CA Unpub Decisions

A jury convicted Giancarlo Mondragon of first degree murder in the shooting death of Francisco Martinez. The jury found true the special circumstance allegation that Mondragon was an active member of the 18th Street criminal street gang and committed the murder for the benefit of this gang (Pen. Code, 190.2, subd. (a)(22)), and that he personally discharged a firearm and proximately caused great bodily injury and death ( 12022.53, subd. (d)). The trial court imposed a sentence of life without the possibility of parole for the murder, plus a term of 25 years to life for the firearm enhancement. Mondragon contends the trial court committed reversible error by permitting the Peoples gang expert to testify generally that gang members intimidate witnesses, and he argues the courts imposition of a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d) violates principles of double jeopardy. Court find these contentions meritless and affirm the judgment.

David M., Sr. (father), the father of six year old David M., Jr., and three and a half year old A. M., appeals from an order terminating parental rights. Court affirm.

Judging from the allegations in this case, viewers who see Larry Parker commercials and then call the phone number will not always end up having Parker personally fight for them. Parker evidently refers some cases to other attorneys, including defendant William Sobel. And Sobel, in turn, subcontracts out some of the work brought in by Parkers advertisements or at least he used to before this lawsuit to plaintiff William Kent. The order denying fees is reversed. The cause is remanded to the trial court to ascertain the fees reasonably expended on defendant John Akers for the anti-SLAPP motion and on this appeal, and to award those fees to him.

Hannah P. (mother) appeals from a judgment terminating her parental rights over one-year-old T.P. under Welfare and Institutions Code section 366.26.[1] She contends the court violated her statutory and constitutional rights by denying her section 388 petition without an evidentiary hearing. She also argues Orange County Social Services Agency (SSA) failed to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) an error SSA concedes on appeal. Because SSA did not comply with the ICWAs notice requirements, we reverse the judgment terminating parental rights and remand the matter to the juvenile court with directions for further proceedings.

Under a plea agreement, defendant Alfredo Gomez Rodriguez pleaded guilty to committing a lewd and lascivious act on a child under the age of 14 and admitted a special allegation that he engaged in substantial sexual conduct with the victim. The trial court sentenced him to the upper term sentence of eight years. Defendant appealed from the imposition of the upper term sentence, contending that the trial court committed prejudicial error by (1) disregarding significant mitigating factors shown in the record, and (2) relying on aggravating circumstances neither admitted in his plea nor proven beyond a reasonable doubt to a jury. Court affirmed the judgment in a nonpublished opinion issued on September 29, 2005.

Defendant David John Wagner appeals a judgment entered upon a jury verdict finding him guilty of attempted murder (Pen. Code,[1] 187, subd. (a) & 664, subd. (a)); aggravated mayhem ( 205); willful infliction of corporal injury on a cohabitant resulting in a traumatic condition ( 273.5, subd. (a)); assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)); and dissuading a witness by force or threat of force ( 136.1, subd. (c)(1)), and finding true various enhancement allegations. Defendant was sentenced to serve six years followed by a term of life in prison. He contends on appeal that there was insufficient evidence that he committed aggravated mayhem, that evidence was erroneously admitted, and that the trial court committed instructional error. Court reverse the conviction of aggravated mayhem. In all other respects, Court affirm.

After a jury trial, appellant was convicted of two counts of second-degree robbery (Pen. Code, 211/212.5, subd. (c))[1] and sentenced to a total of four (4) years in state prison. He appeals, claiming that the trial court erred in (1) denying his section 1538.5 motion to suppress evidence taken from his person while he was being detained, and (2) denying his motion, made at both the preliminary hearing and trial, to exclude the identification testimony of the two robbery victims and hence dismiss under section 995. Court disagree with both contentions and hence affirm.

A jury convicted defendant Berle J. Grant of four narcotics and weapons offenses. He contends his trial counsel was ineffective for failing to renew in superior court a suppression motion heard and denied by the magistrate at the preliminary hearing. Court disagree because the record on appeal does not show ineffectiveness of counsel. Renewing the motion would have been pointless because the motion lacked merit.

Plaintiff and appellant Maria Graves sued her neighbors, defendants and respondents Allan and Andrea Brum, for trespass, statutory violations, negligence, and nuisance, seeking damages and injunctive relief. After the court granted Gravess attorneys motion to withdraw as counsel and denied her motion for a continuance, Graves represented herself in propria persona at trial. After Graves presented her case, the Brums moved for a directed verdict and the trial court dismissed Gravess action. Court affirm.

Defendants and appellants, Salvador Solis and Miguel Villalobos, appeal from the judgments entered following their convictions, by jury trial, for sale or transportation of heroin, and possession of heroin for sale (Health & Saf. Code, 11352, subd. (a), 11351). Sentenced to three years probation each, defendants contend there was trial error. The judgments are affirmed.

Defendant Leo Norvell Ware appeals from the judgment entered following a jury trial in which he was convicted of shooting at an inhabited dwelling, in violation of Penal Code section 246 (count 1); discharging a firearm in a grossly negligent manner, in violation of section 246.3 (count 2); and possession of two firearms by a felon, in violation of section 12021, subdivision (a)(1) (counts 3 and 4).[1] In a bifurcated court trial, defendant was found to have suffered four prior convictions under sections 1170.12 (the Three Strikes law) and 667, subdivision (a)(1). Defendant was sentenced to 70 years to life.
Defendant challenges the convictions of counts 1 and 2 only, contending that the trial court erred in failing to instruct, sua sponte, on self defense, and alternatively that trial counsel rendered ineffective assistance in failing to request such instructions. Court affirm because defendant did not rely on self defense, and such a defense was inconsistent with his theory of the case.

Appellant Guillermo Anthony Velez appeals from the judgment entered following a jury trial in which he was convicted of one count of first degree murder and one count of second degree murder, with a multiple murder special circumstance. The jury further found that during the commission of these offenses appellant personally and intentionally discharged a firearm, causing death or great bodily injury. The jury also convicted him of possession of a firearm by a convicted felon. The trial court sentenced appellant to consecutive terms of life in prison without possibility of parole, 30 years to life, plus five years in prison.
Appellant contends the trial court erred by deleting from the standard form instruction on self-defense a paragraph stating that he was not required to retreat, refusing to issue a bench warrant for a coroners employee who tested one of the victims for gunshot residue, and treating his prior juvenile adjudication as a strike prior although he had no right to a jury trial in the juvenile court proceedings. Court conclude the trial court committed prejudicial instructional error and reverse.

Defendant and appellant, Thomas Braley, appeals from the judgment entered following his conviction, by jury trial, for robbery and petty theft with a prior, with prior serious felony conviction findings (Pen. Code, 211, 666, 667, subd. (a)-(i)). Sentenced to state prison for 35 years to life, Braley claims there was trial error. The judgment is affirmed as modified.

Defendant and appellant, Dion Isaac Herring, appeals from the judgment entered following his conviction, by jury trial, for kidnapping during the commission of a carjacking (2 counts), robbery, criminal threats and possession of a firearm by a felon, with firearm use findings (Pen. Code, 209.5, 211, 422, 12021, 12022.5, 12022.53). Sentenced to state prison for life plus 35 years, Herring claims there was trial error. The judgment is affirmed.