CA Unpub Decisions

On April 15, 2009, the trial court sentenced appellant to consecutive sentences of 15 years to life on counts 1 and 2. The court sentenced appellant consecutively to the midterm of six years on count 3 and to consecutive terms of two years on counts 4 and 5. Appellants total sentence is 40 years to life. The court imposed a restitution fine and granted applicable custody credits. Appellants appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Court will affirm the judgment.

In February 2009, an information was filed in this case charging appellant Jose Bonifacio Ruiz and eight codefendants with numerous crimes; appellant was charged with nine offenses. In March 2009, appellant accepted a negotiated plea agreement. He pled no contest to one count of conspiracy to receive stolen property and one count of forgery; he admitted these offenses were committed to benefit a street gang. (Pen. Code, 182, subd. (a)(1); 475, subd. (c); 186.22, subd. (b)(1)(a).) Both of the offenses were committed in May 2008. The remaining counts against appellant were dismissed. In April 2009, appellant was sentenced in this case to three years and four months imprisonment. In addition to other financial costs, he was ordered to pay a $60 assessment ($30 for each offense) pursuant to Government Code section 70373, subdivision (a)(1), which became effective on January 1, 2009 (hereafter, the assessment).

Petitioner has a long history of using phencyclidine (PCP) to the detriment of her children. In 2000, police had to force their way into petitioners home to help her then 13-year-old son and his girlfriend who had overdosed on PCP. While they were lying motionless and struggling to breath, petitioner refused to let the police in the home and blocked their efforts to enter by a window. It was only when the police brought a fire truck to cut through the metal screen door that petitioner finally opened the door. Petitioners daughters, then seven-year-old A.B. and four-year-old J.B., witnessed the entire event.

Samuel Moses Nelson appeals from his murder and burglary convictions. He argues the incriminating oral and written statements he made during an interview regarding these crimes were obtained in violation of his Fifth Amendment rights as defined in Miranda v.Arizona (1966) 384 U.S. 436 (Miranda). He also requests this court review the proceedings relevant to his Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) After reviewing the record, Court find no abuse of discretion with respect to the Pitchess motion. However, Court conclude Nelsons Miranda rights were violated when, after being accused of murder, Nelson requested to speak with his mother to let her know what was happening and he explained he wanted to talk to her about it [and] see what [he] should do. The United States Supreme Court (Fare v. Michael C. (1979) 442 U.S. 707 (Fare)) and more recently the California Supreme Court (People v. Lessie (2010) 47 Cal.4th 1152 (Lessie)), have held a totality-of-the-circumstances test is to be applied in cases involving juveniles. Nelsons parental requests, when viewed in context, compel exclusion of his subsequent confession. Accordingly, the murder conviction and two burglary convictions must be reversed. However, Court affirm the three burglary convictions relating to Jane Thompson because Nelson confessed to those crimes before he invoked his Fifth Amendment rights. In sum, the judgment is affirmed in part and reversed in part.

In this scope of insurance coverage case, defendant Vinci Investment Company, Inc. (Vinci), which did business as Honda Santa Ana, appeals from a judgment in favor of plaintiff Mid-Century Insurance Company, wherein the court found Mid-Century had no duty to defend or indemnify Vinci in the underlying lawsuit brought by Santa Ana Federal Credit Union (the credit union) against Vinci. The credit unions lawsuit involved its purchase from Vinci of installment sale contracts for vehicles sold by Vinci to retail customers. On appeal Vinci contends the court erred by (1) ruling the insurance policy did not cover the credit unions claims against Vinci and that Mid-Century had no duty to defend Vinci against those claims, and (2) granting summary adjudication and judgment on the pleadings in Mid-Centurys favor on Vincis bad faith claim in its cross-complaint against Mid-Century. Court reverse the judgment on the scope of the insurance coverage because the truth in lending errors and omissions liability endorsement and the title errors and omissions liability endorsement potentially covered some of the credit unions claims against Vinci. Court also reverse the courts summary resolution of Vincis bad faith claim against Mid-Century and therefore remand the case to the trial court for further proceedings.

Defendant claims the trial court erred when it instructed the jury with CALCRIM Nos. 521 and 3450. Court affirm.

Plaintiff Generation III Investments, LLC (Generation), appeals from an order awarding attorney fees to defendant R&R Corporation in an unlawful detainer action. The action was one of three filed by Generation concerning property it owned and leased to defendant. Prior to trial in the lead case, Generation sold all of the properties at issue to 858, LLC, which was added by stipulation as a plaintiff in all three cases.
Defendant prevailed in the unlawful detainer action and judgment was entered in favor of defendant and against both Generation and 858, LLC. On defendants motion, the trial court awarded it over $46,000 in attorney fees jointly and severally against both plaintiffs Generation . . . and 858, LLC. (Capitalization omitted.) Generation contends this was an abuse of discretion. Court disagree.

Shalisha Wiggins and defendant had a relationship for two years, and in 1988, Wiggins gave birth to their daughter W. Defendant and Wiggins separated when W. was two years old. Over the next 17 years, Wiggins saw defendant only when he came to pick up W. During that time, Wiggins had three more childrenR., S., and T. By May 2005, Wiggins, 19-year-old W., 17-year-old R., 15-year-old S., and 11-year-old T. were living in an apartment on Renaissance Drive in San Jose along with Wigginss boyfriend, Richard Garza, who was not supposed to be living there. Wiggins and Garza used methamphetamines. The familys finances were strained, and Wiggins received welfare and some money from her grandmother. Garza was unemployed and contributed nothing. The family was also the subject of a pending dependency case. Peggy Cathcart, their social worker, regularly visited Wigginss apartment from August 2004 to June 2005, frequently spoke to Wiggins on the phone, and counseled her. She also monitored the childrens safety and performance at school. Cathcart never met Garza, and until May 2005, no one had informed her that he was living in the apartment.

On remand, defendant Blancarte was tried separately on charges of attempted premeditated murder and assault with a firearm with allegations that he personally used a firearm and personally and intentionally discharged it causing great bodily injury. The jury found him guilty of aggravated assault and found that he personally used a firearm but deadlocked on the murder charge, and the court declared a mistrial on that charge and related enhancements. The court imposed a four-year upper term for the assault and a 10-year enhancement for personally using a firearm.
On appeal from the judgment, Blancarte claims the prosecutor was guilty of misconduct in eliciting from a witness an improper opinion concerning Blancartes credibility and commenting on his failure to testify at trial.
Court affirm the judgment.

Defendant Rosario Arreola Lopez was involved in a two-car collision that resulted in the death of the driver of the other car, Adam Haney, and serious injury to Haneys passenger. In August 2008, defendant pleaded no contest to driving under the influence or alcohol or drugs resulting in injury, and she admitted the allegation that she inflicted great bodily injury. The court sentenced defendant to a total of five years in state prison. In addition, it ordered defendant to pay restitution to the two victims, Haneys widow, Kara Haney, and the passenger, pursuant to section 1202.4, subdivision (f) of the Penal Code. The amount of restitution ordered to Kara was $58,643.35.
efendant on appeal challenges the restitution order in favor of Kara on two essential grounds. First, she argues that the court abused its discretion in awarding $26,640 in attorney fees because, in awarding the fees that Kara claimed she incurred in pursuing a civil settlement against defendant for her economic losses, the court failed to apply the standard that only attorney fees reasonably incurred by the victim are recoverable in a restitution award under section 1202.4, subdivision (f). Second, defendant contends that the court erred by failing to grant a setoff in the amount of $15,000 from the restitution award, that figure representing the civil settlement paid to Kara by the insurer for defendants father.

Appellant was the driver in a drive-by shooting that resulted in the death of one of the victims. The issue at trial was whether appellant, who did not shoot, had the requisite knowledge and intent to be convicted of first degree murder. The jury found that he did.

On appeal, appellant challenges the introduction into evidence of his pretrial statements to police that were made before he received Miranda warnings, at a time when police considered appellant only to be a witness and not a suspect. Appellant also challenges the admission of statements he made, both before and after he received Miranda warnings, that were not tape-recorded, and were introduced by way of the interviewing officers recollection, as prompted by his handwritten contemporaneous notes. We reject appellants claim of inadmissibility as to both categories of statements.

Appellant also challenges the adequacy of the jury instructions with respect to his unrecorded statements, and with respect to his intent to kill. Finally, he contends that his sentence of life in prison without parole is unconstitutional because his passengers, who were the actual shooters, received lesser sentences. We reject all of these additional contentions as well, and affirm appellants conviction and sentence.

A jury convicted defendant of 22 counts in connection with attacks on five women over a period of nearly 11 years, and he was sentenced to multiple life terms, and a separate aggregate determinate term, in state prison. On appeal, he claims instructional error and also argues that substantial evidence does not support four of his convictions. Court reject his arguments and affirm the judgment.

Appellant Robert Nathaniel Bracy appeals from his conviction for attempted second degree robbery (Pen. Code, 664/211) following a jury trial. He contends the trial court prejudicially erred in not instructing the jury sua sponte on the lesser included offenses of battery and assault, in violation of his due process rights under the Fourteenth Amendment of the federal Constitution.
Court reject his contention and affirm.

Defendant Gustavo Sanchez Perez was charged by complaint with possession of marijuana for sale, and other offenses stemming from a search of his residence pursuant to a warrant supported in part by a sealed affidavit. Before his preliminary hearing, defendant moved unsuccessfully under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) to unseal the search warrant affidavit, quash the warrant, and suppress the evidence seized from his residence. Defendant waived a preliminary hearing and was charged by information with the same offenses. To preserve his right to postconviction appellate review of the searchs validity, defendant renewed his motion to quash and suppress evidence in the superior court. The court summarily denied the motion, believing it was bound by the pre-information ruling concerning the affidavit. Defendant thereafter pleaded guilty to the possession-for-sale count as part of a negotiated disposition, and filed this appeal requesting that conduct an independent review of the sealed material to determine under Hobbs whether he is entitled to withdraw his plea and further litigate the sufficiency of the warrant. Having done so, Court affirm the judgment.