CA Unpub Decisions

After his first trial ended in a deadlocked jury, Eugene Barrons (appellant) second jury convicted him of first degree murder (Pen. Code, 187, subd. (a))[1](count 1); attempted willful, deliberate, premeditated murder ( 664, 187, subd. (a)) (count 2); assault with a firearm ( 245, subd. (a)(2)) (count 3); and shooting at an occupied motor vehicle ( 246) (count 4). With respect to counts 1 and 2, the jury found true the allegations that appellant personally used and intentionally discharged a handgun, which proximately caused great bodily injury and death to the victims. ( 12022.53, subds. (b), (c), (d), and (e)(1).) With respect to count 3, the jury found true the allegation that appellant personally used a firearm. ( 12022.5.) With respect to all counts, the jury found true the allegation that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. ( 186.22, subd. (b)(1)(A).)
Appellant appeals on the grounds that: (1) the trial courts admission of evidence that appellant was presently a narcotics shot caller in jail for the Mexican Mafia organization constituted an abuse of discretion, and (2) the trial courts admission of the Mexican Mafia evidence violated federal due process. The judgment is affirmed.

Plaintiff, a police officer with the Los Angeles Police Department (Department), was discharged after he tested positive for tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. He challenged his termination administratively and lost. Plaintiff then filed a petition for a writ of administrative mandate in the trial court, arguing that he had not used marijuana but had tested positive for THC because his wife used hemp seeds and oil in preparing their food. The trial court, reviewing the evidence independently, disagreed and denied the petition.
Court affirm the judgment because substantial evidence supports the trial courts decision.

A jury convicted appellant Joseph Harmon of assault by means likely to produce great bodily harm (Pen. Code, 245, subd. (a)),[1] and found true the allegation that in the commission of the assault he personally inflicted great bodily injury in circumstances involving domestic violence ( 12022.7, subd. (e)). The jury also convicted Harmon of mayhem ( 203). Harmon appeals from the judgment claiming that the trial court erred in (1) imposing upper terms on the convictions and enhancement, (2) failing to stay the concurrent term imposed on the mayhem conviction, (3) imposing a $20 DNA penalty assessment, and (4) failing to have the abstract of judgment accurately state his conviction was for assault by means of force likely to produce great bodily injury. Harmon also contends trial counsel provided ineffective assistance by failing to object to the courts improper use of the factual elements of the crimes and enhancement to impose the upper terms. We conclude the error in imposing upper terms on the convictions and enhancement was harmless. Other of Harmons claims of sentencing error, however, have merit and we will (1) modify the judgment to stay the concurrent term on the mayhem conviction, (2) strike the $20 DNA assessment, and (3) correct the abstract of judgment to accurately reflect that the assault conviction was by means likely to produce great bodily harm. We will also correct the judgment to impose an additional court security fee on the second conviction. As so modified, Court affirm.

A jury convicted Jesus Zapata (appellant) of attempted willful, deliberate, and premeditated murder (Pen. Code, 187, subd. (a), 664) (count 1) and found true the allegations that appellant had personally used and personally and intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), and (d). In count 2, the jury convicted appellant of second degree robbery ( 211) and found true the same firearm allegations. The trial court found true the allegations that appellant had suffered 11 prior serious felony convictions ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i); 667, subd. (a)).
Appellant appeals on the grounds that: (1) the trial court erred by failing to stay the sentence on count 3 pursuant to section 654, and (2) in the alternative, the federal constitutional right to trial by jury as set out in Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi) was violated by the trial courts determination that appellant had separate objectives in the commission of the two crimes of which he was convicted.

A creditor sued a debtor in the trial court. They resolved their differences through a stipulation that established a payment schedule and provided for the entry of judgment in a predetermined amount in the event of a default. The debtor defaulted, and the trial court entered judgment in accordance with the stipulation. COURT too conclude that the amount of the judgment was reasonably related to the actual damages incurred by the creditor, such that the stipulated judgment is valid. Court therefore affirm.

Felix Hernandez appeals from the judgment entered following a jury trial in which he was convicted of nine counts of committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd (a)), two counts of sexual penetration against a child under the age of 16 (id., 289, subd. (i)), two counts of sexual penetration against a victim under the age of 18 (id., 289, subd. (h)), and one count of continuous sexual abuse (id., 288.5, subd. (a)). (Further statutory references are to the Penal Code.) As to all counts, the jury further found that the statute of limitations had been extended under section 803, subdivision (f). Defendant contends that six of the lewd act convictions (counts 16) must be reversed because extension of the statute of limitations was not supported by evidence of substantial sexual conduct. Court affirm.

The Los Angeles County Department of Children and Family Services (DCFS) appeals from an order of the juvenile court granting the section 388[1] petition of mother to place her child in her care and custody (B205370). In a separate appeal, father appeals from the courts order appointing counsel to represent him in the section 388 proceedings (B206464) and the paternal grandfather appeals from the courts exercising subject matter jurisdiction over the father and the child (B206464). Court affirm the orders.

Father, T.D., appeals from the judgment terminating parental rights to his son D.D. (Welf. & Inst. Code, 366.26). He challenges the sufficiency of the evidence of adoptability and contends the trial court erred by not considering a permanent plan other than adoption by the childs paternal grandmother. Court affirm.

Plaintiff Ralph Renna used 124 TreeCure, a product sealant sold by defendant The Henry Company (THC), to seal grafts on approximately one-half of the apple trees in his orchard. Relying on information obtained at THCs booth at an agricultural show, Renna applied only one coat of 124 TreeCure to the grafts. After the sealant cracked and a number of grafts failed, Renna removed his entire orchard. He sued THC for strict products liability, negligence and negligent misrepresentation. On the negligent misrepresentation cause of action the jury verdict favored Renna, set damages and apportioned fault between Renna and THC. Dissatisfied with the damage award, Renna moved for a new trial. The court denied Rennas motion for new trial and because the jury award was less than THCs Code of Civil Procedure 998 settlement offer, Rennas recovery was reduced by THCs costs. The net result was a judgment for THC. Renna appeals from the judgment asserting that prejudicial attorney misconduct and trial court error excluding certain evidence negatively impacted the jurys award of damages. Court affirm the judgment.

This is a Peoples appeal from an order after judgment (Pen. Code, 1238, subd. (a)(5)) limiting the means of recovery of restitution. The restitution was awarded as a condition of an order of probation following a plea of nolo contendere to a charge of welfare fraud. (Welf. & Inst. Code, 10980, subd. (c)(2).)[1] The trial court limited recovery of the award for the value of food stamps overissued to defendant Pahoua Lo based on a determination by the California Department of Social Services (DSS) that the overpayment under food stamp regulations was caused by administrative error. The Attorney General contends the trial court erred because: (1) there is no evidence to support a finding that the overissuance of food stamps was determined by DSS to have been due to administrative error; and (2) defendants plea precludes such a finding being legally correct. Court shall affirm the order limiting the means of recovery of restitution.

R. J., mother of the minor (mother), appeals from juvenile court orders declaring the minor to be a dependent of the court and removing him from mothers physical custody. (Welf. & Inst. Code, 360, 361, 395.) Mother contends the jurisdictional findings and removal orders were not supported by substantial evidence. Court affirm.

Defendant Jason Thomas Gaul was sentenced to four concurrent two-year prison terms for his convictions of taking a vehicle without consent (Veh. Code, 10851, subd. (a)), second degree commercial burglary (Pen. Code, 459), grand theft from a person ( 487, subd. (c)), and first degree residential burglary. ( 459.) Defendants sole claim on appeal is that under the plea bargain related to the first degree residential burglary charge he should have received the same 235 days of credit for time served as he did for his other three convictions. Court disagree. However, we have noticed an error in the abstract of judgment in case No. SF106182A. Court order correction of the abstract for that case, but otherwise affirm the judgments.

A jury convicted Vincente Edward Alves of first degree murder (Pen. Code,[1] 187, subd. (a)) and discharging a firearm at an occupied motor vehicle ( 246). The jury also found that the murder was willful, deliberate and premeditated ( 189) and was committed by means of lying in wait ( 190.2, subd. (a)(15)), and that Alves personally discharged a firearm causing death ( 12022.53, subd. (d)). The trial court sentenced Alves to life in prison without the possibility of parole.Alves raises three contentions on appeal. First, he contends that the trial court abused its discretion by precluding a defense psychologist from informing the jury that prior to the murder two other mental health professionals had diagnosed Alves with major depression. Second, Alves argues there is no substantial evidence in the record to support the jury's lying-in-wait finding. Third, Alves argues, and the Attorney General agrees, the trial court erred in imposing a parole revocation fine because, given Alves's sentence, he will not be eligible for release on parole. (See 1202.45.) Court agree that the fine was erroneously imposed. Court, therefore, strike the parole revocation fine. Court conclude that Alves's other contentions are without merit and affirm the judgment in all other respects.

Shawn E. appeals an order denying his Welfare and Institutions Code section 388[1]petition in which he requested modification of previous orders that placed two of his children, Erica E. and Alexander E. (Alex) (together, the children), with their mother, Ruth S. He also appeals an order awarding sole legal and physical custody of the children to Ruth, an order terminating juvenile court jurisdiction and an order denying his request for a continuance. Court affirm.