CA Unpub Decisions

Daniel Wayne Rose appeals the judgment entered following his conviction by jury of first degree murder with the special circumstance finding that Rose committed the offense while he was an active participant of a criminal street gang to further the activities of the gang. (Pen. Code, 187, subd. (a), 190.2, subd. (a)(22).) The jury also found Rose personally discharged a firearm causing death in the commission of the offense within the meaning of section 12022.53, subdivision (d). The trial court sentenced Rose to life without the possibility of parole, plus 25 years to life in state prison.
Rose raises numerous contentions including the erroneous admission of hearsay evidence and instructional error. Rose also claims the criminal street gang special circumstance fails to provide a meaningful basis for distinguishing persons deserving special circumstance punishment from those who do not. Rose further contends the weapon enhancement under section 12022.53, subdivision (d) violates the multiple conviction rule and double jeopardy principles. Court find no merit in any of these contentions and affirm the judgment.

A modification decision.

Mike Melendez and Oscar Velasquez appeal their convictions by jury of first degree murder (Pen. Code, 187, subd. (a), 189)[1], two counts of premeditated attempted murder ( 664/187, subd. (a)), and two counts of assault with a firearm ( 245, subd. (a)(2)) with special findings that a principal personally used and intentionally discharged a firearm ( 12022.53, subds. (b) & (e); 12022.53, subds. (c) & (e)(1)), proximately causing great bodily injury and death within the meaning of section 12022.53, subdivisions. (d) & (e)(1). The jury found that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)), that Melendez personally used and intentionally discharged a firearm in the commission of the offenses ( 12022.53, subds. (c), (d), & (e)(1)), and that Melendez personally and intentionally discharged a firearm that proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (d) and (e)(1).

This appeal presents the question whether the trial court abused its discretion in not allowing appellant Nicole Gaines (hereinafter referred to as appellant) to move with her now five-year-old child C.O., who has significant medical issues, from Los Angeles to a suburb of Houston, Texas, in order that C.O. remain in proximity to his father, Cheo Oliver (hereinafter referred to as father), who was never married to appellant and who played no role in C.O.s life until C.O. was approximately a year and one-half old. Court find no abuse of discretion and therefore affirm the trial courts ruling.

Defendants Travis Jackson Rapp and David Allen Perysian appeal from the judgments entered following a jury trial in which each defendant was convicted of first degree burglary, first degree robbery, and attempted first degree robbery, with firearm findings, and Perysian was further convicted of willful, deliberate, and premeditated attempted murder, with firearm-use findings. Perysian contends the trial court erred by denying his motion to reopen evidence during arguments and by denying his motion for a new trial. He further contends that his trial attorney rendered ineffective assistance of counsel and the prosecutor engaged in prejudicial misconduct in argument. Rapp contends that the evidence is insufficient to support his conviction as an aider and abettor for attempting to rob one of the victims and that one of two firearm enhancements imposed on a single count must be stayed. We agree with Rapp regarding the enhancement and direct the trial court to issue amended abstracts of judgment with respect to each defendant, but otherwise affirm.

Defendant Ronnie Pickens appeals from the order terminating his probation and imposing a previously suspended 15-year prison sentence. He contends statements made by the trial court presiding over the probation revocation hearing indicate it prejudged the case, thus denying him due process. Court affirm.

Defendant Carol Craig appeals from the judgment entered following her nolo contendere plea to possession of an assault rifle and a police baton. Defendant asks this court to review the sealed portions of a search warrant affidavit to determine whether the trial court erred by denying her motion to unseal, quash, and traverse the warrant and to suppress evidence seized pursuant to the warrant. She further contends that her rights to due process and the effective assistance of counsel were violated by the trial courts refusal to disclose the facts constituting probable cause for the search warrant. Court affirm.

In this dependency matter, Salvador R. (Father) does not challenge many of the dependency courts jurisdictional findings, including a finding that he sexually molested his stepdaughter. Father argues only that the record lacked substantial evidence to support the jurisdictional finding that his son I.R. was at risk of sexual abuse. Court affirm.

Californias version of Megans Law, as amended in 2005, allows certain persons who have been convicted of specified sex crimes, upon successful completion of probation, to apply to have their names and other identifying information excluded from an internet web site maintained by the California Department of Justice (the Department). (Pen. Code, 290.46, subd. (e).)[1] The exclusion is available only to a parent, stepparent, sibling or grandparent of the victim, and only if the crime did not involve oral copulation or penetration. ( 290.46, sub. (e)(2)(C)(i).) In 2006, the Legislature expressly made the amendment retroactive. ( 290.46, subd. (e)(3).)

Plaintiff Full Throttle Films, Inc. (Full Throttle) obtained a writ of attachment and levied on certain deposit accounts of defendant National Mobile Television, Inc. (National Mobile). Third-party claimant Wachovia Capital Finance Corporation (Wachovia Capital) applied for release of the levied property, claiming a superior security interest in the subject deposit accounts. The trial court granted Wachovia Capitals application and quashed the levy. Full Throttle appeals, and Court reverse.

Appellant Herbert Charles Messing Jr. appeals from his conviction of two counts of felony possession of controlled substances. His sole contention is that the trial court erred in finding that the arresting officers had probable cause to search a pouch that was located inside his van and in denying his motion to suppress evidence. Court conclude that the trial court did not err, and Court affirm the judgment.

Defendant Emilio Argueta appeals from the judgment entered following a jury trial in which he was convicted of first degree, special circumstance murder; robbery; and two counts of attempted robbery. Defendant contends the evidence was insufficient to support his two attempted robbery convictions. Court affirm.

Eloy Hughes appeals from a default judgment entered against him after the trial court denied his motion to vacate the default pursuant to Code of Civil Procedure section 473 on the grounds of mistake, inadvertence and excusable neglect. Court reverse.

In this action for damages for fraud in the sale of health insurance, plaintiff and appellant Jerry T. Hopkins appeals from a judgment following the granting of a motion for summary judgment in favor of defendants and respondents The MEGA Life and Health Insurance Company (MEGA), the National Association for the Self-Employed (NASE), and Lisa Bauer (Bauer). Hopkins contends triable issues of fact exist that: Hopkins sustained recoverable damages; defendants made misrepresentations to Hopkins, which Hopkins reasonably relied on and caused him harm; and defendants conduct was outrageous. Finding no merit to the contentions, Court affirm the judgment.