CA Unpub Decisions

Defendant Gerard Mangubat Posadas was convicted of robbery, possession of a firearm and ammunition, and assault with a semiautomatic firearm. Defendant appeals from the judgment, arguing his statements made during a police interview should have been suppressed. Court conclude defendant was not in custody while he was being questioned by the police, and the standard warnings under Miranda v.Arizona (1966) 384 U.S. 436 (Miranda) were therefore not necessary. The Miranda warnings given to defendant after he was arrested apprised him of the nature of his rights and the consequences of abandoning them, making his further statements admissible as well. Court therefore affirm.

Penal Code section 2713.1 (all further statutory references are to this code unless otherwise stated) provides that upon release from prison, a prisoner is to be paid $200. The question before us is whether that $200 allowance is owed to a prisoner who, upon being paroled, is not released into the community but is transferred to another law enforcement agency in California to be held for evaluation and possible trial as a sexually violent predator under Welfare and Institutions Code section 6600 et seq. (SVPA). Court conclude that California Code of Regulations, title 15, section 3075.2, subdivision (d) (title 15, section 3075.2, subdivision (d)), which would prohibit payment, is void to the extent explained below. Under section 2713.1 petitioner is entitled to the allowance and Court grant the petition.

After appellant S.F. admitted that he committed an assault with a deadly weapon, the juvenile court adjudicated him to be a ward of that court. He was committed to the Division of Juvenile Facilities (DJF) (formerly the California Youth Authority (CYA)). His petition for rehearing was denied. S.F. appeals, contending that the juvenile court erred by ordering this commitment and by denying his petition for rehearing. Court affirm the commitment order and the order denying rehearing.

Defendants A.G. Edwards & Sons, Inc. (A.G. Edwards), and Douglas Potter (Potter) appeal from a stipulated judgment confirming an arbitration award in favor of plaintiff Sandra Crook. Defendants contend the trial court erred in denying their motion to enforce a settlement reached during a prearbitration mediation. Court affirm.

David Michael Pacheco, Anthony Raymond Villa, and Adolfo Villegas, Jr. appeal from the judgment entered following their conviction by a jury of the attempted murder of Randall Shoemaker (count 1) and Darryl Yon (count 2) (Pen. Code, 664, 187, subd. (a));[1]kidnapping to commit robbery (count 3) ( 209, subd. (b)(1)); second degree robbery (count 4) ( 211, 212.5); carjacking (count 5) ( 215, subd. (a)); and discharging a firearm from a vehicle (count 6). ( 12034, subd. (c).) The jury found true allegations that the attempted murder of Yon was willful, deliberate, and premeditated. The jury also found true allegations that all of the crimes had been committed for the benefit of a criminal street gang. ( 186.22, subd. (b).) In addition, as to all of the crimes except the attempted murder of Yon by Pacheco, the jury found true allegations that either the defendant or a principal had personally and intentionally discharged a firearm, which had proximately caused great bodily injury. ( 12022.53, subd. (d) & (e)(1).). As to the attempted murder of Yon by Pacheco, the jury found true an allegation that a principal had personally and intentionally discharged a firearm. ( 12022.53, subd. (c) & (e)(1).) The trial court imposed prison terms as follows: Pacheco, 186 years to life; Villa, 142 years to life; and Villegas, 191 years to life.
Based on Towne and People v. Black (2007) 41 Cal.4th 799 (Black II), both of which were decided after our original decision, we conclude that the trial court did not err in imposing the upper term on counts 1 and 6 as to Pacheco and Villegas. Court have revised part IX of our opinion accordingly. Except for that revision and a corresponding change in the disposition, this opinion is the same as the previous one.

Ernie Joe Librado Santos appeals a judgment after his conviction of kidnapping for the purpose of forcible rape, forcible oral copulation or penetration with foreign object (Pen. Code, 209, subd. (b))[1] (count 1); forcible rape ( 261, subd. (a)(2)) (count 2); assault with intent to commit rape ( 220) (count 3); forcible oral copulation ( 288a, subd. (c)(2)) (count 4); genital penetration by a foreign object ( 289, subd (a)(1)) (count 5); dissuading a witness ( 136.1, subd. (c)(1)) (count 6); criminal threats ( 422) (count 7); and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (count 8). The court sentenced Santos to an aggregate term of 333 years to life.
Court conclude that: 1) the evidence was sufficient to support the conviction for forcible rape; 2) Santos possessed a useable quantity of methamphetamine; 3) admission of evidence about Santos' prior uncharged sex offenses was permissible; 4) the court properly instructed the jury with CALCRIM No. 1191; 5) it committed harmless error by instructing jurors that simple kidnapping was a sexual offense under Evidence Code section 1108; 6) its CALCRIM No. 226 credibility instruction was proper; 7) Santos received effective assistance of counsel; but 8) the court erred by imposing a consecutive sentence for kidnapping for rape (count 1); and 9) it erred by imposing consecutive sentences on counts 2, 4 and 5 under section 667.6 without a statement of reasons. Court vacate the sentence, but in all other respects we affirm.

Vern Kalshan appeals a judgment after jury verdict denying his claim for damages for medical malpractice against respondent Richard G. Pollak. He asserts several errors in jury instructions. Court affirm.

Appellant McQuire Holdings, Inc., a Nevada corporation, brought an action against multiple defendants, including respondent Washington Mutual Mortgage Securities Corporation, arising from the failure of a highly speculative venture. Respondents motion for summary judgment was granted. Court affirm.

David Jimenez appeals from the judgment following his guilty plea to possession of ammunition by a felon. (Pen. Code, 12316, subd. (b)(1).)[1] The trial court sentenced Jimenez to state prison for the low term of 16 months and ordered the term was to be served consecutively to a period of confinement imposed for a parole violation in another case. Jimenez contends that the sentence is unauthorized because a sentence may not be imposed to run consecutively to time served for a parole violation. We agree that the sentence cannot be ordered to run consecutively with confinement after the revocation of parole, but that Jimenez waived the claim in his plea bargain. Court affirm.

Appellant Lilavati Sharma appeals from a postjudgment order entered on May 16, 2007, directing the clerk of the court to execute and enter satisfaction of judgment in this proceeding for dissolution of marriage. Sharma contends: 1) she is entitled to interest, and therefore, the judgment has not been satisfied; 2) she is entitled to interest on temporary support that was paid late, as well as unpaid temporary support and interest; 3) the May 16, 2007 order conflicts with an order entered on May 2, 2007; 4) she was denied due process when the trial court heard the matter on May 2, 2007, without notice or service of process; 5) the trial court abused its discretion by denying her oral request on June 13, 2007, for funds to retain an attorney; and 6) the trial court deprived her of due process by failing to consider evidence submitted in support of a motion for reconsideration. We conclude substantial evidence supports the trial courts findings that Sharma was served with notice of the proceedings and the judgment has been satisfied in full. There is no conflict in the courts orders and Sharmas contentions concerning subsequent proceedings are not properly before this court. Therefore, Court affirm.

Edward Dwayne Lewis appeals from the judgment entered after he pleaded no contest to forcible rape, contending that his arrest was based on DNA evidence taken from him years earlier in violation of his constitutional right against unreasonable government searches and seizures. Court agree with the several California appellate court decisions that have rejected such contentions and affirm the judgment.

This appeal arises out of an incident on December 30, 2004, in which Carlos Pinon was fatally shot and Juan Beltran was seriously wounded while standing next to Jose Morales. Defendants Julian Martinez and Carlos Palma were charged with murder in violation of Penal Code section 187, subdivision (a)[1](count 1), attempted willful, deliberate, and premeditated murder in violation of sections 664 and 187, subdivision (a) (counts 2 and 3), and shooting at an inhabited dwelling in violation of section 246 (count 4).[2] It was alleged as to all counts that defendant Palma personally and intentionally fired the handgun to cause the great bodily injuries and death to the victims ( 12022.53, subds. (b)-(d)), and that the offenses were committed by defendants for the benefit of a criminal street gang ( 186.22, subd. (a)). The jury found defendants guilty of the murder of Pinon, fixing the offense as murder in the first degree; the lesser included offense of attempted voluntary manslaughter of Beltran; and the offense of shooting at an inhabited dwelling. As to the attempted murder of Morales, the jury acquitted defendants of both the charged and the lesser included offenses. The jury found the special firearm allegations true as to defendant Palma, but found the gang allegations not true as to both defendants. Court modify the abstracts of judgment as requested but otherwise affirm the judgments in all other respects.

The record reflects Dewey previously has litigated her claim of wrongful foreclosure and that claim was resolved adversely to her. Court conclude Deweys complaint fails to state a cause of action and is incapable of being amended to state a claim. Therefore, the judgment of dismissal is affirmed.

The jury found defendant Aubrey Brown guilty of second degree robbery of T.C. (Pen. Code, 211).[1] Defendant was placed on formal probation for a period of three years, with 365 days in county jail as a condition of probation. Defendant timely appealed. Defendant contends the judgment should be reversed because the trial court abused its discretion in admitting evidence of a later incident and committed instructional errors. Defendant further contends substantial evidence does not support the verdict. Court reject the arguments and affirm the judgment.