CA Unpub Decisions

This appeal concerns a political imbroglio in the City of Lynwood. In 2007, the Lynwood electors voted to (1) recall four of the five members of the Lynwood City Council, and (2) elect four successor city council members. The city council members form the membership of the Lynwood Redevelopment Agency (the Agency). One week after the four city council/Agency members were recalled, they approved two agreements regarding a proposed redevelopment project in Lynwood.
The Agency now with new membership--has brought suit to invalidate its own actions. The trial court acceded to the Agencys requests. After conducting an independent review, based on undisputed facts, we conclude that: first, the recalled Agency members were still in office when they voted on the two agreements because their successors had not yet qualified by taking the oath of office; second, the Agency cannot sue itself for violating the Brown Act; and, third, there is no showing that the agreements are unconscionable for either party to the contracts. Accordingly, Court reverse the judgment in favor of the Agency.

Luis J. Rodriguez was convicted of one count of first degree murder and the jury also returned true findings on gang and weapons enhancements. Before this court appellant challenges only the jurys true finding on the gang enhancement. Specifically he argues that there was insufficient evidence that the charged crime was committed: (1) by a criminal street gang as the term is defined under Penal Code section 186.22, subdivisions (e), (f);[1]or (2) for the benefit or in association with a gang. Appellant further claims that the enhancement cannot stand because the court erred in allowing the gang expert to exceed the scope of proper expert testimony in opining on the ultimate issue of appellants intent. Finally, appellant claims that the murder was not committed with the specific intent to promote, further or assist the gang in committing additional criminal activity. Appellants claims lack merit. First, the prosecution presented sufficient evidence that appellants gang has as one of its primary activities the commission of crimes enumerated in section 186.22, subdivision (e), and that it has engaged in a pattern of criminal gang activity. Furthermore, the evidence presented at trial was sufficient to show that the murder was gang-related and the testimony and opinions offered by the expert were not beyond the scope of testimony gang experts have been traditionally permitted to give, and were appropriate to aid the lay jury in understanding the evidence. Finally, under California law, the prosecutor was not required to present proof that the murder was committed to further or promote future gang activities. Consequently, Court affirm.

A jury convicted Johny Seclan (appellant) of first degree burglary (Pen. Code, 459)[1] (count 1), child abuse ( 273, subd. (a)) (count 9), and assault with a semiautomatic firearm ( 245, subd. (b)) (count 5). As to all three counts, the jury found that appellant personally used a firearm in commission of the offenses within the meaning of section 12022.5. The trial court sentenced appellant to a total term of 12 years and eight months in prison. In count 5, the trial court imposed the midterm of six years and four years for the firearm-use allegation, for a total of 10 years. In count 9, appellant received 16 months (one-third the midterm) along with 16 months for the firearm-use allegation for a total of two years, eight months. The trial court stayed a concurrent sentence in count 1 (four years for the burglary and four years for the firearm use allegation) pursuant to section 654. Appellant appeals on the ground that the trial courts admission of the 911 call in this case was prejudicial error and requires reversal. Court affirm.

Defendant Joshua P. Rosales timely appealed from his conviction on one count of second degree murder[1]and one count of grossly negligent discharge of a firearm. The jury found the firearm allegations to be true and the gang allegation to be not true. The court sentenced defendant to 40 years to life. Defendant contends the court erred in improperly instructed the jury on felony murder based on an unauthorized theory, in allowing two witnesses to testify after they invoked their Fifth Amendment privilege, and in excluding evidence the victim had two prior felony convictions. Court reverse.

A jury found defendant and appellant James Russell Cernogg, Jr., guilty of first degree murder and found true gun and gang enhancement allegations. The prosecutions theory as to Cernogg was he aided and abetted the murder of Michael Pimental. On appeal, Cernogg contends, first, that there is insufficient evidence to support his liability as an aider and abettor for Pimentals murder. Second, he contends that the trial court failed to instruct the jury on a lesser included offense of second degree implied malice murder and also failed to instruct the jury that he could be convicted of a lesser offense than the direct perpetrator. Third, he contends that imposition of sentence for a weapons use allegation under Penal Code section 12022.53, subdivision (d), violates the multiple conviction rule and federal double jeopardy. Finally, he contends that his sentence, 50 years to life, is cruel or unusual punishment under the California Constitution. Court disagree with these contentions and affirm the judgment.

A jury convicted Jarmon Sanford (appellant) of two counts of attempted murder (Pen. Code, 664, 187, subd. (a))[1](counts 1 & 5) and four counts of assault with a semiautomatic firearm ( 245, subd. (b)) (counts 2, 3, 4 & 6). In counts 1 and 5, the jury found that appellant discharged a firearm causing great bodily injury and discharged a firearm, respectively ( 12022.53, subds. (b), (c), (d) & (e)(1)). In counts 1 and 2, the jury found that appellant inflicted great bodily injury ( 12022.7, subd. (a)). With respect to all counts, the jury found that the crimes were committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). The trial court sentenced appellant to a total term of 89 years to life. In count 1, the trial court imposed 15 years to life for the attempted murder along with a gun-use enhancement of 25 years to life, for a total term of 40 years in that count. For the assault convictions in counts 3 and 4, the court imposed one-third the midterm (two years) and a 10-year gang enhancement, for a total term of 12 years in each of those counts. In count 5, the trial court imposed 15 years to life for the attempted murder and a 10-year gang enhancement, for a total of 25 years to life in that count. The trial court stayed midterm sentences in counts 2 and 6 under section 654.

Appellant Jimmie D. Lunceford was convicted of one count of assault on a police dog, inflicting serious injury, in violation of Penal Code section 600, subdivision (a) (section 600(a)). He was also convicted of three counts of criminal threats and one count of attempted first degree burglary. He was sentenced to a total of five years eight months in prison. He contends that the trial court had a sua sponte duty to instruct on legal justification as to the section 600(a) count. We find that on the facts of this case, no such duty existed. Court therefore affirm.

Arthur Dvonne Bonner killed Angel Dews in the bedroom of their apartment by manual strangulation. His defense, which was supported by expert testimony, was that he had suffered a particular form of epileptic seizure that rendered him unconscious of what he was doing. The jury convicted Bonner of murder in the second degree, and he was sentenced to 15 years to life for the murder, plus a five year enhancement for a prior serious felony conviction.
On appeal, Bonner contends that his several motions for a mistrial should have been granted, based on a discovery violation by the prosecutor and improper admission of hearsay evidence resulting in incurable prejudice. He contends that the trial court committed prejudicial error by failing to instruct the jury on the unreasonable self-defense form of voluntary manslaughter. He also contends that his admission that he suffered a prior conviction was constitutionally insufficient to support the imposition of a five-year enhancement for a serious felony under Penal Code section 667, subdivision (a)(1).
Court find no error in the judgment of conviction and accordingly, we affirm.

Appellant Michael Sheridan was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187, subdivision (a). Appellant Angela Sheridan, Michael's wife, was convicted of involuntary manslaughter in violation of Penal Code section 192, subdivision (b). The trial court sentenced Michael to a term of 15 years to life in state prison and Angela to the mid-term of three years in state prison. Both appellants were ordered to pay direct restitution to the victim's wife. Appellants appeal from the judgment of conviction. Angela contends that the evidence is insufficient to support her conviction and the trial court erred in instructing the jury on involuntary manslaughter under the natural and probable consequences doctrine and on the doctrine itself. Michael contends that the trial court erred in refusing to instruct the jury that it could convict him of involuntary manslaughter and in modifying two standard instructions on defenses to simple assault and battery. Both appellants contend that the trial court erred in applying a court construction penalty to the court security fee imposed on them. Court agree that the construction penalty was not authorized. It is ordered stricken. The judgment of conviction is affirmed in all other respects.

A jury convicted defendant Roy Williams of possession for sale of a controlled substance (Health & Saf. Code, 11351). Following a bifurcated bench proceeding involving special allegations regarding defendants prior drug-related convictions and prison terms, defendant was sentenced to an aggregate state prison term of five years: the middle term of three years plus two one-year enhancements for having served prior prison terms for felonies (Pen. Code, 667.5, subd. (b)). On appeal defendant contends his admissions were insufficient to justify the trial courts imposition of the prior prison term enhancements. Court affirm.

After defendant, Sarika Chawla, stipulated to liability in a personal injury action, a jury awarded plaintiff, Liana Mkrtchyan, $5,640 in damages. Plaintiff appeals from the judgment entered by the court on the grounds the trial court abused its discretion by: arbitrarily limiting voir dire to 30 minutes for each side; by sua sponte reducing the trial time estimate of 7 to 9 days to only 4 days; and denying plaintiffs motion to strike costs awarded which defendant sought pursuant to Code of Civil Procedure section 998, subdivision (c)(1). Court affirm the judgment and the order denying plaintiffs motion to strike defendants costs.

Jack Rabin appeals from an adverse judgment in his action for malicious prosecution arising from a cross-complaint filed against him by the defendant Michael Lotta. He argues that his right to a jury determination of various issues was violated. Court find no violation because the parties stipulated to a bench trial. Rabin also challenges the sufficiency of the evidence to support the judgment. Exercising our independent review of the facts determined by the trial court, Court conclude Lotta had probable cause to bring his cross-complaint, and affirm.

Plaintiff Mark Hill appeals a money judgment rendered in favor of defendant Manuel R. Castellanos, Hill's former partner. Hill sued Castellanos for breach of contract and fraud involving the sale of Castellanos's partnership interest in a carpet business to him. Castellanos sued Hill for money owed on a promissory note involving that sale. The actions were consolidated in the trial court. Court conclude, among other things, that substantial evidence supports the trial court's express and implied findings that 1) Castellanos did not mislead Hill about the value of the business, 2) he did not intend to compete with Hill at the time he sold his interest, 3) the sales transaction was fair, 3) Hill had access to the financial records, and 4) Castellanos did not breach a fiduciary duty regarding the sale. The court correctly ruled that Castellanos did not have a contractual duty to transfer his contractor's license to the business. It properly awarded judgment to Castellanos for money Hill owed on the promissory note. It then appropriately reduced that award by the damages it found for Castellanos's breach of a no-competition clause. Court affirm.

A jury found defendant and appellant Derrick M. Turner guilty of making a criminal threat (Pen. Code, 422[1]) and possessing marijuana for sale (Health & Saf. Code, 11359). The trial court sentenced defendant to two years in state prison. On appeal, defendant contends that the trial court erred in admitting certain evidence that lacked foundation and in failing to instruct the jury with an accomplice instruction. Defendant further contends that even if neither contended error standing alone requires reversal of the judgment, the cumulative prejudicial effect of the errors rendered his trial fundamentally unfair and a violation of due process. Court affirm.