CA Unpub Decisions

After we reversed defendants second degree murder conviction[1]based on error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), the Supreme Court granted review and transferred the matter back to this court with directions to reconsider the Batson/Wheeler issue in light of People v. Avila (2006) 38 Cal.4th 491, and People v. Johnson (2006) 38 Cal.4th 1096. In accordance with People v. Johnson, we conditionally reversed the judgment and remanded the matter to the trial court to conduct a hearing at which the prosecutor would be afforded an opportunity to provide a race-neutral explanation for his use of a peremptory challenge to excuse a prospective African-American juror identified as Mr. T. The trial court conducted that hearing, and based on the prosecutors statements at that hearing, found that the prosecutor had provided a race-neutral explanation for his use of the peremptory challenge and as a result the trial court found that defendant had failed to establish purposeful discrimination. Consequently, the trial court denied defendants so-called Wheeler motion and, in accordance with the directions set out in our disposition, reinstated the judgment.

This case involves a dispute between two factions over control of a certain California nonprofit religious corporation. The corporation was originally named Buddhist Temple of Chino Hills, and later called Wat Phra Buddha Chinnaraj Buddhist Temple of Chino Hills. Its current name appears to depend upon which faction is in control. Court refer to it as the corporation.
Wat asserts: (1) the court erred in determining that the 1996 bylaws were authentic and that the corporation had members for purposes of voting requirements under the Nonprofit Religious Corporation Law; and (2) the courts ruling violates the constitutional right to the free exercise of religion. Court reject these arguments and affirm the judgment.

A jury found Donald Darrell King, defendant and appellant (hereafter defendant), guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1))[1]and unlawful possession of ammunition ( 12316, subd. (b)(1)), but acquitted him of attempted murder ( 664/187) and assault with a deadly weapon ( 245, subd. (a)). The charges all stem from an incident that occurred outside the home of defendants ex-wife. Defendant had been at the house to visit his three children, and was outside waiting for his girlfriend to pick him up when a truck pulled into the driveway. Pete Alderete got out of the truck and walked up to defendant. The two talked briefly, and then defendant and Alderete began to argue and yell at each other. When Alderetes wife, who was driving the truck, yelled at him to get back in the truck, Alderete walked to the vehicle and opened the passenger door, but did not get in. After a few minutes, Alderete walked back to defendant and continued the argument which ended when defendant suddenly pulled a handgun from the waist of his pants and shot Alderete in the neck. Defendant testified at trial that he believed Alderete had a gun so he shot him in self defense.

Defendant and appellant Robert Daniel Moore was charged with (1) possessing methamphetamine under Health and Safety Code section 11377, subdivision (a) (count 1); (2) being under the influence of a controlled substance under Health and Safety Code section 11550, subdivision (a) (count 2); and (3) resisting a peace officer under Penal Code section 148, subdivision (a) (count 3). On May 8, 2008, defendant, in propria persona, filed a notice of appeal. The notice specifies that the appeal follows a guilty plea, and is based on the denial of a motion to suppress evidence. The notice also challenges the validity of the plea. The notice additionally states that the criminal nature of charges, unresonabl[e] search and siezure [sic] as the other basis of defendants appeal. Defendants request for a certificate of probable cause was denied.

Appellant Robert Aubrey Morash, Jr. was involved in a fight instigated by brothers Randall and Matthew Clements that culminated in appellant cutting Matthew in the neck with a utility knife. Appellant was convicted of assault with a deadly weapon by means of force likely to produce great bodily injury. During the trial, the court gave the jury instructions on self-defense, including Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 3471 (CALCRIM), which told the jury that self-defense is not available to a person who engages in mutual combat or who is the first one to use physical force unless certain requirements are first met.
On appeal, appellant contends the trial court erred by instructing the jury with CALCRIM No. 3471, because the record lacks evidence that appellant was engaged in mutual combat for purposes of Californias law of self-defense. Respondent concedes the lack of evidentiary support for the instruction but asserts the error was not prejudicial. For reasons discussed below, we agree with the parties that the trial court erred in instructing the jury with CALCRIM No. 3471. Given the entirety of the record, we conclude the error was prejudicial and reversal is required. Accordingly, Court do not address appellants other contentions on appeal.

Jason Earl Bell appeals from a denial of a motion to modify the conditions of his probation. For the following reasons, Court dismiss the appeal.

On August 30, 2004, Erika Alvarez was with Victor Dianda and Carissa Madero when Dianda received a call and then drove them to a bail bonds business located approximately a block north of the jail. Madero, Dianda, and Alvarez went into a back room where Madero kneeled down in front of three syringes, tobacco, and approximately $30 worth of methamphetamine that were on the floor. Dianda gave Madero two grams of heroin which she put in a balloon. Alvarez left the building and sat in a car. Dianda and Madero soon came out of the building and opened the cars trunk. Dianda gave Madero a hammer and they both got in the car.
The judgment is affirmed.

Appellant and three accomplices robbed a Fresno bank of approximately $63,000 on August 20, 1997. He fled to Texas and was a fugitive for 10 years. In December of 2007 he returned to Fresno and turned himself in. He entered a plea of no contest to two counts of second degree robbery (Pen. Code, 211/212.5, subd. (c)), and was sentenced to two years on each count, to be served concurrently. The court awarded presentence credit for 141 days, consisting of 123 days of actual time served, plus 18 days of presentence conduct credit. Ordinarily, as we shall explain, a defendant who spends 123 days in custody prior to sentencing would receive 60 days of presentence conduct credit, for a total of 183 days of credit. In appellants case the trial court applied Penal Code section 2933.1, a section which limits the amount of credit which may be earned in some instances to 15 percent of the actual period of confinement. (Pen. Code, 2933.1, subd. (c).)
Appellant contends that the trial court erred in applying the 15 percent limitation of section 2933.1 to him in this case. Respondent concedes error. As we shall explain, the concession is well taken. Court direct the trial court to amend the abstract of judgment to change appellants award of presentence conduct credit from 18 to 60 and his total credits awarded from 141 to 183. In all other respects, Court affirm the judgment.

California Nurse Life Care Planning, Inc. (CNLCP) petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,[1] 5950, 5952; Cal. Rules of Court, rule 8.494.) CNLCP contends the WCAB erred and abused its discretion by not awarding reimbursement for a life care plan prepared for purposes of obtaining a settlement in a workers compensation action involving a catastrophically injured employee. Finding no evidence or legal support for the proposition that the report was required or necessary in the proceedings, Court conclude the WCAB reasonably denied the lien within its discretionary powers.

Dianna Fain (Petitioner) asks this court to inquire into and determine the lawfulness of a decision of the Workers Compensation Appeals Board (WCAB) where the WCAB did not apply a peace officer statutory presumption of compensability and concluded her husbands fatal cancer did not arise out of and occur in the course of his employment. (Lab. Code, 3212.1.) Not finding sufficient basis upon which to invoke the presumption, Court agree with the WCAB.

Defendants David Jacinto Salinas and Manuel Louis Madril, who are admitted Norteo gang members, were with a group of men in a park when they robbed two teenagers who happened to walk by. Defendants then stole a minivan while attempting to escape after the robbery. The minivan sped through a red light and hit a car in the intersection, causing the death of the driver of that car. As a result, defendants were convicted after jury trial of murder during the commission or attempted commission of a robbery (Pen. Code, 187),[1] two counts of second degree robbery ( 211, 212.5, subd. (c)), and vehicle theft (Veh. Code, 10851, subd. (a)). The jury also found as to both defendants that the robberies and vehicle theft were committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1)(C)), and as to Salinas only that he personally used a deadly or dangerous weapon, a bottle, during the commission of one of the robberies ( 12022, subd. (b)(1)). The court found that Salinas had a prior serious felony conviction that also qualified as a strike ( 667, 1170.12). After the court denied Salinass request to dismiss the strike under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced him to the indeterminate term of 55 years to life consecutive to the determinate term of 22 years. The court sentenced Madril to the indeterminate term of 25 years to life consecutive to the determinate term of 13 years.
Salinas has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, defendant seeks a resentencing hearing. Court have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)

In case No. FF512185, on July 12, 2007, defendant James Torres[1] pleaded no contest to assault with intent to commit rape (Pen. Code, 220).
In case No. CC756869, defendant pleaded no contest to driving under the influence (DUI), and admitted having three or more prior convictions, having a blood alcohol level of .15 percent or higher, and being out on bail or on his own recognizance at the time of the offense (Veh. Code, 23152, subd. (b), 23550, subd. (a), 23578; 12022.1). He also pleaded no contest to misdemeanor driving on a suspended license, and admitted having two prior convictions (Veh. Code, 14601.2). Court conclude that defendant is not entitled to credit for time spent in the City Team program because the court did not order defendants participation in a residential treatment program and he entered into the City Team program on his own initiative. Therefore, after correcting a clerical error, Court will affirm the judgment as modified.

Petitioner Jesse Andrew Amaya entered into a plea agreement with real party the People of the State of California (the People) under which he would plead no contest to misdemeanor vandalism (Pen. Code, 594) and admit a gang allegation (Pen. Code, 186.22, subd. (d)) in exchange for a sentence of 180 days in jail with all but 45 days of the jail term suspended. After the trial court had accepted Amayas plea and admission, but before sentencing, the People moved to vacate the plea and admission on the ground that the agreed sentence was illegal. The trial court granted the Peoples motion, and Amaya filed this petition for a writ of mandate in which he seeks to overturn the trial courts ruling. Court conclude that the trial court erred in granting the Peoples motion because the agreed sentence could be lawfully imposed. Accordingly, Court issue a peremptory writ of mandate.

Petitioner Eric Saternino Hernandez petitions for a writ of prohibition or mandate after his Penal Code section 995 motion was denied. Hernandez is charged by information with attempted lewd or lascivious conduct (Pen. Code, 288, subd. (a), 664) and attempted kidnapping to commit a sexual offense (Pen. Code, 209, subd. (b)(1), 664). He maintains that the information should be set aside because the evidence at the preliminary examination was not sufficient to support the magistrates order holding him to answer on these charges. Court agree and issue a peremptory writ of prohibition restraining the respondent court from taking any action other than dismissing the information.