CA Unpub Decisions

A jury convicted Jose Mario Gonzalez of willful, premeditated, and deliberate attempted murder, assault with a firearm, being an accessory after the fact, and evading a peace officer. The convictions related to two separate shootings. Appellant contends: (1) the trial court abused its discretion in denying his two Marsden motions;[1](2) insufficient evidence supported gang enhancement allegations as to four of the charged counts; (3) the trial court should have bifurcated the proceedings and tried the gang enhancement allegations separately; (4) the trial court erred in denying appellants motions to sever; (5) the trial court committed instructional errors; and (6) the trial court erred in responding to the jurys request that certain trial testimony be reread. Court affirm the judgment.

Plaintiff/Appellant Kerry Clasby, dba California Family Farms, filed suit against Defendants/Respondents Jennifer McColm (McColm), California Certified Farmers Markets, Inc. (CCFM), and Raw Inspiration, Inc. (Raw) (collectively Respondents) after Appellant was excluded from operating stalls at farmers markets owned and operated by Respondents. After twice sustaining demurrers with leave to amend, the trial court sustained demurrers as to every cause of action without leave to amend, dismissed Appellants third amended complaint with prejudice, and entered judgment in favor of Respondents. Court will affirm.

Defendant Asencion Nevarez appeals from the judgment entered following two jury trials in which he was convicted of stalking, vandalism over $400, vandalism under $400, and two counts of criminal threats. Defendant contends the trial court erred by admitting irrelevant and prejudicial gang evidence and denying his Batson motion. Court affirm.

Morgan Phillips, Inc. appeals from the granting of summary judgment entered in favor of defendants JAMS/Endispute, L.L.C., JAMS, Inc. (sometimes referred to collectively as JAMS), and John B. Bates. Because we conclude that Bates conduct in providing dispute resolution services to Morgan Phillips and a third party (as wells as JAMS involvement as Bates sponsoring organization) is shielded by absolute arbitral and/or quasi judicial immunity, Court affirm the judgment.

A jury convicted defendant Derrick Washington of first degree murder (Pen. Code, 187, subd. (a)),[1] and found true allegations that he personally used a firearm ( 12022.53, subds. (b), (c) & (d)) and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)).[2] The trial court sentenced him to a total term of 50 years to life in state prison. He appeals from the judgment of conviction, contending that the trial court erred by: (1) admitting portions of a police interview of his sister, Angela Washington, that were not inconsistent with her trial testimony; (2) refusing to instruct that prior threatening behavior could be considered in connection with self-defense and imperfect self-defense; (3) instructing that gang membership could be considered in judging witness credibility; and (4) giving internally inconsistent instructions on self-defense. Court affirm the judgment.

This is an appeal from an order denying appellant 1211658 Alberta, LTD's third-party claim pursuant to Code of Civil Procedure section 720.210. Court reverse, as Court explain.

Sanaz Kashani appeals from the courts judgment dismissing her complaint against Bunker Hill Tower Condominium Association as a SLAPP suit (Strategic Lawsuit Against Public Participation). Court reverse and remand.

Appellant Joel Tellez was convicted, following a jury trial, of one count of forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2) and three counts of misdemeanor battery in violation of section 242. The misdemeanors were lesser included offenses of the charged offenses of sexual penetration by a foreign object in violation of section 289, forcible rape in violation of section 261 and sodomy by use of force in violation of section 286. The jury found not true the allegation that appellant used a knife in the commission of the offenses. The trial court sentenced appellant to a total term of eight years in state prison. Appellant appeals from the judgment of conviction, contending that the trial court erred in excluding evidence of the victim's ex-husband's drug history, including a drug-related conviction, and in admitting portions of a nurse's report on the sexual assault examination of the victim. Court affirm the judgment of conviction.

Joseph Armienta and Carlos Alfaro appeal from convictions for felony vandalism committed for the benefit of a criminal street gang.[1] They contend the court erred by denying their Wheeler/Batson[2]motions after the prosecutor exercised peremptory challenges against two Hispanic males, and further erred by failing to instruct sua sponte with CALJIC No. 17.00 to inform the jury that they were required to separately determine the guilt of each defendant. Because Armienta and Alfaros Wheeler/Batson motions failed to make a prima facie showing of discriminatory intent the trial court did not err when it denied the motions. With regard to CALJIC No. 17.00, the Attorney General concedes, and we agree, that the court erred in failing to give that instruction but we conclude that the error was harmless. The court imposed a parole revocation fine but should have imposed a probation revocation fine. Accordingly, Court will order that error corrected but otherwise affirm the judgments.

Defendant/Appellant Jose Luis Hernandez was convicted following a jury trial of two counts of premeditated attempted murder (counts 1 and 5; Pen. Code 187, subd. (a), 664, subd. (a)), one count of assault on a peace officer with a semiautomatic firearm (count 2; Pen. Code 245, subd. (d)(2)), two counts of possession of a firearm by a felon (counts 3 and 6; Pen. Code 12021, subd. (a)(1)), and assault with a semiautomatic firearm (count 7; Pen. Code 245, subd. (b)).[1] Appellant was found not guilty of count 8, another charge of assault on a peace officer with a semiautomatic firearm. The jury found true the allegations that Appellant personally used and intentionally discharged a firearm, causing great bodily injury, and that Appellant committed the charges in counts 1, 2, and 3 for the benefit of a criminal street gang. (Pen. Code 186.22, subd. (b),12022.5, subds. (a) & (d), 12022.53, subds. (b), (c) & (d).) The trial court sentenced Appellant to a total of 40 years to life on count 1. On count 5, the court imposed a consecutive sentence of life with the possibility of parole, plus a consecutive term of 25 years to life. The sentences on the remaining counts were either imposed and stayed or imposed and ordered to run concurrently.
Appellant contends that the evidence is insufficient to establish intent to kill and premeditation and deliberation to support his conviction on count 1, premeditated attempted murder. We disagree and will hold that the evidence is sufficient to sustain Appellants conviction. Appellants second contention is that the abstract of judgment must be corrected to conform to the trial courts oral pronouncement of judgment. Respondent agrees that the abstract of judgment must be corrected. Court therefore will direct the clerk of the trial court to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. The judgment will be affirmed.

Defendant and appellant Dexter Cole appeals from the judgment entered after he pleaded guilty to two counts of second degree robbery, two counts of assault with a firearm, possession of a firearm by a felon, and conspiracy to commit robbery. Cole was sentenced to a prison term of 28 years, 8 months. He appeals his sentence, contending punishment on the felon in possession of a firearm count should have been stayed pursuant to Penal Code section 654. Court disagree, and affirm.

In a bifurcated trial, Kenya Hassan Mabson was found not guilty by reason of insanity of two counts of first degree murder. She appeals the order committing her to the Department of Mental Health for a period not exceeding life without the possibility of parole. She contends the evidence was insufficient to support the jurys finding that the murders were willful, deliberate, and premeditated. Court affirm.

Plaintiff Kazuto Takeda appeals from the order vacating his default judgment against defendant Makoto Miyahara. We hold that the trial court acted within its discretion in granting Miyahara equitable relief from the judgment, and affirm.

Christina Davalos appeals from an order revoking probation and ordering her to serve a three year state prison sentence that was imposed and suspended in 2007. Appellant claims that the trial court lost jurisdiction under Penal Code section 1203.2a to sentence her and that the probation revocation is based on hearsay evidence. Court affirm.