CA Unpub Decisions

Thomas Dixon entered a negotiated guilty plea to voluntary manslaughter (Pen. Code,[1] § 192, subd. (a)) with personal knife use (§ 12022, subd. (b)(1)) and admitted a serious felony prior conviction (§ 667, subd. (a)(1)), a strike (§ 667, subds. (b)-(i)) and six prior prison terms (§ 667.5, subd. (b)). The court dismissed one of the prison priors and sentenced Dixon to 33 years in prison: 22 years (twice the upper term) for voluntary manslaughter, one year for knife use, five years for the serious felony prior and one year each for the remaining prison priors. Dixon appeals. We affirm.

A jury found Matthew Thomas Queen guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189).[1] The jury also found that Queen personally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivision (d). The trial court sentenced Queen to an aggregate term of 40 years to life in prison in this case.[2]
On appeal, Queen claims that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), based on a theory of sudden quarrel or heat of passion. We reject this claim because the record lacks substantial evidence of provocation, which is necessary to support the giving of this instruction. Queen also claims that his trial counsel provided ineffective assistance by making a damaging concession during closing argument. We reject this claim because trial counsel's argument reflected a reasonable tactical strategy rather than ineffective assistance. Finally, Queen contends that he is entitled to an additional day of presentence custody credit. We agree with this contention, and affirm the judgment as modified to reflect the additional day of presentence custody credit.

A modification decision.

A modification decision.

In this appeal, defendant contends that the trial court erred in staying, rather than striking, two one-year prior prison term enhancements. (Pen. Code, § 667.5, subd. (b); unspecified section references that follow are to the Penal Code.) The People concede the error and we agree that the judgment must be modified.
Facts and Proceedings
Defendant drove a friend's truck on several occasions without permission. Defendant entered a plea of no contest to two counts of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and also admitted two strike allegations (Pen. Code, § 1170.12) and six prior prison term allegations (Pen. Code, § 667.5, subd. (b)).
The trial court dismissed one of the strikes pursuant to section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, stayed two of the prior prison terms, and sentenced defendant to an aggregate prison term of eight years. This appeal followed.

A jury convicted defendants Kelvin Eduardo Martinez (Martinez) and Valentino Antonio Andrade (Andrade) of residential burglary, and also convicted Martinez of misdemeanor vandalism. (Pen. Code,[1] §§ 459, 594, subds. (a), (b)(2)(A).) The trial court sustained allegations Martinez had a prior serious felony conviction which also qualified as a strike. (§§ 667, subds. (a), (b)-(i), 1170.12.) The trial court sentenced Martinez to 13 years in state prison, and sentenced Andrade to two years in state prison, and each defendant timely appealed.
Martinez raises overlapping claims arising from the midtrial disclosure of a police report about the vandalism. He claims the report's late disclosure constituted a statutory discovery violation, a due process or Brady[2] violation, and prosecutorial misconduct. Andrade joins in Martinez's contentions and further claims the trial court erred in denying his motion for severance and refusing to grant him probation at sentencing. We shall affirm.

For a little more than a year, appellant Bryan Stull delivered pharmaceuticals and medical supplies for respondent PharMerica Corporation (PharMerica). For the deliveries, PharMerica required Stull to wear a blue polo shirt and khaki pants or shorts, begin his routes at a specific time and location, complete deliveries without detours or breaks, and promptly return invoices and undelivered pharmaceuticals to PharMerica's pharmacy. Asserting that PharMerica exercised complete control over his deliveries, Stull filed suit claiming
that he was PharMerica's employee and had been denied the benefits and protections for employees provided by the Labor Code. The trial court entered judgment for defendants based on its conclusion that Stull was an independent contractor.
On appeal, Stull argues that the trial court erred in finding him to have been an independent contractor to PharMerica. (ARB 2) We shall reject his contention that the â€

Convicted by a jury of two counts of felony resisting an officer by threats or force (Pen. Code, § 69)[1] and three counts of misdemeanor resisting an officer (§ 148, subd. (a)(1)), defendant Tracy Justin Cooke contends on appeal the misdemeanor convictions represent lesser-included offenses of his felony convictions, and must be dismissed. The People agree, and so do we.

A jury convicted defendant James Evan Neblung of committing continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5, subd. (a).)[1] The trial court sentenced defendant to six years in state prison.
On appeal, defendant contends the trial court erred in modifying CALCRIM No. 1120, which defines acts of substantial sexual conduct upon which a conviction of continuous sexual abuse may be based. Specifically, defendant argues that the trial court misinstructed that masturbation constitutes substantial sexual conduct if it involves any touching of the victim's or perpetrator's genitals â€

After officers observed defendant Robert John Robyn driving with two tires on the sidewalk and two tires on the road, they requested identification. Subsequent events revealed drug paraphernalia, marijuana, and methamphetamine in the car defendant was driving. An information charged him with possession of methamphetamine and marijuana. Defendant requested dismissal of the case pursuant to California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta), which the court denied. A jury found defendant guilty as charged. Sentenced to four years eight months in prison, defendant appeals, contending the court erred in denying his Trombetta motions and ineffective assistance of counsel. We shall affirm the judgment.

A modification decision.

Case Pacific Company (Case), a subcontractor, appeals from the judgment entered in favor of the general contractor and its surety (Shasta Constructors, Inc., and Travelers Casualty & Surety Company [collectively â€

After the death of his one-month-old son, defendant Clifton Jones was charged with murder and assault on a child under the age of eight resulting in death. (Pen. Code, §§ 187, subd. (a), 273ab.)[1] A jury acquitted defendant of murder but convicted him of involuntary manslaughter, a lesser offense. (§ 192, subd. (b).) The jury deadlocked on the child abuse homicide charge, and a second jury convicted defendant on that count. Sentenced to 25 years to life, defendant appeals, contending (1) section 1023 prohibited retrial on the child abuse homicide count, (2) counsel performed ineffectively in failing to assert section 1023, (3) instructional error, (4) prosecutorial and judicial misconduct, (5) counsel performed ineffectively in failing to assert attorney-client and work product privileges, (6) sentencing error, and (7) his sentence constitutes cruel and unusual punishment. We shall remand for a consideration of the restitution fines and direct the trial court to strike fees not imposed at sentencing. In all other respects, we shall affirm the judgment.

Defendant Rudolph Ellis (Ellis) was convicted of the first degree murders of Joseph Cannon and Larry Harris (Pen. Code, § 187, subd. (a)), and the jury found true the allegations he personally used a firearm in the commission of the murders (id., § 12022.53, subd. (d)). The jury also convicted him of assault with a firearm on Edward Goldsmith and S.H. (id., § 245, subd. (a)(2)) and found true the allegations he personally used a firearm in the commission of the assaults (id., § 12022.5, subd. (a)). The jury found true the allegations that all the crimes were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(4)). The trial court sentenced him to a determinate state prison term of 20 years and 8 months, plus a consecutive indeterminate term of 120 years to life, for a total term of 140 years and 8 months to life.