CA Unpub Decisions

Appellant admittedly fired a gun only a few feet away from the location of an unarmed struggle between two other young men, one of whom was appellants close friend. A bullet from appellants gun entered the thigh of the man with whom appellants friend was fighting. The victim was then shot twice in the back by a different friend of appellants, and later died of his wounds. Appellant was convicted of second degree murder. The prosecution sought a murder conviction on either of two grounds, aiding and abetting a battery, the natural and probable consequence of which was the victims death (the aiding and abetting theory), or implied malice. We accept appellants argument that the prosecutions aiding and abetting theory is not supported by sufficient evidence of the underlying battery, because there was no evidence that appellants friend was the aggressor in his fight with the homicide victim. Court reject appellants claims of error as to the implied malice theory, however, and therefore affirm appellants conviction.

Bryon J. Marshall (appellant) was convicted, following a jury trial, of two counts each of forgery and possession of a forged instrument, as well as one count each of receiving stolen property and commercial burglary. On appeal, appellant contends the trial court erroneously instructed the jury that forgery is a general intent crime. In an accompanying petition for writ of habeas corpus, he contends defense counsels failure to engage a handwriting expert constituted ineffective assistance. Court shall affirm the judgment and deny the petition for writ of habeas corpus.

William E. Banks appeals from a modified judgment that was entered after a remand from this court. He contends (1) the trial court violated the principles articulated in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and its progeny when it declined to strike a prior conviction, (2) the court erred when awarding custody credits, and (3) the abstract of judgment contains an error that could be corrected. We conclude appellants second and third arguments have merit and will order the appropriate modifications. In all other respects, Court affirm.

Appellant Maria S. appeals the juvenile courts summary denial of her petition to be declared the de facto parent of her granddaughter, A.S.[1], who was adjudged a dependent child of the juvenile court. Appellant maintains that the juvenile court abused its discretion in not awarding her de facto parent status because she cared for A.S. in the first year of her life; she has established a psychological bond with her; she attended the juvenile court hearings; and if not granted de facto parent status, she might lose her relationship with A.S. through the termination of parental rights. Court affirm.

Appellant was convicted, following a jury trial, of unlawfully driving a motor vehicle. On appeal, he contends the trial court erred when it refused to instruct the jury on mistake of fact. Court shall affirm the judgment.

Arlene Bell-Sparrow (plaintiff) appeals the trial courts grant of summary judgment in favor of Farmers Insurance Company (defendant or Farmers)[1] in this employment discrimination/wrongful termination action. On appeal, plaintiff contends the trial court erred in granting summary adjudication as to each of the causes of action in her complaint, including race and age discrimination, wrongful termination, constructive discharge, breach of implied contract and the implied covenant of good faith and fair dealing, and retaliation. She also contends the court erred in granting summary judgment because there were outstanding discovery issues. Court affirm the judgment.

At issue in this consolidated appeal is whether a local governments allocation of the regional housing needs assessment (RHNA), made pursuant to Government Code section 65580 et seq.[1](the RHNA Law), is subject to judicial review, or whether the remedy is exclusively administrative. The City of Palmdale and the City of La Mirada (the Cities) appeal from the judgments dismissing their petitions for writ of mandate (Code Civ. Proc., 1094.5) seeking to direct defendant Southern California Association of Governments (SCAG) to revise its allocation of the regional housing needs assessment for the Cities. The same issue was raised by the City of Irvine. While this case was on appeal, the Fourth District Court of Appeal issued its opinion in City of Irvine v. Southern California Assn. of Governments (2009) 175 Cal.App.4th 506 (Irvine), review denied October 14, 2009, holding that the administrative procedure in section 65584 et seq. is intended to be the exclusive remedy. (Irvine, supra, at p. 510.) Court conclude that the analysis in Irvine is well-reasoned and persuasive, and the Cities have not demonstrated satisfactorily why we should not follow it. Accordingly, Court affirm the judgments.

Kenneth Lavelle Finnell appeals the judgment entered following his conviction by jury of murder in which he personally discharged a firearm causing death and assault with a firearm in which he personally used a firearm. (Pen. Code, 187, 12022.53, subd. (d), 245, subd. (a)(2), 12022.5.) The trial court sentenced Finnell a term of 40 years to life in prison for murder and imposed a concurrent term for assault with a deadly weapon.
Finnell contends the People failed to bear their burden of demonstrating the absence of heat of passion. Thus, the conviction of murder must be reduced to voluntary manslaughter. Finnell also contends defense counsel rendered ineffective assistance in failing to object to the prosecutors misconduct. Court reject Finnells claims of error and affirm the judgment as modified to reflect the correct concurrent term imposed by the trial court for assault with a deadly weapon.

Defendant and appellant, Steven Michael Conklin, appeals the judgment entered following his conviction, by jury trial, for violating the sex offender registration statute (3 counts), and for possession of child pornography by a person previously convicted of a sex offense, with prior prison term and prior serious felony conviction findings (Pen. Code 290, 311.11, subd. (b), 667.5, 667, subd. (b)-(i)). Conklin was sentenced to state prison for a term of 75 years to life. The judgment is affirmed.

Eldred Benard Burge appeals the judgment entered following his conviction by jury of corporal injury to a cohabitant in which Burge personally inflicted great bodily injury under circumstances involving domestic violence, arson causing great bodily injury and battery on a cohabitant, a misdemeanor. (Pen. Code, 273.5, subd. (a), 12022.7, subd. (e), 451, subd. (a), 243, subd. (e)(1).)[1] The trial court found Burge had two prior convictions within the meaning of the Three Strikes law and section 667, subdivision (a)(1) and sentenced him to prison for a term of 36 years to life. Court reject Burges claims of instructional error and affirm his conviction but order the abstract of judgment modified to reflect a stayed term for arson.

In this action to enforce a settlement agreement, defendant Steven Solomon appeals from the judgment in favor of plaintiff Lori Solomon. Defendant contends (1) the trial judge was biased, necessitating reversal of the judgment and a new hearing before an impartial judge, (2) the trial court applied an improper measure of damages, and (3) the award of attorneys fees is excessive. Concluding that there is no merit to defendants contentions, Court affirm.

Franklynn Newton Brundige III appeals the judgment entered following his plea of no contest to two counts of lewd act with a child under the age of 14 years and two counts of continuous sexual abuse of a child. (Pen. Code, 288, subd. (a), 288.5, subd. (a).)[1] Pursuant to a plea bargain, the trial court sentenced Brundige to a term of 24 years in state prison and the People agreed to dismiss 14 remaining counts.
On appeal, Brundige contends one of the counts to which he pleaded no contest, count 19, was barred by the statute of limitations. Based thereon, Brundige concludes the trial court lacked authority to impose any prison term on count 19 and thus Brundige is entitled to a four year reduction of his sentence. Court conclude the appeal must be dismissed because Brundige failed to obtain a certificate of probable cause, which is a prerequisite to an attack on the validity of a plea. Even if this failure is overlooked, Brundige pleaded no contest to count 19 as part of a plea bargain and thus is estopped to assert any defense he might have raised with respect thereto.

Appellant Charles Nero was charged with and convicted of sales of a controlled substance. He was sentenced to the upper term of five years in prison, plus three years for a prior conviction of a similar crime, plus four years for four prior prison terms. The evidence showed that appellant and a codefendant, Cynthia Dodd, helped a police undercover officer, Officer Bednarchik, purchase narcotics from another codefendant, Christopher Rodase, using a prerecorded $20 bill. Two other undercover officers, Officers Do and Eiman, were present at that time. All three of the officers observed from a distance that appellant spoke with Rodase, but Eiman was the only one who actually saw the drug transaction. After meeting with Eiman, appellant returned to Bednarchik and handed her a rock of cocaine. Court find no error, and affirm.

Defendant and appellant, Larry Darnell Shields, appeals the judgment entered following his conviction, by jury trial, for first degree murder and attempted premeditated murder, with firearm and gang enhancements (Pen. Code, 187, 664/187, 12022.53, 186.22).[1] Shields was sentenced to state prison for a term of 70 years to life. The judgment is affirmed as modified.