CA Unpub Decisions

A jury convicted defendant of premeditated attempted murder. (Pen. Code, 664, subd. (a), 187, 189.)[1] It also convicted defendant of the willful discharge of a firearm from a vehicle ( 12034, subd. (c)), and found that he committed both offenses for the benefit of a street gang, and personally and intentionally discharged the firearm during the commission of the attempted murder. ( 12022.53, subd.(c), 186.22, subd. (b)(1)(C).) The court sentenced defendant to a total prison term of 35 years to life.
On appeal, defendant contends that the trial court abused its discretion to his prejudice and deprived him of an opportunity to present his defense of misidentification when it refused to permit Dr. Robert Shomer to testify as an expert on the psychological factors affecting eyewitness identification. He also argues that the trial court erroneously denied his motion for a pre-trial lineup, that the prosecutor committed prejudicial misconduct in closing argument, that trial counsel was ineffective for failing to object to the misconduct, that substantial evidentiary support for the gang activity enhancement is lacking, and that the abstract of judgment must be amended to delete the 10 year term for the gang enhancement. The Attorney General concedes the last point. Court modify the judgment to correct the sentence and, as modified, affirm.

Defendant was sent to prison for felony assault, felony battery, a misdemeanor drug offense, and misdemeanor resisting arrest. On appeal, he contends that there was insufficient evidence to support the jurys ancillary finding that he inflicted great bodily injury on one victim. He also challenges the imposition of two monetary penalty assessments. Court modify the judgment to adjust the amount of the penalty assessments, and with that modification Court affirm it.

On October 1, 2007, Defendant Lucas Tepetitla Perea was charged in an information in Monterey County with kidnapping (Pen. Code 207, subd. (a)) and carjacking (Pen. Code 215, subd. (a)).
Defendant filed a motion to dismiss the information on October 22, 2007, pursuant to Kellet v. Superior Court (1966) 63 Cal.2d 822, claiming his no contest pleas to driving under the influence and hit and run with injury in an earlier proceeding barred prosecution for kidnapping and carjacking in this case because the district attorney failed to prosecute all offenses arising from the same conduct in a single proceeding. The motion was denied on November 14, 2007. Defendant filed a timely notice of appeal, claiming the court erred in denying his motion to dismiss. No certificate of probable cause was requested.

Defendant Alberto Oranday was charged in an information in Santa Clara County with five counts of forcible lewd and lascivious acts with a child (Pen. Code 288, subd. (b)(1)) and one count of aggravated sexual assault of a child (Pen. Code 269). On August 29, 2007, defendant entered into a plea disposition under which the prosecutor amended count 6 to an additional charge of Penal Code 288, subdivision (b)(1), and defendant pleaded guilty to all six counts in return for a top/bottom sentence of 18 years in state prison. Defendant filed a timely notice of appeal on April 3, 2008, challenging the sentence and other matters occurring after the plea, as well as the validity of the plea. A second notice of appeal was filed on his behalf on April 18, 2008, challenging the validity of the plea and requesting a certificate of probable cause based on the grounds raised in the motion to withdraw plea. The request was denied.

Appellant Eva Angelica P. appeals from an order removing her from the custody of her parents and placing her in a foster home, group home, or 24-hour private institution. Appellant contends, and the People concede, that the juvenile court erred by failing to specify the maximum period of confinement for which she could be held. Court reverse and remand for the juvenile court to order a maximum period of confinement.

Defendant Juan Luna pleaded guilty or no contest to 14 felonies: nine counts of second degree robbery (Pen. Code, 211, 212.5, subd. (c)),[1] one count of carjacking (-215), one count of assaulting a peace officer ( 245, subd. (c)), one count of possessing a controlled substance (Health & Saf. Code, 11377, subd. (a)), one count of felony false imprisonment (-236, 237), and one count of possessing a sawed-off shotgun ( 12020, subd. (a)(1)). Defendant admitted gang enhancements associated with each count except the possession count (-186.22, subd. (b)(1)(A), (B), (C)) and admitted the vicarious arming allegations alleged in connection with two of the robbery counts (-12022.53, subd.-(b)). The trial court dismissed for insufficient evidence four other second degree robbery counts and two counts of kidnapping. The court also struck the gang enhancement alleged in connection with the carjacking in the interests of justice. The-court sentenced defendant to an agreed upon 31 years and eight months in prison. Defendant was awarded 489 days of custody credit.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. Court notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and Court have received no written argument from defendant.

In this disturbing tale of gang violence, defendants Ricardo Arana and Senituli Penisoni appeal their jury-trial convictions for the first degree murder of Ortega Barnes and attempted murder of Donald Prince, Dellory Crooks and Ray Porter. The prosecution asserted that defendants committed the charged crimes in the course of a drive-by shooting in March 2004, in East Palo Alto. Defendants contend: (1) the trial court erred by refusing to instruct on manslaughter and attempted manslaughter as lesser-included offenses of murder and attempted murder; (2) the trial court erred in excluding evidence of the murder victims violent conduct; (3) the trial court erred by admitting evidence of defendants gang associations; (4) the trial court erred by failing to give an instruction on accomplice testimony; (5) Officer Ramos offered improper opinion testimony on the veracity of the main prosecution witness; (6) the trial court erred in its attempted murder instruction; and (7) the convictions should be reversed for cumulative error. Court affirm.

Defendant Alicia G. appeals from the juvenile courts dispositional order of a reunification plan that requires her to undergo a substance abuse assessment and comply with drug treatment as a part of her case plan. Court affirm the courts order.

C.H. (appellant) appeals from a disposition entered after the juvenile court found true allegations that she committed one count of felony robbery, (Pen. Code, 211)[1]and three counts of misdemeanor battery ( 242). Her counsel on appeal has filed an opening brief that asks this court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant that she had the right to file a supplemental brief on her own behalf. Appellant declined to file such a brief. The disposition is affirmed.

Charles Moyer, a certified public accountant (CPA), sought legal assistance from Jon R. Vaught and his law firm Vaught & Boutris LLP (law firm) to assist him in his filing of bankruptcy. Subsequently, Moyer learned that the lien by the State Board of Equalization on his property was not discharged by the bankruptcy order. He sued Vaught and his law firm for legal malpractice. The lower court granted summary judgment against Moyers complaint, finding that he had not produced evidence to raise a triable issue of fact that he had suffered any injury. He appeals, and Court affirm the lower courts judgment.

In the underlying action, appellants Sonia Peralda and Edwin Rayter asserted claims for breach of insurance contract and bad faith against Fire Insurance Exchange (FIE). Following a bench trial, the trial court rendered judgment in favor of FIE on appellants claims. Court affirm.

Appellant Rolando Batres challenges his multiple convictions and sentence for aggravated sexual assault of a minor, sexual penetration by a foreign object, lewd acts, oral copulation and forcible rape convictions. He argues that the court erred in admitting evidence under Evidence Code[1]section 1108 that he had committed an uncharged rape in Mexico and that the prosecutor committed misconduct. He further contends the trial court improperly imposed a three-strike sentence on the basis of a prior New York conviction, which the prosecutor did not demonstrate qualified as a strike under California law. Finally, he claims his 417 year sentence amounts to cruel and unusual punishment. As we shall explain, appellant waived any claims with respect to the uncharged rape and the prosecutorial misconduct by failing to object in the trial court. Notwithstanding the foregoing, appellants sentence under the Three Strikes law must be vacated and remanded because the record fails to disclose that his prior conviction in New York qualified as a strike under California law.

Oscar Salazar (appellant) appeals from the judgment entered following a jury trial that resulted in his conviction of 11 counts of forgery (Pen. Code, 470, subd. (d))[1]and grand theft of personal property ( 487, subd. (a)).
He contends that: (1) the evidence is insufficient to support his conviction of grand theft, in lieu of petty theft, as he withdrew only $100 in stolen cash from his account before the account was closed; (2) the bank was not a direct victim of the grand theft and forgeries, and the bank suffered an economic loss of only $100, thus supporting only an order of $100 in victim restitution; (3) the trial courts sentencing orders violated section 654, which prohibits multiple punishment.

A jury found defendant and appellant Marcos Magana guilty of count 1, assault on a peace officer, and of count 2, assault with a deadly weapon. The trial court sentenced him to four years on count 1 and to a concurrent three-year term on count 2. Defendant contends on appeal, the People concede, and we agree that the sentence on count 2 should have been stayed under Penal Code section 654. Court therefore modify the judgment, and affirm it as modified.