subd. (a)). The jury also found that LeBlanc committed the murder and robbery for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) As to Johnston, the jury found he was not guilty of robbery, but convicted him of second degree murder and participation in street terrorism. The jury also found that Johnston committed the murder for the benefit of a criminal street gang, and Johnston admitted that he was on bail at the time of the offenses.
On appeal, defendants jointly and individually raise a multitude of errors, including instructional error, wrongful admission of evidence, and cumulative error. We affirm.

Defendant Abraham Guerra appeals from a judgment after a jury convicted him of (1) assaulting Taurus Livingston (Pen. Code,[1] § 245, subd. (a)(2)), while personally using a firearm (§ 12022.5, subd. (a)), (2) discharging a firearm with gross negligence (§ 246.3, subd. (a)), and (3) carrying an unregistered concealed and loaded firearm (former §§ 12025, subds. (a), (b)(6), 12031, subd. (a)(1)[2]). The jury found not true an allegation that defendant personally inflicted great bodily injury on Livingston. After denying defendant’s motion for a new trial, the court sentenced him to state prison for an aggregate term of eight years. On appeal defendant challenges the admission of gang evidence, the court’s instruction on gang evidence, and the prosecutor’s rebuttal remarks during closing argument. We affirm.

On the morning of July 25, 2004, defendants Juan Lorenzo Soto and Francisco Javier Valenciano, Jr., along with Anthony Gonzales, drove from Watsonville to Santa Cruz to commit a robbery. They were armed with a shotgun and a pistol. The liquor store they intended to rob was too busy, so the three men decided to rob a group of men they had seen playing cards in a nearby driveway, with a pile of money on the ground. When Gonzales, armed with the shotgun, and Soto, armed with the pistol, approached the card players and directed them to hand over their money, all but one of them, Rodolfo Escobar, complied. Escobar instead insulted Gonzales, and picked up the money off the ground. As one of his friends implored him to cooperate with the gunmen, Escobar said he had to work hard for his money to support his family, and that if Gonzales wanted his money, he should “ask [his] mama for [it].” Gonzales pressed the shotgun against Escobar’s forehead and pulled the trigger, blowing off the top of his head. Gonzales and Soto collected the money off the ground, went back to the car, where Valenciano had been acting as a lookout, and drove off.
Following a jury trial, Soto and Valenciano[1] were convicted of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1), count 1);[2] first degree murder (§ 187, subd. (a), count 2); second degree robbery of Escobar, Antonio Baires, Jose Edgardo Navarro, Gerardo Navarro and Jose Saul Ayala Baires (§ 211, counts 3-7); and attempted second degree robbery of Francisco Ayala and Manuel Ayala (§§ 664, 211, counts 8 & 9). The jury also found true the allegations that counts 2 through 9 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal personally discharged a firearm causing death as to counts 2 and 3 (§ 12022.53, subds. (d), (e)(1)), and that a principal personally used a firearm in the commission of counts 4 through 9 (id., subds. (b), (e)). Soto and Valenciano were each sentenced to total terms of 84 years to life, consisting of determinate terms of 34 years followed by indeterminate terms of 50 years to life.

Defendant Gabriel Angel Vargas was charged with unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count one), receiving stolen property (Pen. Code § 496d, subd. (d), count two) and street terrorism (Pen. Code § 186.22, subd. (a), count three).
Pursuant to a plea bargain, defendant pleaded guilty to count one. On his guilty plea form, commonly referred to as a Tahl form (see In re Tahl (1969) 1 Cal.3d 122), he offered the following facts: “In Orange County, California, on 4/18/10, I willfully & unlawfully drove and took a 1998 Ford Explorer without consent or permission from the owner with intent to temporarily/permanently deprive the owner of title and possession of the vehicle.”

A jury convicted defendant Jonathan Joseph Garcia of four counts of committing a lewd act upon a child under the age of 14 years in violation of Penal Code section 288, subdivision (a).[1] With respect to each count, the jury also found true an allegation that defendant committed the charged offenses on more than one victim under section 1203.066, subdivision (a)(7). The court sentenced defendant to a 12-year prison term, comprised of the six-year middle term on count 1, and consecutive terms of two years (one-third the middle term) on counts 2 through 4.
Defendant timely filed a notice of appeal, and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court he was unable to find an issue to argue on defendant’s behalf. Defendant was given 30 days to file written argument on his own behalf. Sixty-six days later, defendant submitted a handwritten supplemental letter brief, which was 36 days late. We nevertheless accepted defendant’s brief for filing and we have considered his arguments, which essentially amount to defendant disagreeing with the jury’s view of the evidence. We have examined the entire record and, with the exception of certain minor sentencing issues, have not found an arguable issue. (See People v. Wende (1979) 25 Cal.3d 436.) Accordingly, with certain minor sentencing issues excepted, we affirm the judgment. In doing so, we provide a brief description of the procedural history of the case, the facts as established by evidence at trial, and the punishment imposed upon defendant. (See People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

Sandra B. Masino appeals from the trial court’s judgment denying her breach of contract claim following a bench trial. Entering a defense judgment in favor of Calvin C. S. Yap and his law firm, Oswald & Yap, (collectively, O&Y or the defendants), the trial court excused them from paying the remainder they owed on the purchase of Masino’s business facilitating penny stock sales after she agreed to settle a Securities and Exchange Commission (SEC) fraud prosecution concerning the business. Masino does not dispute the trial court’s finding she defrauded O&Y by failing to reveal the SEC’s investigation at the time she sold them her business, “144 Opinions, Inc.” (hereafter 144 Opinions).
Instead, she quarrels with the outcome of a potential remedy the trial court fashioned on her behalf before the final judgment. Specifically, the business assets Masino transferred to the defendants included the business’s purported goodwill, certain Internet domain names, and Masino’s consulting services to aid the defendants in running the business. The taint of the SEC fraud charges, which Masino settled by agreeing not to operate in the industry for five years, severely compromised or eliminated any goodwill in 144 Opinions or value in Masino’s consulting services to run the business, but the trial court nevertheless proposed to allow her — although it had rejected her complaint to enforce the contract — to rescind the sale and regain the Internet domain names, provided she returned the first $62,500 installment the defendants had paid her for the business. The trial court expressly determined she was not entitled to the second and final $62,500 installment owed by the defendants and that the defendants had not breached the contract by failing to pay her that sum.

Plaintiffs and appellants Friends for Fullerton’s Future and Tony Bushala (collectively, “Plaintiffs”) appeal from a judgment rejecting their challenges to the amended redevelopment plan defendants and respondents City of Fullerton, City Council of the City of Fullerton, and Fullerton Redevelopment Agency (collectively, “City”) adopted. The trial court entered judgment without reaching the merits of Plaintiffs’ claims after it denied their application for relief from their failure to timely serve the Attorney General as required by Health and Safety Code section 33501.3.[1]
Section 33501.3 prohibits a court from granting relief in an action challenging a redevelopment plan unless the party files proof it served its pleading and briefs on the Attorney General within three days of filing those documents with the court. Section 33501.3 allows a court to permit a party to serve the Attorney General after this three-day period, but only upon showing (1) good cause for failing to timely serve the Attorney General and (2) the untimely service will not prejudice the Attorney General’s ability to review and possibly participate in the action.

A jury convicted Jose Daniel Garcia of transporting a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a)), possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1); all further undesignated statutory references are to this code), armed possession of a controlled substance (Health & Saf. Code, § 11370.1), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found Garcia committed the offenses for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)). In a bifurcated proceeding after the verdict, Garcia admitted prior conviction allegations including a strike under the “Three Strikes” law (§§ 667, subds. (d), (e)(1); 1170.12, subds. (b), (c)(1)), a prior serious felony (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)). The trial court imposed a 16-year prison term, including a concurrent sentence for active gang participation.

Martin Esteban Lopez was convicted of various crimes described in more detail in the companion appeal (People v. Lopez (June 26, 2012, F059831) [nonpub. opn.]). He was released from custody at the sentencing hearing because the custody credits he earned exceeded the sentence imposed (Pen. Code, § 1170, subd. (a)(3)) (hereafter section 1170(a)(3)).[1] While Lopez’s appeal from the conviction was pending in this court, the trial court held a hearing and placed Lopez on parole and ordered him to report to the parole office. In addition, it calculated the parole termination date from the date of the hearing.
Lopez appeals, arguing the trial court did not have jurisdiction to place him on parole because of the pending appeal. We conclude that the trial court erred in two respects. First, section 1170(a)(3) mandates that all convicted defendants serve a term of parole when their custody credits exceed the sentence imposed at the sentencing hearing. Therefore, Lopez was on parole after the sentencing hearing, even though the trial court failed to inform him of this fact. Second, the trial court erred in calculating Lopez’s parole termination date since his parole began at the sentencing hearing and not at the later hearing. We will remand the matter to allow the trial court to calculate the correct parole termination date.

A jury convicted Martin Esteban Lopez of violating Penal Code sections 243, subdivision (d) (battery resulting in great bodily injury),[1] 288 subdivision (c)(1) (lewd and lascivious act on a child 14 years of age), and 242 (misdemeanor battery). He contends the convictions must be reversed because (1) his right to a speedy trial was violated, (2) the trial court erred in admitting his statement to the police because it was obtained in violation of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and (3) the trial court erroneously denied his Pitchess motion.[2] We reject each of these arguments.
Lopez also argues his conviction for violating section 242 must be reversed because it was a necessarily included offense to the violation of section 243, subdivision (d), and two fines must be vacated because they were improperly imposed. We agree with Lopez that his section 242 conviction must be reversed and that one fine must be vacated.

A jury found defendant Ernesto Joseph Castellanos guilty of 30 counts of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)[1] The jury found true the allegation that defendant committed lewd or lascivious acts against more than one victim. (Former § 667.61, subd. (e)(5), eff. Sept. 28, 1998.) In a prior opinion, this court vacated defendant’s original sentence and directed the trial court to resentence defendant. (People v. Castellanos (Jan. 25, 2011, E048609) [nonpub. opn.].) At the resentencing hearing, the trial court sentenced defendant to prison for an indeterminate term of 45 years to life. Defendant contends the trial court erred by sentencing him pursuant to the “One Strike” law. (§ 667.61, subd. (b).) We affirm the judgment.

Defendant and appellant Kenneth Lee Duncantell appeals after he was convicted of possessing marijuana inside a prison, and of possessing the marijuana for sale. He contends that the trial court erred in admitting evidence of a prior conviction of possession of marijuana for sale; he argues that the evidence was more prejudicial than probative. Defendant further contends that imposition of a third strike sentence in this case violates federal and state constitutional prohibitions against cruel and unusual punishment. We affirm the judgment.