CA Unpub Decisions

Jaime Farfan Garcia appeals the judgment following his conviction for willful, deliberate and premeditated attempted murder (Pen. Code, 664, subd. (a)/187),[1] criminal threats ( 422), attempted criminal threats ( 664/422), residential burglary ( 459/460, subd. (a)), felony child abuse ( 273a), and battery with serious bodily injury ( 243, subd. (d)). The jury found that Garcia inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)), and used a knife in the attempted murder and other offenses ( 12022, subd. (b)(1)). He was sentenced to prison for the determinate term of nine years four months, followed by an indeterminate term of life with the possibility of parole.
Garcia contends there was insufficient evidence of willful, deliberate and premeditated attempted murder, or of the child abuse offense or domestic violence enhancement. He also claims the trial court erred by failing to instruct the jury that provocation insufficient to reduce attempted murder to attempted manslaughter may reduce willful, deliberate and premeditated attempted murder to attempted murder, and by instructing the jury that mere words cannot justify an assault or battery. Court affirm.

A landlord successfully evicted a long-term tenant from a rent-controlled apartment, ostensibly to free the unit for occupancy by the landlords daughter. The landlords daughter never moved in, and the tenant sued the landlord for fraud and unlawful eviction, and failure to pay relocation expenses. The landlord responded with a special motion to strike (Code Civ. Proc., 425.16), arguing the tenants complaint arose from the landlords acts or statements in furtherance of her constitutional rights. The trial court agreed, and granted the motion. Court conclude the tenants claims did not arise from a protected activity they are based on the landlords violation of rent control laws, not on actions in furtherance of the right of free speech or petition. Accordingly, Court reverse.

Appellants Stanford Cecil Jackson and Joshua Kemonie Greer-Warren, who are brothers, were convicted of participating in two armed robberies and one attempted armed robbery, with related assault and weapons charges. The crimes occurred in Long Beach on the evening of November 5, 2006. Appellants were 19 and 20 years old, respectively, on that date, and had little or no prior criminal history. Jackson was sentenced to 29 years four months in prison. Greer Warren was sentenced to prison for 19 years eight months.
Court reverse some of the counts based on prejudicial error at the Evidence Code section 402 hearing, affirm some of the counts, and remand for additional proceedings.

Defendant and appellant Domonick Guy appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of petty theft with a prior. He challenges the denial of his motions for new appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and for self representation (Faretta v. California (1975) 422 U.S. 806 (Faretta)) as untimely. He also contends and the People concede that one of the convictions for petty theft with a prior must be reversed and that defendants presentence custody credits were miscalculated. We reverse one of the petty theft convictions and modify the judgment to correctly reflect the presentence custody credits to which defendant is entitled; as so modified, Court affirm the judgment.

Appellant and defendant below Felix Gonzales appeals from the judgment entered following a jury trial resulting in his conviction of possession of cocaine base for sale. The issue presented on appeal is whether the prosecution presented sufficient evidence to support the jurys finding that appellant had the specific intent to sell the cocaine base, a requisite element of the charge, and whether the conviction was thereby a violation of appellants due process rights. Finding evidence presented below sufficient to support the jurys judgment that appellant had the requisite intent, Court affirm.

Appellant Maurice Pierre Olivier was convicted of one count of first degree residential burglary and numerous prior convictions. He was sentenced under the Three Strikes law to 25 years to life, plus 20 years for four 5-year prior conviction enhancements.[1] He contends that the trial court abused its discretion when it (1) denied his request for a pre-preliminary hearing lineup; and (2) imposed a restitution fine in the maximum amount, $10,000, without considering his ability to pay. Court find that the first issue lacks merit and the second issue was waived for lack of an objection. Court therefore affirm.

Darvell Larick Powell appeals from his conviction of, corporal injury to a spouse, cohabititant, or childs parent, and a lesser offense of child abuse. Appellant contends that CALCRIM 300 improperly conveyed to the jury the defense may have an obligation to produce evidence in violation of the state and federal constitution (by instructing the jury the defense need not produce all relevant evidence, the jury might be left with the belief the defense is required to produced some evidence). Court conclude that the instruction was without error. Accordingly, Court affirm.

Frank Hernandez Lopez appeals from a jury verdict finding him guilty of commercial burglary and petty theft by larceny. He argues that the trial court should have instructed the jury on theft by false pretenses. Because we conclude that sufficient evidence supported the elements of theft by larceny, Court affirm his conviction. Court modify the judgment to reflect 159 days of presentence custody credits.

A modification decision.

After a final judgment following conviction by jury verdict, Edward Lyon (appellant), contends the trial court erred when it allowed a prosecution witness to give his opinion on a matter that the jury could observe for itself, in violation of his Fifth and Fourteenth Amendment rights to due process. He also complains that the trial court erred in allowing inadmissible lay opinion testimony. Court affirm.

A wife reported an assault by her husband to the police, and the husband was charged with, tried for and ultimately acquitted of the crime of spousal battery. The husband later brought a civil action against the wife, alleging, among other things, a claim for malicious prosecution. He alleged his wife made false accusations that led to his arrest and prosecution. The wife filed a special motion to strike the complaint, which the trial court granted. (Code Civ. Proc., 425.16.) The husband contends the motion should have been denied. Court concur.

The City of Los Angeles (City) petitions for a writ of review of a decision by the Workers Compensation Appeals Board (WCAB). The City employed respondent Alex Johnson, who sustained several injuries at work and received workers compensation awards for permanent disability. Johnson claimed additional injuries at work for which he received a joint award of permanent disability. Johnson petitioned to reopen the joint award and was awarded increased permanent disability without apportionment by the WCAB. The City contends that the WCAB lacked subject matter jurisdiction to award the increased permanent disability because Johnson filed the petition to reopen more than five years after the date of injury under the Labor Code.[1] The City also maintains that even if the WCAB had subject matter jurisdiction, the legislative changes of Senate Bill No. 899 (20032004 Reg. Sess.) that were enacted on April 19, 2004 (Stats. 2004, ch. 34, 49) required the increased permanent disability to be apportioned by the permanent disability awarded prior to the joint award or the disability caused by degenerative disease of the knees. Accordingly, the WCABs decision is affirmed in part and annulled in part, and the matter is remanded for further proceedings regarding apportionment of the increased permanent disability.

This court often reviews Pitchess motions.[1] Sometimes the appeal asks that we review the trial court's refusal to conduct an in camera hearing; other times the appellant requests our review of such a hearing when the trial court has declined to order disclosure. Here, appellant Elbert Lane filed an affidavit that was found to be adequate, the trial court did conduct an in camera hearing, and disclosure of the officer's records was made. Nonetheless, Lane asks that we determine if the court went far enough. Court do; it did. Court affirm.

Richard M. Burk contends that the trial court erred in granting respondent Arcadia Police Departments[1]anti-SLAPP (Strategic Lawsuit Against Public Participation) motion striking the second and fourth causes of action of his complaint. These causes of action alleged that representatives of the Department slandered Burk and damaged his career as a firefighter for Los Angeles County. The Department contends that the statements at issue were protected speech and the trial court ruled properly. Court find no error and affirm.