CA Unpub Decisions

Esteban Cabrera appeals from his conviction by jury verdict of three counts of attempted murder. He challenges the jury instruction on evidence of gang activity; the trial courts exclusion of defense evidence; and the sufficiency of the evidence to support the jurys verdict that the crimes were committed in furtherance of a criminal street gang. (Pen. Code, 186.22.) He also claims prosecutorial misconduct and ineffective assistance of counsel. Court find no basis for reversal and affirm.

Raul Alderete was convicted of numerous crimes, including corporal injury to a cohabitant, kidnapping to commit rape and oral copulation, several sex crimes, assault with a deadly weapon, and child custody deprivation. He appeals from the judgment of conviction, claiming CALJIC No. 2.50.1 allows the jury to convict on a lesser standard than beyond a reasonable doubt. The Supreme Court has upheld this instruction, and we thus reject this contention. Appellant also claims there is insufficient evidence to support his conviction for deprivation of the right to child custody under Penal Code section 278.5, that imposition of an upper term sentence on count 1 violated his right to jury trial as expressed by the Supreme Court in Cunningham v. California (2007) 549 U.S. 270, and that his sentence constitutes cruel and unusual punishment in violation of the state and federal constitutions. Court find no grounds for reversal. Appellant also claims he is entitled to conduct credits. Respondent agrees, and Court shall modify his sentence accordingly.

Mauricio Ernesto Ayala appeals from the judgment entered upon his convictions by jury of willful and malicious discharge of a firearm from a motor vehicle (Pen. Code, 12034, subd. (c), count 2),[1]assault with a semiautomatic firearm ( 245, subd. (b), count 3) and possession of a firearm by a felon ( 12021, subd. (a)(1), count 4). The jury found the gang allegation within the meaning of section 186.22, subdivision (b) to be true as to count 4, but untrue as to counts 2 and 3. It also found to be true as to count 2 the allegation that appellant personally and intentionally discharged a firearm ( 12022.53, subds. (c)(d)) and as to count 3 the allegations that he personally used a firearm ( 12022.5, subds. (a) & (d)) and personally inflicted great bodily injury ( 12022.7, subd. (a)). The trial court sentenced appellant to an aggregate state prison term of seven years plus 25 years to life. As to count 2, appellant was sentenced to the upper term of seven years, plus 25 years to life pursuant to section 12022.53, subdivision (d), to run consecutively. As to count 3, appellant was sentenced to the upper term of nine years, plus ten years pursuant to section 12022.5, subdivisions (a)(d), plus three years pursuant to section 12022.7, subdivision (a). As to count 4, appellant was sentenced to the upper term of three years, plus four years pursuant to section 186.22, subdivision (b)(1)(A). Counts 3 and 4 were stayed pursuant to section 654.
Appellant contends that the evidence is insufficient to support the true finding on the gang enhancement with respect to the felon in possession of a firearm charge. Court agree.

Defendant, Albert Anthony Garcia, appeals from his convictions for firearm possession (Pen. Code,[1] 12021, subd. (a)(1)) and ammunition possession by a felon. ( 12316, subd. (b)(1).) Defendant admitted that he had been convicted of a prior serious felony and served three prior prison terms. ( 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly: denied his peace officer records discovery motion; imposed a court security fee as to each count; imposed a specimen and sample fee; and imposed a consecutive term as to count 2. Court modify the judgment.

Father L.P. challenges the juvenile courts jurisdictional findings sustaining allegations against him. He claims there is no substantial evidence to support the findings. The Department of Children and Family Services (DCFS) argues the appeal should be dismissed as moot. Court decline to dismiss the appeal, but find sufficient evidence supports the jurisdictional findings and affirm that order.

Plaintiff and appellant Melkam Tadesse appeals from the judgment entered by the trial court in her personal injury action against the Board of Trustees for the Los Angeles Community College District. She asserts that the trial court erred in refusing to allow her to present new evidence on the day of the summary judgment hearing. The trial court ruled properly, as Tadesses request was untimely and inconsistent with the rules governing summary judgment proceedings.

Defendant Juan Ayala appeals from the judgment entered following his conviction by a jury of second degree robbery.[1] (Pen. Code, 211.) He was also found to have been armed and to have used a firearm during the commission of the offense. ( 12022, subd. (a)(1), 12022.53, subd. (b).) He contends the court erred when it failed to suppress his statement to police and restricted inquiry into the circumstances surrounding the custodial interview. Court conclude otherwise and affirm the judgment.

A jury convicted defendant Bruce Burgess of forcible rape ( 261, subd. (a)(2)),[1] kidnapping ( 207, subd. (a)), and inflicting corporal injury on a former spouse ( 273.5, subd. (a)). The victim of the three offenses was defendants former wife, Marion B. The trial court imposed an aggregate sentence of six-years. In this appeal, defendant contends that the trial court abused its discretion in permitting the prosecution to introduce evidence of three uncharged offenses he committed against Marion B.: two separate acts of rape and one act of domestic violence. Court find no abuse of discretion. Defendant next contends that the pattern instructions explaining how the jury can use evidence of uncharged offenses are inaccurate as a matter of law because the instructions require that the uncharged offenses be proven by a preponderance of the evidence instead of beyond a reasonable doubt. Precedent compels rejection of that contention. Lastly, defendant contends prejudicial error occurred because the trial court did not instruct about the lesser included offenses of attempted kidnapping and false imprisonment. Court find that the doctrine of invited error precludes consideration of the claim and, in any event, any error which may have occurred was not prejudicial. Court therefore affirm the judgment.

Following denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant and appellant Raymond Hernandez entered a plea of no contest to a charge of short-barreled shotgun or rifle activity in violation of Penal Code section 12020, subdivision (a)(1). Defendant was sentenced to the midterm of two years in state prison, execution of the sentence was suspended, and defendant was placed on formal probation for three years. In this timely appeal, defendant argues the trial court erred in denying his motion to suppress evidence. Court affirm.

The minor, R.G., was declared a ward of the court and placed home on probation. On appeal she contends the juvenile court erred in pronouncing a maximum term of confinement. Court affirm the disposition order as modified.

McCormick contends on appeal as follows: (1) San Pedro supplied Hill with defective equipment and supervised the launch of the barge, bringing the case within the exception in Hookerv. Department of Transportation (2002) 27 Cal.4th 198 (Hooker) to the doctrine of Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette); (2) under Evard v. Southern California Edison (2007) 153 Cal.App.4th 137 (Evard), San Pedros violation of Cal-OSHA regulations regarding covering deck openings affirmatively contributed to McCormicks injury and justified denial of summary judgment; (3) San Pedros failure to guard the inspection hatch openings defies all notion of vessel safety; (4) cases rejecting or distinguishing Evard are incorrectly decided; (5) there is no defense in California or under federal maritime law for open and obvious dangers; and (6) the trial court erroneously sustained evidentiary objections to declarations by McCormick and Mitchell Stoller, a maritime safety expert. Court hold summary judgment was properly granted under the Privette doctrine and need not address the evidentiary issues as inclusion of the stricken evidence would not alter our conclusion that San Pedro had no duty to McCormick under the facts presented.

Defendant and appellant Fredrick Albert Cooper was charged in count one with carjacking (Pen. Code, 215, subd. (a)), in count 2 with kidnapping to commit another crime ( 209, subd. (b)(1)), and in count 3 with robbery ( 211). It was further alleged defendant had suffered a prior conviction under the three strikes law ( 1170.12, subds. (a)-(d), 667, subd. (b)-(i)) and a serious felony prior conviction ( 667, subd. (a)(1)), and that he had served five prior prison terms ( 667, subd. (b)). The judgment is affirmed.

Melvin Harris appeals from an order denying his petition for writ of error coram nobis to recall a 1999 sentence after a jury convicted him of possessing methamphetamine and marijuana for sale at Atascadero State Hospital. (Health & Saf. Code, 11378, 11359.) Appellant was sentenced to state prison for 50 years to life as a three striker. (Pen. Code, 667, subd. (e)(2)(A)(ii).) In 2000, we affirmed the conviction in a published opinion. (People v. Harris (2000) 83 Cal.App.4th 371 [B13644].) Appellant filed the coram nobis petition on March 23, 2009, alleging, among other things, that he was insane when he committed the offense and at trial.

After repeatedly victimizing his 78-year-old grandfather and others, defendant Ruben Michael Baltazar was convicted of three felonies (two first degree burglaries and a vehicle theft) and four misdemeanors (two thefts from an elder or dependent adult and two violations of a court order restraining defendant from being within 100 yards from his grandfather or his grandfathers home). The jury found defendant not guilty of other theft related offenses against his grandfather. Defendant was sentenced to four years in prison (concurrent middle terms of four years for the burglaries, with a concurrent middle term of two years for the vehicle theft) and time served (294 days in county jail) for the misdemeanors. On appeal, defendant challenges the sufficiency of the evidence to support his convictions for first degree burglary and theft, and raises a variety of other claims of error. Court shall modify the judgment to stay execution of sentence on three of the misdemeanor convictions and to specify that defendant is entitled to additional presentence custody and conduct credits. Otherwise, Court shall affirm the judgment.