CA Unpub Decisions

Under a negotiated settlement, defendant Joel Pintor pleaded no contest to assault with force likely to produce great bodily injury, a felony, with the understanding that he would be placed on probation and could seek to have the conviction deemed a misdemeanor. (Pen. Code, 245, subd. (a)(1).)[1] At sentencing, the court placed him on probation and imposed certain conditions, including that he submit to warrantless searches and not possess deadly or dangerous weapons.
On appeal from the judgment (see 1237, subd. (b)), defendant claims the court abused its discretion in imposing the search condition and prohibiting possession of deadly or dangerous weapons. Court will affirm the judgment.

After a mistrial and before a second trial, Adam Almieiro[1]admitted he had previously been convicted of a federal bank robbery that qualified as a prior serious felony conviction (Pen. Code,[2] 667, subd. (a)(1)), a violent prison prior conviction ( 667.5, subd. (a)), and also a strike under the Three Strikes Law ( 667, subd. (b)-(i), 1170.12). A jury subsequently convicted Almieiro of two counts of robbery ( 211) and found true allegations that he personally used a firearm in the commission of each crime ( 12022.53, subd. (b)). After denying motions for a new trial and to dismiss the strike prior, the trial court sentenced Almieiro as a second striker to prison for a total term of 26 years and four months. Court affirm as modified to strike rather than stay Almieiro's prison prior enhancement and to correct the abstract of judgment to reflect he was sentenced under the two strike provisions of the Three Strikes law.

A jury convicted Theodore Wesley Swain of fraud in the offer of securities (Corp. Code, 25401 and 25540, subd. (b)[1]; counts 2, 3, 5, 6, 8, 9, 11, 13, 14, 16, 17, 18, 20, 22, 27); grand theft (Pen. Code, 487 subd. (a); counts 4, 7, 10, 12, 15, 19, 21, and 26) engaging in fraudulent securities schemes ( 25541 and 25540; counts 28-33); and theft against elders (Pen. Code, 368, subd. (d); counts 10, 15, and 19.) The jury found true allegations that his takings exceeded respectively $100,000 (Pen. Code, 1203.044 subd. (d); 1203.45; counts 4, 7, 12, 21); $500,000 (Pen. Code, 186.11, subd. (a)(2); counts 2-22; 26-33) and $2,500,000 (Pen. Code, 12022.6, subd. (a)(4); counts 2-22; 26-33.) The court sentenced Swain to 24 years in prison as follows: three years on count 3; eight consecutive one-year terms on counts 5, 8, 11, 13, 16, 20, 22, and 27; six consecutive one-year terms on counts 28 through 33; three consecutive years for the section 186.11, subd. (a)(2) enhancement and four consecutive years for the section 12022.6 subd. (a)(4) enhancement. Swain contends: (1) the trial court prejudicially erred in failing to sua sponte instruct regarding unanimity; (2) insufficient evidence supported the count 33 conviction and (3) under section 654, the trial court erred in imposing consecutive sentences on counts 2, 5, 8, 11, 13, 16, 20 and 22 and, separately, on counts 28 through 33. Court affirm the judgment.

A modification decision.

Defendant Luis Antonio Jaimes appeals from the extension of his Mentally Disordered Offender (MDO) commitment. He argues he was denied due process when his trial, without good cause, was delayed for 344 days after his release date on the petition for continued involuntary treatment. He further argues he was denied a fair trial when the staff psychiatrist testifying for the prosecution repeatedly violated rulings excluding reference to previous findings of MDO status. Court agree with defendants first contention, and Court will reverse on that basis. Court therefore need not address defendants second contention.

After the court entered a judgment of default and granted a writ of execution against defendant Aqua Farming Tech., Inc., Aqua filed a request for an order to shorten the time for a hearing on its proposed motion to set aside the default and to stay the writ of execution. The court granted the motion. Plaintiffs Rudy Hilado and Filipina Hilado (collectively, plaintiffs) appealed (case No. E046093). Shortly thereafter, Aqua filed its motion to set aside the default alleging that plaintiffs had failed to properly serve it. The court granted the motion on the ground that [Aqua] was not properly served. Plaintiffs appealed that order (case No. E046576); this court consolidated the appeals.

Plaintiffs contend that because a judgment of default had been entered as to Aqua, Aqua had no standing to request an order shortening the time for hearing its proposed motion to set aside the default or to stay the writ of execution; thus, plaintiffs maintain that the court lacked authority to rule on Aquas request. Plaintiffs additionally contend that the court abused its discretion in setting aside the default judgment because Aqua had been served with the summons and complaint and had actual notice of them. Aqua responds that both orders from which plaintiffs appeal are nonappealable. Regardless, Aqua contends that the court had authority to rule on its request to shorten the time to hear its proposed motion to set aside the default and stay the writ of execution. Moreover, Aqua contends the court acted within its discretion in granting the motion to set aside the default. Court reject Aquas contention that the orders are not appealable. Moreover, Court hold that the court did have authority to rule on Aquas request. Additionally, court hold that the trial court acted within its discretion in granting Aquas motion to vacate the default. Thus, we affirm the judgment in full.

On May 13, 2008, the Riverside County District Attorney filed an amended petition pursuant to Welfare and Institutions Code section 602, alleging that T.A. (minor) committed an assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a)(2)(a), and that he willfully defaced property with graffiti, in violation of section 594, subdivision (b). The petition further alleged a gang enhancement under section 186.22, subdivision (b), for the assault with a deadly weapon charge. Following a contested jurisdictional hearing on June 12, 2008, the allegations were found true. The minor was declared a ward of the court, placed on probation, and released to the custody of his mother. Minor appeals, contending the evidence was insufficient to support the assault with a deadly weapon charge and the gang enhancement, and the juvenile court erred in setting the maximum term of confinement.

A jury convicted defendant and appellant Jashon Bernard Johnson of misdemeanor assault (Pen. Code, 240, count 1),[1]assault by means of force likely to result in great bodily injury ( 245, subd. (a)(1), count 2), and misdemeanor vandalism ( 594, subd. (b)(2)(A), count 3). As to count 2, the jury also found true the allegations that defendant committed the crime in furtherance of a criminal street gang ( 186.22, subd. (b)(1)(A)) and personally inflicted great bodily injury upon the victim ( 12022.7, subd. (a)). The trial court sentenced him to a total term of nine years in state prison and awarded him 156 days of actual custody credits plus 22 days of conduct credit, for a total of 178 credits. On appeal, defendant contends that: 1) there was insufficient evidence to support the allegation that he personally inflicted great bodily injury upon the victim in count 2; and 2) the court miscalculated his custody credits. The People concede, and Court agree, that the court miscalculated the custody credits. Otherwise, Court affirm.

Plaintiff Alamo Recycling, LLC (Alamo) contends the trial court abused its discretion in granting the motion of defendants San Bernardino Trucking, LLC (SB Trucking) and Abad Rodriguez (Rodriguez) (herein collectively referred to as Defendants) to disqualify Alamos counsel. Court affirm.

Plaintiff Violetta Spears appeals from judgment following a jury verdict in favor of defendants Walgreens, Inc. and Steven Berchenko. Spears contends the trial court erred in (1) bifurcating the issues of liability and damages and excluding evidence of damages in the liability phase; (2) its instructions to the jury on false imprisonment; (3) denying her motion for leave to amend her complaint to add a cause of action for sexual harassment; and (4) various rulings on motions in limine. Court find no error, and Court affirm.

While imprisoned at Ironwood State Prison, defendants Robert Pedro Espinoza and Walter Mauricio Vanegas, along with a number of other inmates, were involved in an attack on prison guards. They were convicted of one count each of attempted battery by a prisoner on a nonprisoner. On appeal, they contend as follows:
1. Vanegas contends that the evidence was insufficient to support his conviction for attempted battery on a correctional officer.
2. Vanegas contends that the trial court erred by failing to instruct on the defenses of necessity and duress.
3. Espinoza contends the trial court abused its discretion by refusing to strike two of his prior serious and/or violent felony convictions.
4. Espinoza contends the trial court erred by delegating the award of presentence custody credits to the probation department and that it thereafter erroneously determined he was entitled to no credits.

Petitioner and appellant Jilan C. Miller appeals from a judgment of dissolution of marriage between her and respondent Parker T. Miller.[1] She contends the evidence was insufficient to support the trial courts finding that an oral modification changed a previous written agreement between her and Parker concerning ownership of real property. She also contends the trial court abused its discretion in the award of spousal maintenance and in awarding her only $10,000 in offset credit towards her attorney fees. Court find no error, and we affirm.

In December 2006, defendant, James Bye, was charged by Information with embezzlement (Pen. Code, 503),[1]during which he took property valued at over $50,000 ( 12022.6, subd. (a)(1)).[2] Following numerous continuances, on July 15, 2008, the trial court granted defendants motion to dismiss the Information due to a violation of his right to be brought to trial within 60 days of arraignment, having concluded that court congestion did not constitute good cause to continue trial beyond the statutory period. The same day, the People recharged defendant under a new case number. The People appealed the dismissal, and, while this appeal was pending, the new case went to preliminary hearing, whereupon the magistrate dismissed it due to insufficient evidence. Court conclude that the dismissal was not in error. The facts concerning the crime are irrelevant to this appeal.

Defendant James Leon Garcia asserts three arguments challenging the constitutionality of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6601 et seq.):[1] (1) the SVPA violates equal protection guarantees because it treats individuals committed as sexually violent predators (SVPs) differently from individuals who have been civilly committed as mentally disordered offenders (MDOs) (Pen. Code, 2960 et seq.) and persons found not guilty of a crime by reason of insanity (NGIs) (Pen. Code, 1026 et seq.); (2) the SVPA violates due process by requiring a person committed as an SVP who has not been authorized to petition for release to prove that he or she is not an SVP; and (3) the SVPA violates equal protection guarantees by treating committed individuals who have not been authorized to petition for release differently from those who have been so authorized. Court reject these arguments and affirm the judgment.