CA Unpub Decisions

A modification decision.

Fernando Mendoza and Guadalupe Ruiz Ayala appeal from judgments after a jury convicted them of attempted murder and two counts of aggravated assault and found true great bodily injury enhancements. Mendoza argues the trial court erroneously admitted one of the victims statements as a spontaneous declaration, the admission of Ayalas statement to his sister and father violated his Sixth Amendment rights, the court erroneously admitted other acts evidence, and there was cumulative error. Ayala argues the trial court erroneously admitted the same other acts evidence, insufficient evidence supports the jurys finding on the enhancement he personally inflicted great bodily injury on one of the victims, and the court erroneously instructed the jury on the great bodily injury enhancement. In supplemental briefing, Ayala contends the trial court erroneously imposed a criminal conviction assessment and ordered he register as a gang member. Mendoza and Ayala also join in each others arguments to the extent they accrue to their own benefit.
As Court explain below, with the exception of one of Ayalas sentencing claims, none of the contentions have merit. With respect to Mendoza, Court affirm the judgment, and as to Ayala, Court affirm the judgment as modified.

Janet Melizandy Melendez appeals from a judgment after a jury convicted her of unlawfully taking a vehicle with a prior conviction and grand theft auto, and found true the street terrorism enhancements as to those offenses. She argues (1) insufficient evidence supports the jurys findings on the street terrorism enhancements, (2) the trial court erroneously admitted gang expert testimony, (3) the court erroneously denied her new trial motion, and (4) the court erroneously ordered her to pay the victim $130 in restitution. Because we conclude insufficient evidence supports the jurys findings on the street terrorism enhancements and we reverse those findings, Court need not address her claims the court erroneously admitted gang expert testimony and denied her new trial motion. Her claim the court awarded restitution in an incorrect amount has no merit, and we affirm the judgment in all other respects.

Defendant Phillip Delgado challenges his convictions for sexual offenses against two minors. He contends he was wrongly tried in Riverside County on offenses committed in Los Angeles County. He further contends prosecution on the Los Angeles County offenses was time-barred. He also asserts the jury was tainted and the prosecutor violated his due process right by unfairly examining him on his post-Miranda silence.
Court affirm the judgment of conviction. Penal Code section 784.7 allows prosecution of defendants sexual offenses in any county where any of the offenses occurred.[2] Defendant has no vicinage right to trial on the Los Angeles County offenses only in that county. Applying section 784.7 to defendant does not violate the constitutional bans against ex post facto laws. The Los Angeles County offenses were timely prosecuted within one year of the victims report to the police. And the juror taint and due process claims are baseless and, in any event, harmless.
But Court reverse as to sentence and remand for resentencing. The court was required to impose full, consecutive, determinate terms on two counts of committing forcible lewd acts on a child under 14.

Construction litigation between a building contractor and a homeowner has now spawned two successive lawsuits between them: the first involving construction defect claims by the homeowner, and the second involving defamation claims by the contractor. Both lawsuits resulted in damage awards to the respective plaintiffs. In the second lawsuit, which is the subject of the instant appeal, the jury awarded $300,000 to the building contractor, including a $125,000 punitive award, even though it found that the building contractor sustained no actual damages. The parties have determined to end this mutually destructive litigation cycle. As part of a settlement, reached through this courts judicial settlement program, they have filed a stipulated request to reverse the judgment on appeal. Court grant the request. We discern no public policy reason to preserve the underlying judgment under the statutory criteria. (Code Civ. Proc., 128, subd. (a)(8)[1].)

Defendant Amador Gonzalez entered a guilty plea to charges of attempted murder and aggravated assault, and admitted the truth of sentencing enhancements that he used a deadly weapon and personally inflicted great bodily injury. The trial court sentenced defendant to a total prison term of six years, which was the maximum term specified in the plea agreement.
Defendant appealed, and we appointed counsel to represent him. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested that we consider two issues: (1) was defendant sentenced in accordance with his guilty plea agreement; and (2) did the trial court abuse its discretion by not striking the enhancement for personal use of a knife.

Defendant Patrick Noel Barnett was convicted by jury of one count of aggravated sexual assault of a child under the age of 14 (Pen. Code, 269)[1] based on a violation of section 288a (oral copulation) by force or duress and three counts of lewd or lascivious conduct involving a child under the age of 14 by force or duress ( 288, subd. (b), hereafter sometimes lewd conduct). For the purpose of tolling the statute of limitations on the lewd conduct counts ( 803, subd. (f)), the jury found true special allegations that the complaint was filed within one year of the date the offenses were reported to law enforcement, that the crimes involved substantial sexual conduct (as defined in 1203.066, subd. (b)), and that there was clear and convincing, independent evidence that corroborated the victims allegations. The court sentenced defendant to 15 years to life on the aggravated sexual assault count consecutive to 18 years for the three lewd conduct counts.

This is an appeal from an order following a court trial finding appellant Michael James Smith to be a sexually violent predator (SVP) as defined in the Sexually Violent Predator Act (Welf. & Inst. Code, 6600 et seq.) (SVPA),[1] and committing him to the Department of Mental Health (the Department) for an indeterminate term pursuant to section 6604. On appeal, appellant contends there was insufficient evidence to support the courts finding that he has a mental disorder that makes it likely he will engage in criminal sexual conduct if released. Appellant also contends that the recently amended SVPA violates the due process, equal protection, ex post facto, and double jeopardy clauses of the state and federal constitutions. Lastly, appellant argues that because the trial court relied on evaluations performed under a protocol subsequently deemed invalid pursuant to the Administrative Procedures Act (Gov. Code, 11340 et seq.) (APA), the matter must be reversed and remanded for a new screening and evaluation process. Court reject these arguments and affirm.

An arbitrator issued an award to plaintiff Saba Tesfagiorgis (plaintiff) under her automobile policy with defendant State Farm Mutual Automobile Insurance Company (State Farm), but attributed only 25 percent of her injuries to the accident covered under the policy. The trial court confirmed the arbitration award, and plaintiff appeals from the resulting judgment. Because plaintiff has not complied with California Rules of Court and has failed to provide an adequate record permitting review of the error she asserts, Court must dismiss her appeal.

A modification decision.

A jury found defendant guilty of two counts of felony domestic violence (Pen. Code, 273.5, subd. (a)) and deadlocked on two counts charging felony criminal threats (Pen. Code, 422) and misdemeanor battery (Pen. Code, 243, subd. (e)(1).)[1] Defendant pleaded no contest to driving with a suspended license. (Veh. Code, 14601.2.) The court suspended imposition of sentence for three years, granted probation and imposed conditions that included defendant serve 365 days in the county jail. Defendant filed a timely notice of appeal. Defendants counsel has filed a detailed opening brief that raises no issues and asks this court for an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant that he could file a supplemental brief and he has not done so. Court have reviewed the record on appeal and find there are no meritorious issues to be briefed.

Defendant, 16-year-old D.E., appeals from a dispositional order declaring him a ward of the court and placing him on home probation after he was found by the juvenile court to have conspired to commit theft (Pen. Code, 182) and stolen a motorcycle (Veh. Code, 10851, subd. (a)). 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. (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 Michael P. Reymann appeals from a judgment entered after a jury found him guilty of count 1, assault with a deadly weapon (Pen. Code, 245, subd. (a)(1));[1] count 2, misdemeanor battery ( 242); and count 3, hit and run resulting in injury (Veh. Code, 20001, subds. (a) & (b)(1)).[2] The jury found not true the allegation that as to count 1, appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to state prison for the midterm of two years as to count 3, the principal term. The trial court imposed and stayed the low term of two years on count 1 and six months in county jail on count 2 pursuant to section 654. Appellant contends that: (1) the evidence was insufficient to prove knowledge of injury as required for a violation of Vehicle Code section 20001, subdivisions (a) and (b)(1); and (2) the trial court abused its discretion by imposing a state prison term and a midterm sentence. Court affirm with directions to the trial court to correct the abstract of judgment.

H.H. (Mother) and M.H. (Husband) appeal from 2008 detention, jurisdiction, disposition and other orders made by the juvenile court pursuant to Welfare and Institutions Code sections 300 and 361.[1] The orders resulted in A.A. (Son, age 8) and K.H. (Daughter, age 2) being detained in the family home with Husband and in Mother being ordered to undergo an Evidence Code section 730 psychological evaluation (730 evaluation). After the appeals were filed, Mother underwent the 730 evaluation, and in 2009 the juvenile court returned the children to her custody and terminated its jurisdiction. The issues raised in this appeal are effectively moot. However, because the courts findings of detriment and its detention and disposition orders were not made in accordance with the proper legal standards, to avoid possible collateral prejudice to Mother we reverse the challenged orders without a remand for further proceedings rather than simply dismiss the appeal.