CA Unpub Decisions

Jesus Meda appeals from the judgment entered following his conviction by a jury for first degree murder (Pen. Code, 187, subd. (a))[1]and attempted willful, deliberate and premeditated murder ( 664, 187, subd. (a)) with special findings he had personally and intentionally discharged a firearm proximately causing death ( 12022.53, subd. (d)). Meda argues his trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel by failing to move to exclude or limit gang expert testimony. Court affirm.

Defendants Clinton Howes and Robert John Lattanzio were convicted by a jury of first degree residential burglary and second degree burglary of a motor vehicle. (Pen. Code, 459, 460, subds. (a), (b).)[1] Defendants appeal, contending that there was insufficient evidence to support the first degree burglary conviction in that entry of a carport beneath inhabited condominiums does not constitute entry of an inhabited dwelling house within the meaning of section 460. Respondent disputes defendants contentions and requests additional court security fees pursuant to section 1465.8, subdivision (a)(1). Court affirm the first degree burglary convictions and order that the abstracts of judgment be modified to reflect additional court security fees.

Defendant Kenneth Jenkins appeals from the judgment entered after a jury convicted him of furnishing or giving away cocaine base, and he admitted that he had suffered two prior serious felony convictions within the meaning of the Three Strikes law and one prior conviction for the sale of narcotics, and had served three prior prison terms. (Health & Saf. Code, 11352, subd. (a); Pen. Code, 1170.12, subds. (a) through (d), 667, subds. (b) through (i); Health & Saf. Code, 11370.2, subd. (a); Pen. Code, 667.5, subd. (b).) Defendant contends the trial court erred when it admitted evidence that he had engaged in a prior sale of narcotics and imposed the upper term for the violation of Health and Safety Code section 11352, subdivision (a). Court affirm the judgment.

Henry Lee Boykins appeals from the judgment entered following his conviction after a jury trial on one count of selling, transporting or offering to sell a controlled substance (Health & Saf. Code, 11352, subd. (a)), with special findings by the court in a bifurcated proceeding he had suffered eight prior convictions, six of which were for the same offense as the current charge.[1]Boykins contends the trial court abused its discretion in failing to suspend all proceedings to permit the question of his mental competency to be determined pursuant to section 1369. Boykins also contends the court erred in failing to instruct the jury on possession of a controlled substance or possession of a controlled substance with intent to sell, although he concedes these are not lesser included offenses of the crime charged, apparently as a means of permitting the jury to engage in jury nullification. Court affirm.

William Galdemez appeals from the judgment entered after a jury convicted him of aggravated assault for which he was sentenced to 13 years in state prison. Galdemez challenges the judgment, arguing the jury did not receive constitutionally adequate instructions on the reasonable doubt standard. Court agree with Galdemez and reverse the judgment.

Alfonso Averhart appeals from the judgment following his jury trial and conviction of attempted kidnapping and attempted lewd acts on a child under the age of 14. (Pen. Code, 664, 207, subd. (a), 288, subd. (a).)[1] The trial court sentenced him to four years in prison for attempted kidnapping and stayed the three-year sentence for attempted lewd acts upon a child. ( 654.) Appellant challenges the sufficiency of the evidence to support the attempted kidnapping conviction; argues that there can be no meaningful appellate review in his case because there is no record of the court's oral instructions to the jury; and claims that the court committed multiple instructional errors. Because the trial court failed to instruct sua sponte on the lesser-included offense of false imprisonment ( 236), Court reverse the attempted kidnapping conviction with directions; Court otherwise affirm.

Dawn Willson appeals from a Santa Barbara Superior Court order dismissing her petition for dissolution of marriage and declining to assume jurisdiction to modify a child custody order issued by a Spanish court. Court affirm. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 et seq. (UCCJEA), the California court had no jurisdiction and was required to dismiss the petition.

This matter, which is before us for the second time on appeal from an order denying attorney fees, arises out of an action brought by plaintiff and appellant Richard Sang Kim against defendant and respondent Euromotors West/The Auto Gallery (TAG) for, among other things, violation of the Consumers Legal Remedies Act (CLRA). In a prior published opinion, we reversed the trial courts order denying Kims motion for attorney fees for the reason that the trial court erroneously found that, because the matter was resolved by settlement agreement prior to trial, there could be no prevailing party. (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170 (Kim I).)
On remand, the trial court found Kim obtained a net monetary recovery but nevertheless denied him attorney fees under the CLRA because on balance, neither party prevailed sufficiently to justify an award of attorneys fees. In this opinion, Court take liberally from our prior opinion the discussion of the facts and the relevant law. Court conclude that the trial court abused its discretion in finding that Kim obtained a net monetary recovery but was not a prevailing plaintiff under the CLRA, and direct the court to award Kim reasonable attorney fees to be determined by the trial court.

Appellant Arthur Paul Perez was convicted by jury of the attempted murders of Brian Harris and Yvonne Pasillas (counts 1 & 2, Pen. Code 664, subd. (a); 187, subd. (a); 189);[1]shooting at an inhabited dwelling (count 3, 246); possession of a firearm by a felon (count 4, 12021, subd. (a)(1)); corporal injury to child's parent (count 5, 273.5, subd. (a)(1)); and corporal injury to a child (count 6, 273d, subd. (a)). The jury further found that the attempted murder of Brian Harris (count 1) was willful, premeditated and deliberate, but did not make that finding as to the attempted murder of Yvonne Pasillas (count 2). Another count of corporal injury to a child (count 7) and a count of felony vandalism over $400 (count 8, 594, subd. (a)) were dismissed because the jury could not reach a verdict on those counts. Court affirm with directions to correct an error in the abstract of judgment.

Defendant Juan Gonzalez appeals from the judgment entered following his conviction by jury of second degree robbery with the personal use of a firearm. (Pen. Code, 211, 212.5, subd. (c), 12022.53, subd. (b).) The jury further found that he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang. ( 186.22, subd. (b)(1).) He appeals, contending there is insufficient evidence to support the jury finding that he used a firearm and committed the robbery for the benefit of a criminal street gang. Court affirm the judgment.

In this dependency action, appellant Delonzo L., a noncustodial presumed father, has appealed from the jurisdictional and dispositional orders regarding his three children. The dependency court found the children to be dependent minors under Welfare and Institutions Code section 300, subdivisions (a), (b), and (d),[1]and removed them from the custody of their mother, who has not appealed. As conceded by respondent Los Angeles County Department of Children and Family Services (the Department), the matter must be remanded for the limited purpose of providing proper notice under the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) The orders are affirmed, subject to a possible motion to vacate the orders, as Court explain.

Andres Fuentes appeals from the judgment entered following revocation of probation. He previously pled no contest to possession of cocaine (Health & Saf. Code, 11350, subd. (a)) and admitted one prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The judgment is affirmed.

Pursuant to a plea agreement, defendant Antonio Romedra Bailey pled no contest to indecent exposure with a prior (Pen. Code,[1] 314, subd. (1))[2]and admitted he previously was convicted of a violation of section 288, subdivision (c). Thereafter, the court imposed the agreed upon sentence of 16 months in state prison.[3] In addition to a restitution fine of $200 ( 1202.4, subd. (b)), a parole revocation fine of $200 ( 1202.45) and a court security fee of $20 ( 1465.8, subd. (a)(1)), the court ordered defendant to pay attorneys fees pursuant to section 987.8, a matter not discussed during plea negotiations. Although the court did not specify the amount of attorneys fees to be paid, the courts minute order lists the amount of fees to be paid as $268.

Defendant Darrell Henry Banks was charged by information with possession for sale of cocaine (Health & Saf. Code, 11351) (count 1), possession for sale of marijuana (Health & Saf. Code, 11359) (count 2) and possession of an assault weapon (Pen. Code, 12280, subd. (b))[1](count 3). The information specially alleged as to count 1 that defendant was personally armed with a firearm within the meaning of section 12022, subdivision (c), and as to counts 1 and 2, that defendant was a principal armed with an automatic weapon within the meaning of section 12022, subdivision (a)(2). The judgment is affirmed.