CA Unpub Decisions

Defendant Romesh Chander Kanda appeals from a judgment entered after a jury convicted him of second degree murder and assault with a firearm and further found that he personally used a handgun during the commission of both offenses. (Pen. Code, 187, 245, subd. (a)(2), 12022.5, subd. (a).) On appeal, he claims the court gave erroneous instructions on how to determine the sufficiency of provocation for the purpose of voluntary manslaughter under a heat of passion theory. He also claims the prosecutor was guilty of misconduct in arguing an erroneous standard for determining the sufficiency of provocation. Court find instructional error that compels reversal of the murder conviction.

Defendant Salinder Singh was convicted after jury trial of one count of second degree robbery and one count of attempted second degree robbery (Pen. Code, 211, 212.5, subd. (c), 664).[1] The trial court found that defendant had a prior serious felony conviction that also qualified as a strike ( 667, subds. (a) & (b)-(i), 1170.12), and that he had served a resulting prior prison term ( 667.5, subd. (b)). Defendant filed a Romero motion, but the court denied the motion and sentenced defendant to 11 years in prison.

Defendant Stanhope Howard Miller admitted to police that he had fondled his developmentally delayed granddaughter on a number of occasions. After the trial court denied a motion to exclude his statements, defendant waived his right to a jury trial and the matter was submitted to the court on documents and argument of counsel.
Defendant appeals from a judgment entered after the trial court found him guilty of two counts of committing a lewd act upon Jane Doe. (Pen. Code, 288, subd. (a).) The court also found true the allegations that he was a habitual sex offender (Pen. Code, 667.71), that he had previously been convicted in 1972 of a violation of Penal Code section 288, subdivision (c) and that he had one strike prior. (Pen. Code, 667.61, subds. (a) & (d), 667, subds. (b)-(i).) The trial court sentenced defendant to 50 years in prison. This appeal ensued.

A jury convicted defendant Tashna Simone Rabalais of taking or driving a vehicle without the owners consent (Veh. Code, 10851, subd. (a))[1] and of receiving or concealing stolen property (Pen. Code, 496, subd. (a);[2] hereafter section 496(a).) The trial court sentenced defendant to serve the midterm of three years for the Vehicle Code section 10851, subdivision (a) offense and a consecutive sentence of one-third the midterm for the section 496(a) offense, for a total term of three years eight months. The trial court also ordered defendant to pay a restitution fund fine of $600 and a suspended parole revocation fine of $600. On appeal, defendant contends that she was erroneously convicted of both unlawfully taking and receiving the same property. Defendant also contends that the trial court erred by failing to instruct the jury that defendant could not be convicted of both taking and receiving the same property. Defendant further contends that, even if she is guilty of both offenses, the sentence imposed for the section 496(a) offense should have been stayed pursuant to section 654. With respect to the restitution fund fine and suspended parole revocation fine, defendant asserts that the abstract of judgment must be amended to reflect the oral judgment of the trial court. For reasons that we will explain, Court will modify the judgment and affirm the judgment as so modified.

Appellant S.V., mother of L.A., appeals from a juvenile court order terminating her parental rights under Welfare and Institutions Code section 366.26.[1] Ten month old L.A. was taken into custody and subsequently detained after her father punched her mother in the face causing mother to drop the child. At the time of the incident, the parents were participating in voluntary family maintenance services, but had three times prior failed to abide by a safety plan. The Santa Cruz County Human Resources Department (the Department) recommended placing the child in a foster home and offering the parents reunification services. Because of the parents long history of substance abuse and domestic violence, on February 22, 2008, the juvenile court sustained the petition filed pursuant to section 300, subdivision (b) and ordered the child placed out of the home. The court also ordered services for the parents including supervised visits twice per week.
Despite initial progress in her case plan, by the time of the six month review hearing, the Department recommended termination of services. Mother had relapsed, had left her residential drug treatment program and had been terminated from Family Preservation Court. As a result, the juvenile court terminated services and set the matter for a section 366.26 hearing.

Defendants Gary Wang and Jill Pope Wang, individually and as trustees of the Wang Family Revocable Trust (collectively, the Wangs), appeal from a judgment following a court trial in favor of plaintiff Tolibas Construction, Inc., a California corporation, doing business as T & G Construction (Tolibas), in Tolibass action for breach of a construction contract and the Wangs cross-action for breach of contract and fraud. The Wangs contend the court erred in failing to award them damages due to Tolibass delay and other breaches of the parties construction contract, and erred in awarding Tolibas a 15 percent final payment fee and prejudgment interest. Tolibas cross-appeals from the judgment on the ground that the damages offset awarded to the Wangs was improperly calculated.

Defendant was sentenced to an indeterminate life term after his conviction for beating and sodomizing a partially paralyzed 70 year old man. He contends sentencing him to prison for an indeterminate life term for crimes committed when he was 16 years old constitutes cruel and unusual punishment. Court affirm the judgment.

Sylvie G. Stewart appeals from a judgment entered after she pleaded guilty to first degree murder. (Pen. Code, 187, 189.) She contends the trial court erred when it denied her request to withdraw her guilty plea. Court conclude the trial court did not abuse its discretion and will affirm.

Defendants counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Court find no arguable issues and affirm.

Appellant Andrew Clifford King appeals from two state prison sentences he received after he was convicted by a jury of possession of methamphetamine (Health & Saf. Code, 11377) in case number 05-080860-0 (Case 2), and the trial court found that he violated the terms of his probation in case number 02-284183-1 (Case 1) and terminated probation. Appellants counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsels brief also includes an Issues Statement to assist the court in conducting its independent review, in accordance with People v. Anders (1967) 386 U.S. 738 (Anders).

After denial of his motion to suppress evidence, defendant admitted that he was an accessory after the fact to possession of an assault weapon (Pen. Code, 32), as charged in a juvenile petition filed pursuant to Welfare and Institutions Code section 602. In this appeal he challenges the juvenile courts denial of the motion to suppress. Court conclude that the evidence and statements seized from defendant were the product of an unlawful arrest, and reverse the judgment.

Defendant and appellant Adolfo Quiroz was convicted by a jury of premeditated attempted murder (Pen. Code, 664/187) and criminal threats (Pen. Code, 422). The jury also found that the crimes were committed for the benefit of a criminal street gang (Pen. Code, 186.22) and found several firearm enhancements true. Appellant was sentenced to prison for life with the possibility of parole, a consecutive term of 35 years to life, and a concurrent term.

Appellant contends: (1) the trial court prejudicially erred in excluding impeachment evidence; (2) the trial court prejudicially erred in permitting a witness to claim his Fifth Amendment right against self-incrimination as the witness previously had testified at the preliminary hearing; (3) the trial court prejudicially instructed with CALCRIM No. 3471; (4) the trial court prejudicially erred by omitting from the oral instructions portions of two instructions; (5) his counsel had a conflict of interest; (6) there was cumulative error; and (7) the trial court erred in imposing a consecutive 10-year sentence for the gang enhancement.
Court correct a sentencing error. In all other respects, Court affirm.

Fairmont Specialty Group, the surety, appeals from an order denying a Penal Code section 1305.4 motion to extend the 180-day period to vacate a bail bond forfeiture and exonerate the bond. (All further statutory references are to the Penal Code unless otherwise noted.) Court affirm the order.

This appeal arises out of a multi-million dollar public works project in which defendant and respondent City of Los Angeles Department of Public Works (City) accepted a bid from plaintiff and appellant construction firm Kenny/Shea/Traylor/Frontier-Kemper (Contractor) to serve as prime contractor for the building of an 11-mile sewer tunnel. Although Contractor completed the project on time and under budget, the City withheld $200,000 from the total payment of $257,738,260.52 as a penalty for failing to seek and obtain prior approval for what the parties contract termed the illegal substitution of three of the entities listed on Contractors bid proposal as subcontractors. Contractor sued City, alleging the penalty assessment was in breach of the construction contract and filed a motion for summary adjudication to establish that the contracts penalty provision did not apply to Contractors actions, which was denied. City responded with a summary judgment motion, which the trial court granted, finding no material issues of fact as to the propriety of Citys penalty assessment under the contract terms governing Contractors failure to follow the requirements for subcontractor substitution.