CA Unpub Decisions

Defendant was convicted of five counts of burglary, nine counts of receiving stolen property, and one count of loitering. He contends it was error to convict him of more than one count of receiving stolen property, because all nine counts allegedly occurred on the same date. On the burglary counts, he contends the trial court erroneously gave the jury instructions on aiding and abetting and conspiracy theories, when there was no substantial evidence to support those instructions. Court modify the judgment to reflect only one conviction of receiving stolen property and affirm.

In exchange for sentencing concessions, appellant pled no contest to numerous drug, firearm and theft charges. At the sentencing hearing, defense counsel orally motioned to withdraw appellants pleas. The motion was denied. Thereafter, appellant engaged in repeated colloquies with the court to convince it to allow him to withdraw his pleas; he was not successful. Appellant challenges this ruling as an abuse of discretion. Court are not persuaded and will affirm the judgment.

A.R. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) to her daughter, E.G.[1] Mother contends neither respondent Kings County Human Services Agency (agency) nor the trial court asked her whether the Indian Child Welfare Act (ICWA) might apply in the childs dependency proceeding. Instead, according to mother, the trial court erroneously found ICWA did not apply based on prior findings made in her other childrens dependency proceedings that ICWA did not apply. On review, Court affirm. Mother has misread the appellate record. The agency did inquire of her at the time it detained the child in this case. As she had in her other childrens dependencies, mother denied any Indian heritage. To the extent she challenges the absence of an independent inquiry by the trial court, mother has forfeited her argument and, in any event, cannot establish any resulting prejudice.

In the petition for writ of habeas corpus filed on September 18, 2009, petitioner raises issues regarding his failure to timely file a notice of appeal after this court remanded the matter to Kings County Superior Court in the appeal in case No. F052340. Petitioner claims appointed trial counsel failed to file the notice of appeal as promised on the record from the Marsden hearing that was held pursuant to this courts remand.

A modification decision.

Mario Marquez and Jamie Michael Ortega (collectively, defendants) were convicted of murdering Jeffrey Shaffer, and committing robbery and carjacking. (Marquez was also convicted of felony evading a police officer and being a felon in possession of a firearm.) Marquez appeals from his conviction and sentence; Ortega appeals from his sentence only. We direct the trial court to modify Marquezs sentence, but otherwise affirm the judgments in full.
Marquez argues his convictions must be reversed because the trial court erred by admitting in evidence a letter addressed to Marquez. The letter was found at Ortegas house and used to connect Marquez to the location where part of the crime was committed, thus corroborating the testimony of the prosecutions main witness. We reject Marquezs argument that the prejudicial impact of the letter outweighed its probative value, and further conclude that even if the trial court erred in admitting the letter, any error was harmless.

A modification decision.

After a trial, the jury found defendant Russell Marvin Martinez guilty of second degree murder and attempted premeditated murder and further found true enhancement allegations that in committing those offenses, he personally and intentionally used and discharged a firearm and caused death. On appeal, this court reversed the judgment due to various instructional errors involving the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, provocation and heat of passion, and provocation as it relates to the determination of premeditation and deliberation. (People v. Martinez (July 18, 2005, H025896) [nonpub. opn.].)
After a retrial, the jury again found defendant guilty of second degree murder and attempted premeditated murder and further found the enhancement allegations true. (Pen. Code, 187, 664, 12022.5, subd. (a)(2), 12022.53, subds. (b) & (c).) The court imposed identical, concurrent sentences for the offenses, each comprising a 15-year-to-life term with a consecutive 20-year enhancement term.

In this case, defense counsel hired a psychologist to evaluate defendant and perhaps testify as an expert witness. During discovery, counsel gave a copy of the psychological report to the prosecutor, but, before doing so, he inexplicably failed to redact defendants statements to the psychologist and thus waived the psychotherapist-patient and attorney-client privileges protecting them. Although later at trial, defendant exercised his Fifth Amendment right not to testify, the prosecutor was able to use defendants statements to the psychologist as a sword with which he then struck a fatal blow to the defense against some of the charges. Providing that weapon to the prosecution could not have been a reasonable strategic decision, and, therefore, we conclude that counsel rendered ineffective assistance that undermines our confidence in the jurys verdict.

Defendant Nan Yang appeals a judgment entered following a jury trial during which she was convicted of second degree murder (Pen. Code, 187)[1]; two counts of assault with a deadly weapon ( 245, subd. (a)(1)); threatening to commit a crime resulting in death or great bodily injury ( 422); and battery ( 242). Defendant was sentenced to 26 years to life in state prison. On appeal, defendant asserts the trial court erred by: (1) improperly denying her motion to sever; (2) giving confusing self-defense instructions to the jury, and (3) excluding proposed defense evidence. In addition, with regard to the sanity phase of the trial, defendant argues the trial court erred by: (1) instructing the jury pursuant to section 25.5 that it could not consider evidence of defendants borderline personality disorder as proof that she was legally insane, and (2) excluding proposed defense evidence.

Defendant Thomas Eugene Alcaraz and his brother Ruben were in a car when four men violently attacked them. One of them hit defendant with a broken bottle, and then he and another punched and beat him while the two other assailants beat Ruben. When a police officer arrived, three of the assailants ran off. When the fourth fled, defendant immediately retrieved a gun and shot and killed him. The jury was instructed on murder and voluntary manslaughter under three theories, including heat of passion. Under that theory, the malice required for murder is negated and murder is reduced to manslaughter where the defendant was provoked, he or she acted rashly under the influence of an intense emotion, and the provocation was enough to cause a person of average disposition to act rashly. Here, however, because of instructional error, jurors were erroneously led to believe that the provocation would also have to cause an average person to do what defendant didi.e., shoot and kill someone in front of the police.

A modification decision.

Appellant M. B., father of the minor, appeals from the orders of the juvenile court entered at the six-month review hearing. (Welf. & Inst. Code,[1] 366.21, subd. (e), 395.) He contends the order denying him placement of the minor with appellant must be reversed because there was no substantial evidence that such placement would be detrimental to the minor. Court affirm.

In this disability discrimination case, plaintiff and appellant William Driscoll, a real estate sales person, appeals from a judgment entered on an order granting summary judgment in favor of his former employer, defendant and respondent CB Richard Ellis, Inc. (CBRE), and two of his former supervisors, defendants and respondents Jeffrey Woolson and Mark Read. Driscoll contends he raised triable issues of fact as to whether defendants' stated business reasons for a group of adverse employment decisions were pretexts for disability discrimination.
Like the trial court, Court find the defendants articulated a valid business reason for each employment decision Driscoll challenges and, further, that the record does not contain any facts which would support an inference the stated reasons were mere pretexts for discriminatory conduct. In particular, defendants presented evidence to the effect that Driscoll was not given responsibility for particular client accounts either because of circumstances outside the control of Driscoll's supervisors or because of the expressed preferences of a CBRE client. Defendants presented further evidence that Driscoll's supervisor took responsibility for managing potential government contracts from Driscoll because the supervisor determined a supervisor needed to manage that aspect of CBRE's business.