CA Unpub Decisions

A jury convicted defendant Gino Buggs of assault by means of force likely to produce great bodily injury. Defendant contends his conviction must be reversed due to the following asserted trial court errors and prosecutorial misconduct: (1) allowing the victims in-court identification into evidence; (2) refusing to instruct the jury on the destruction of potentially exculpatory evidence; (3) failing to instruct sua sponte on the significance of drugs, alcohol, or mental impairment in assessing the credibility of witnesses; and (4) improper prosecutorial argument regarding factors affecting witness credibility. Court find no merit in defendants contentions, and affirm the judgment.

Appellant T.G. is the mother of nine-year-old M.B., a female dependent child of the juvenile court. Mother contends that the juvenile courts jurisdictional and dispositional findings and orders are not supported by substantial evidence. She also challenges dispositional orders regarding visitation and M.B.s education. Court reject Mothers contentions and affirm.

Defendant Fremont Automobile Dealership, LLC, doing business as Fremont Toyota (FAD), appeals the denial of its motion to compel arbitration of the wrongful termination claim against it in an action filed by plaintiff Kyle Fitchner (Fitchner). It contends the court erred in concluding its arbitration provision is unconscionable. Court affirm.

By an information filed in Lake County Superior Court on July 25, 2008, appellant, Quentin Michael Ray Lee, was charged with two counts of unlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a)) (count 1: 1984 Red Trail motorcycle; count 3: 1987 Honda motorcycle), and two counts of second degree burglary (Pen. Code, 459) (count 2: work shop; count 4: shed). On July 28, 2008, appellant pleaded not guilty to all charges. Appellant was notified of his right to file a supplemental brief on his own behalf but has not filed one. (People v. Wende (1979) 25 Cal.3d 436.) In a negotiated disposition on September 2, 2008, appellant entered a guilty plea with a Harvey[1]waiver to counts 1 and 2, in exchange for dismissal of the other counts.
On October 15, 2008, appellant filed a timely notice of appeal.

Pursuant to a negotiated disposition, defendant Arthur Jean Lonefight (appellant) pled no contest to domestic violence with a great bodily injury enhancement (Pen. Code, 273.5, subd. (a), 12022.7, subd. (e))[1] in exchange for the dismissal of a second identical count and the district attorneys promise not to file new charges arising from the same incident. Appellant was sentenced to the three-year midterm on the domestic violence charge and a consecutive four-year term on the great bodily injury enhancement. On appeal he contends the sentencing court erroneously believed it did not have discretion to impose restitution and parole revocation fines less than $1,400 and the abstract of judgment does not correctly reflect the great bodily injury enhancement. Court order the abstract of judgment corrected and otherwise affirm.

In this dispute over a mortgage loan, appellants John L. and Gloria A. Wheeler, acting in propria persona, appeal from a summary judgment granted to respondents MortgageIT, Inc. (MortgageIT) and GMAC Mortgage Corporation (GMAC). Appellants claim The Honorable Judge Winifred Y. Smith erred when she stated [appellants] have failed to raise a triable issue of material fact showing that [respondents] are liable for breach of contract, fraud and deceit and intentional infliction of emotional distress. However, appellants fail to support this claim of error with any discernible legal argument or discussion of the evidence submitted by respondents below. Consequently, appellants challenge to the grant of summary judgment must be deemed waived; and Court affirm.

Following defendants entry of a plea of no contest to attempted second degree commercial burglary (Pen. Code, 664/459) he was sentenced to the lower term of eight months in state prison. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Appellant Deanna W. appeals from the termination of her parental rights to two of her minor children, Gavin W., born in 2005, and N.W.[1], born in 2007. (Welf. & Inst. Code, 366.26.)[2] She contends the juvenile court erred (1) by failing to apply the beneficial relationship exception to termination of parental rights ( 366.26, subd. (c)(1)(B)(i)); (2) by failing to evaluate her competency and the need to appoint a guardian ad litem; and (3) by failing to revisit proceedings conducted while appellants original attorney had a conflict of interest. Court reject each of these arguments and affirm the judgment.

Appellant, B.K., appeals from the Contra Costa County Juvenile Courts disposition of January 29, 2009 revoking appellants probation. Appellants appointed counsel has identified no issues on appeal and asks us to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436. Court affirm the juvenile courts disposition.

A modification decision.

On the evening of July 31, 2004, 16-year-old Juan Gomez went into a market owned by his parents, while his friend, 14-year-old Salvador Cruz waited outside. As Gomez was leaving the market, both he and Cruz were struck by bullets fired from a passing white Mitsubishi. Gomez died from his wounds. Days later, police stopped Marco Guerra, a known 18th Street Gang member. Guerra was driving a white Mitsubishi with damage and other distinctive markings matching those of the car shown in the markets surveillance video. Two other known 18th Street Gang members were with Guerra in the car. After Guerra was arrested, he volunteered to police he was behind the wheel of the white Mitsubishi at the time of the shooting, but he claimed another gang member had forced him at gun point to drive the car. In a later interview, Guerra again admitted to police he had been driving the car when the shooting occurred.
The judgment is affirmed.

Durrell Anthony Puckett appeals from a judgment convicting him of 11 counts of rape (Pen. Code, 261, subd. (a)(2)), attempted rape ( 261, subd. (a)(2), 664), robbery ( 211), kidnapping ( 209, subd. (b)(1)) and making criminal threats ( 422). Puckett argues his conviction should be reversed for instructional error and insufficient evidence. Puckett also contends the trial court erred in calculating his presentence custody credits. Court modify the judgment to reflect the correct number of custody credits due to Puckett and affirm in all other respects.

The jury found defendant Roderick Milner guilty of the first degree murder of Darnell Humphrey[1](Pen. Code, 187, subd. (a))[2]and the attempted murder of Maurice Edwards ( 664, 187, subd. (a)), finding defendant committed the offenses by personally and intentionally firing a handgun ( 12022.53, subd. (d)) and for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Defendant received a total term of 50 years to life for the murder and the firearm enhancement, plus 10 years for the gang enhancement. A concurrent term of 25 years to life was imposed for the attempted murder.[3]

In his timely appeal, defendant contends (1) his attempted murder conviction must be reversed because there was constitutionally insufficient evidence of defendants specific intent to kill Maurice; (2) the admission of testimony by Deputy Medical Examiner Vadims Poukens, as to the murder victims autopsy results, violated defendants right to confront witnesses under the Sixth Amendment and the state evidentiary law proscription against an expert witness testifying on direct examination as to the content of reports prepared by a nontestifying expert; (3) there was constitutionally insufficient evidence to support the gang enhancement as to the attempted murder of Maurice; (4) the trial courts imposition of the 10 year gang enhancement, rather than a 15 year minimum parole eligibility date, resulted in an unauthorized sentence; and (5) the court failed to credit him with the actual time he spent in custody prior to sentencing. Court agree with defendants sentencing contentions, but otherwise affirm.

Larry Williams and Rodney Davis appeal from judgments entered after a jury convicted them of second degree robbery (Pen. Code, 211), and possession of a firearm by a felon ( 12021, subd. (a)(1)).[1] Davis was also found guilty of evading an officer while operating a motor vehicle, in violation of Vehicle Code section 2800.1.[2]The jury also found true the allegation that Williams personally used a firearm in committing the robbery ( 12022.53, subd. (b)). In a bifurcated proceeding, Davis admitted two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior serious felony conviction ( 667, subd. (a)(1)). The court also found true the allegation that Williams had one prior strike conviction that also qualified as a serious or violent felony under section 667, subdivision (a)(1). Williams was sentenced to a total term of 25 years in state prison. Davis was sentenced to a total term of 16 years, 10 months. Davis asks us to independently review the sealed transcripts of the in camera hearing on his motion for a disclosure of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531. He also contends the court erred in imposing a consecutive sentence on the evading an officer count. Williams contends (1) the evidence is insufficient to support his robbery conviction; (2) the court erred in finding that his prior federal conviction for attempted bank robbery qualified as a serious or violent felony; and (3) he was erroneously sentenced to the upper term. Court conditionally reverse the judgment as to Davis and remand for a new Pitchess hearing in which the proper procedure is followed. The judgments are otherwise affirmed.