CA Unpub Decisions

A jury found Aitang See, Lavang See, and Chawa See (jointly, appellants) guilty of the murder of Robert Trevino (Pen. Code, 187, subd. (a))[1]and conspiracy to commit the murder ( 182/187). The jury found true the street gang allegations that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)) and that the murder was committed while appellants were active participants in a criminal street gang ( 190.2, subd. (a)(22)). As to Chawa,[2]the jury also found true the allegations that he personally and intentionally discharged a firearm proximately causing the death of Trevino ( 12022.53, subds. (d) & (e)(1)) and the offenses were enhanced with a personal discharge of a firearm allegation ( 12022.53, subd. (c) & (e)(1)). As to Lavang and Aitang, the jury also found true vicarious discharge of a firearm allegations ( 12022.53, subds. (c), (d) & (e)(1)). The trial court sentenced Chawa to life without the possibility of parole for the murder, plus a consecutive 25 years to life for the firearm enhancement. It sentenced Lavang to life without the possibility of parole for the murder, plus a consecutive 25 years to life for the firearm enhancement. And it sentenced Aitang to 50 years to life for the murder and firearm enhancement.

Appellants Daniel Joseph Martinez and Pablo Lopez III were charged, by first amended information, with premeditated murder of Jefte Garcia (Pen. Code,[1] 187; count I), attempted premeditated murder of Jair Garcia ( 187, 664; count II), and active participation in the Norteno criminal street gang ( 186.22, subd. (a); count III). As to counts I and II, it was alleged that Lopez personally and intentionally discharged a firearm and proximately caused great bodily injury or death ( 12022.53, subd. (d)), that both used a firearm and the crime was committed for the benefit of or in association with a criminal street gang ( 12022.53, subd. (e)(1)), and that both committed the offense for the benefit of or in association with the Norteno criminal street gang ( 186.22, subd. (b)). As to count III, it was alleged that Lopez personally used a firearm ( 12022.5, subd. (a)).

Defendants Jaime Diaz Medina and Marco Antonio Mora were members of a criminal street gang. While attempting to retaliate for a shooting of a fellow gang member by a rival gang, Juan Garcia (another member of defendants gang) shot two innocent bystanders, one of whom died. Defendants were convicted of murder and attempted murder as aiders and abettors. Defendants challenge their convictions and sentences.
Medina argues the case against him should have been dismissed, or the district attorneys office recused from prosecuting the case, because an investigator for the district attorneys office listened to telephone calls between Medina and his counsel, which had been recorded by the Riverside County jail in violation of Penal Code section 636, subdivision (a). (All further statutory references are to the Penal Code.) The prosecution established there was not a substantial threat of demonstrable prejudice to Medina. (People v. Zapien (1993) 4 Cal.4th 929, 964.) We conclude the trial court did not abuse its discretion by selecting a lesser sanction than dismissal or recusal for the violation of Medinas attorney client privilege.

Appellants Jess Lara and Shaun Wachter were charged with murder in the shooting death of Steven Zamora. At trial, the defense theorized Lara shot Zamora to protect Wachter, and the facts supported this theory. However, the trial court failed to instruct on the defense of others, and the jury convicted appellants of the lesser-included crime of manslaughter. It also convicted Wachter of unlawfully possessing a firearm as a felon. We find the court erred in failing to instruct on the defense of others, and the error warrants the reversal of appellants manslaughter convictions and a remand for resentencing. In all other respects, Court affirm.

After over 25 years of employment, Richard R. Shiring retired and sued his employer Certified Alloy Products, Inc. (CAP). Shiring claimed CAP owed him contractually bargained for executive bonuses earned in 2002, 2003, 2004, 2005, and 2006. The trial court granted CAPs summary judgment motion, concluding Shiring was an at-will employee who received written notice the terms of the bonus plan changed. It ruled CAP essentially terminated the employment contract and offered another contract, which Shiring accepted by continuing to work without objection. Alternatively, the court concluded Shiring, by his five years of silence, was estopped from claiming the contract was not amended. We conclude summary judgment was not appropriate in this case. The judgment is reversed.

Hung Van Phan appeals from a judgment that sentenced him to 17 years, 8 months in state prison, after a jury found him guilty of 17 sex offenses against 2 minors. Phan argues the evidence was insufficient to support one count, it was error to impose consecutive sentences on 5 counts, and he is entitled to an additional day of presentence credit. Court disagree except as to the presentence credit, modify the judgment accordingly, and affirm as modified.

F.M. (the Minor) appeals from the dispositional order adjudging him to be a ward of the court under Welfare and Institutions Code sections 602 and 725, subdivision (b). In the dispositional order, the juvenile court found true beyond a reasonable doubt the allegations of an amended wardship petition charging the Minor with street terrorism (Pen. Code, 186.22, subd. (a)) and conspiracy to commit assault with a deadly weapon (id., 182, subd. (a)(1)). The juvenile court also found true beyond a reasonable doubt the enhancement to the conspiracy to commit assault with a deadly weapon count that the Minor committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (id., 186.22, subd. (b)). The court found the matter to be a felony with a maximum term of nine years eight months, and placed the Minor in the custody of the probation department for commitment to juvenile hall for 365 days, with credit of 169 days for time served.

George Armitage, Jr., drove a dump truck head-on into a parked pickup truck driven by Douglas C. Harp, thrusting the pickup truck back 25 to 30 feet into a ditch. After the collision, the dump truck lost traction on the gravel road, slipped backwards, then pulled forward and again struck the pickup truck. Harp suffered injuries from the collisions. The collisions occurred on an oil field in Yorba Linda being converted to residential development. Armitage was employed by Leading Edge Trucking, Inc. (Leading Edge), which supplied dump trucks and drivers to Mesa Contracting Corporation (Mesa), a grading contractor responsible for soil remediation at the oil field. Harp worked as a foreman for the company responsible for dismantling the oil wells.

Dillon Consulting Engineers, Inc., and Michael Dillon (collectively Dillon) appeal from an order denying their motion to strike the complaint filed against them by Ware Malcomb, pursuant to Code of Civil Procedure section 425.16 the anti-SLAPP law.[1] The trial court denied the motion based upon its determination the anti-SLAPP law did not apply, as the protected speech or petitioning activity alleged in the complaint i.e, Dillons direct communication to governmental authorities of his decision to rescind his engineering approval of design documents created in connection with Ware Malcombs construction project was merely incidental to Ware Malcombs alleged causes of action based upon his breach of professional duties and contract.
Court affirm the order. The causes of action asserted by Ware Malcomb against Dillon were all based upon the allegations that Dillon entered into an agreement to provide the engineering services necessary for the design phase of the project, and that he was aware those services included producing design documents which were signed and sealed under Mr. Dillons license. His alleged rescission of that signature and seal, which apparently rendered those documents worthless in the context of the construction permitting process, was accomplished by notification to Ware Malcomb itself the party with whom Dillon had contracted to perform the engineering services and did not require any notification to third parties. The fact that Dillon chose to additionally notify third parties of his decision (a fact not actually alleged in the complaint) was merely incidental to each of the causes of action alleged.

Following a 14th subsequent parole consideration hearing in 2008, the Board of Parole Hearings (Board) again found petitioner Arthur Sam Criscione unsuitable for parole. Shortly after the Board made its decision, the California Supreme Court filed In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), which clarified the law pertaining to parole denials. The superior court granted Crisciones petition for a writ of habeas corpus, concluding that the matter should be remanded to the Board for a new hearing to be conducted in conformance with the standard set by Lawrence. Respondent James D. Hartley, Acting Warden at Avenal State Prison (Warden) appeals from that order. We conclude that the Boards decision meets the Lawrencestandard. Accordingly, Court reverse.

Luis Manuel Flores pleaded no contest to receiving stolen property (Pen. Code, 496, subd. (a))[1] as part of a negotiated plea providing for dismissal of another count and a grant of probation that included serving a 60 day jail term. The court suspended imposition of sentence and placed defendant on formal probation for three years. On appeal, defendant Flores challenges gang-related probation conditions. Court either strike or modify the challenged conditions and affirm.

In August 2008, defendant Maurice William Hooker entered a plea of no contest to two felony counts, namely, inflicting corporal injury on his spouse, and inflicting corporal injury on a child, his stepdaughter. Defendant also admitted the allegations that he had (1) inflicted great bodily injury upon his spouse, (2) previously been both convicted of inflicting corporal injury on a child and had not remained free of both prison custody and felony convictions for 10 years, (3) previously been convicted of a serious felony, robbery, and (4) previously been convicted of five felony strikes (i.e., five counts of robbery). He thereafter brought a motion to strike the prior strike allegations, in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which was opposed by the People. The court denied the Romero motion and sentenced defendant to an indeterminate term of 50 years to life in prison, consecutive to a determinate term of 13 years. Defendant argues on appeal that the trial court erred in denying his Romero motion. Court conclude that the court did not abuse its discretion and therefore affirm.

Defendant Lac Tran appeals from a sentence imposed following his plea of no contest to one count of residential robbery in concert (Pen. Code, 213, subd. (a)(1)(A)). Court appointed counsel to represent Tran in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Tran of his right to submit written argument in his own behalf within 30 days. We received a supplemental letter brief from Tran on November 19, 2009, in which Tran argues that his trial counsel was ineffective and that the trial court miscalculated his custody credits.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

Pursuant to a negotiated plea, Doreen Poston (defendant) pleaded no contest on April 13, 2009, to one count of cruelty to an animal (a cat). (Pen. Code, 597, subd. (a).) In exchange for her plea, the defendant was promised probation on the condition she be released to PALS, a mental health treatment program; and after one year of doing well in mental health treatment court she could apply to the court to have her conviction reduced to a misdemeanor. On May 5, 2009, the court suspended imposition of sentence and placed defendant on formal probation for three years. Thereafter, on June 8, 2009, defendant filed a notice of appeal challenging events based on the sentence or matters occurring after the plea.