CA Unpub Decisions

Sentenced to 32 years to life in state prison for repeatedly stabbing a correctional officer, defendant David Player appeals his conviction claiming evidentiary error. For the reasons discussed below, Court affirm the judgment.

Plaintiff Michael A. Hughes, in propria persona, appeals following defendants summary judgment in an action for damages for alleged racial discrimination in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, 12900.) As best we can make out, Hughes contends that the trial court erred in granting the motion for summary judgment notwithstanding: (1) procedural shortcomings in the notice and timing of the motion, (2) conflict with an earlier decision overruling a demurrer, and (3) defendants misrepresentation of the claims tendered by his complaint. Finding no merit in his contentions of error, Court affirm the judgment.

After hearing testimony that defendant Mark Anthony Nunez struck his former girlfriend with his truck and ran over her leg, a jury found him guilty of three crimes: assault with a deadly weapon (Pen. Code, 245, subd. (a)(1) -- count 1),[1]assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1) -- count 2), and infliction of corporal injury on a former cohabitant ( 273.5, subd. (a) -- count 3). As to each crime, the jury also found true allegations that defendant inflicted great bodily injury on the victim. ( 12022.7, subd. (a).)
At sentencing, the trial court stayed imposition of sentence on counts 2 and 3 because all crimes arose from the very same behavior. On appeal, defendant contends he cannot be convicted of two violations of section 245 based on a single assault and asks that we reverse his conviction in count 2. The People concede the error, and we agree. But because we also find the trial court neglected to impose any sentence on count three, Court remand for resentencing.

Mother and C.D.s father contend (1) the juvenile court erred in finding there was insufficient evidence of a compelling reason for determining termination of parental rights would be detrimental to the minors due to the beneficial parental relationship between mother and C.D., and (2) given that error, not only should that order of termination be reversed, but so too should the order of termination as to C.D. based on her sibling bond with R.B. Court affirm.

In August 2002, defendant Sonya Lynn Westmorland was a passenger in a car with license plates that belonged on a different car.[1] When police stopped the car, an officer noticed that defendant was gripping something in her hand. The officers asked her to step from the car. After a brief struggle, defendant dropped objects containing cocaine base. She spontaneously remarked, Thats just a dime hit. She was arrested and transported for further processing. The judgment is affirmed.

A jury convicted Enrique Roman of second degree murder (Pen. Code, 187, subd. (a); count one); and assault resulting in the death of a child under the age of eight (Pen. Code, 273ab; count two.) The trial court sentenced him to 25 years to life in prison on count two and imposed but stayed the count one sentence under section 654. Roman moved for a new trial under section 1181 based on alleged prosecutorial misconduct. The trial court denied the motion. Roman contends the trial court erroneously: (1) denied his motion for mistrial brought on the grounds that his constitutional right to an impartial jury was violated because the jury was not drawn from a fair cross-section of the community; (2) excluded evidence relating to his defense; (3) admitted evidence regarding his prior acts; (4) failed to instruct sua sponte on the lesser included offenses of aggravated assault and simple assault; (5) failed to properly instruct regarding reasonable doubt; (6) discharged a juror during deliberations; (7) imposed on him a sentence that violated the prohibition regarding cruel and unusual punishment. Court conclude the trial court prejudicially erred in discharging a juror during deliberations and substituting an alternate juror. Court reverse.

Joel Armenta appeals from a conviction of second degree murder with a true finding that he personally used a knife to commit the crime. He contends: (1) the evidence was insufficient to support the murder conviction and knife use finding; (2) the trial court erred in admitting statements he made before and after the crime; (3) the trial court erred in admitting expert testimony of an unqualified witness; and (4) the trial court erred in excluding hearsay evidence of his brother's admission that he (the brother) stabbed the victim. Court find no error as to the murder conviction. However, Court conclude the knife use enhancement must be reversed because the trial court improperly excluded the brother's admission, and the error was prejudicial.

In these eminent domain actions, the City of El Centro (City) and County of Imperial (County; together Appellants) each sought to obtain title to adjacent portions of land owned by respondents Ralph and Sharon Menvielle (Respondents), for a street widening project. (Cal. Const., art. I, 19.) In 2004, Appellants each deposited funds representing their estimates of the probable amount of just compensation for the right of way easements. (Code Civ. Proc., 1255.010 et seq.; all further statutory references are to the Code of Civil Procedure unless noted.) The two actions were consolidated for trial and a jury determined the amounts of just compensation, which were not much larger than the deposits made by Appellants ($1,000 higher for the City and $7,000 higher for the County). Appellants now contend the trial court abused its discretion by awarding litigation expenses to Respondents, since the order is based on a misinterpretation of the statute and isnot supported by substantial evidence. Court agree and reverse the order.

On August 30, 2007, Barron Deon Wilkerson pleaded guilty to resisting an officer (Pen. Code, 69), selling cocaine base (Health & Saf. Code, 11352, subd. (a)), and possessing cocaine base for sale (Health & Saf. Code, 11351.5). The latter two counts each carried two Health and Safety Code, section 11370.2, subdivision (a) enhancements, one for a prior conviction of Health and Safety Code, section 11351 and the other for a prior conviction of Health and Safety Code, section 11351.5. Wilkerson admitted a strike (Pen. Code, 667, subds. (b)-(i)) and six prior prison terms (Pen. Code, 667.5, subd. (b)). The court dismissed the strike, four of the prison priors, and the Health and Safety Code section 11270.2, subdivision (a) enhancements. It sentenced Wilkerson to six years in prison: the four year middle term for selling cocaine base, concurrent terms on the remaining counts, and one year for each remaining prison prior. Wilkerson appeals and has filed a petition for writ of habeas corpus. Court affirm the judgment and deny the petition.

Jesus Omar Higuera entered negotiated guilty pleas to assault likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1))[1]and robbery ( 211) and admitted that he personally used a firearm within the meaning of section 12022.7 during the robbery. Higuera also admitted that he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)). Under the plea bargain, the prosecution agreed to dismiss charges of mayhem, attempted robbery and felon possession of a firearm as well as allegations that Higuera had served three prior prison terms within the meaning of section 667.5, subdivision (b). The parties agreed to a stipulated prison sentence of 11 years in the instant case, which was to be run consecutive to a term of 16 months in superior court case number SCS212664, for an aggregate sentence of 12 years, four months. The judgment is affirmed.

Melvin Lee Ellis pleaded guilty to failure to register as a sex offender (former Pen. Code,[1] 290, subd. (g)(2), now 290.018, subd. (b)) and admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)). At sentencing, the trial court denied Ellis's Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to dismiss the strike allegation, and sentenced Ellis to 32 months in prison. The court selected the low term of 16 months for the failure to register count and doubled it under the Three Strikes law.
The judgment is affirmed.

The original dependency proceeding involved Nikolas and his half brother, G.S. (the children). The children first became the subjects of referrals to the Riverside County Department of Public Social Services (the department) when mother gave birth to G.S. prematurely in December 2003. Mother was bipolar and was taking medication. Before being discharged from the hospital after giving birth, she had panic attacks and attempted to remove her intravenous needles. The department filed a section 300 petition with regard to G.S. on February 11, 2004. Nikolas was subsequently added to an amended petition on February 25, 2004. Nikolas was 13 years old at the time. The amended petition alleged that the children came under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the amended petition alleged that mother and Nikolass father, Rene A. (father), engaged in acts of domestic violence, and that father did not live with Nikolas and failed to provide for him. Fathers whereabouts were unknown at the time. (The petition made the same allegations against the father of G.S.) The court adjudged the children dependents of the court, allowed mother to retain custody, and placed the matter in family maintenance status. The judgment is affirmed.

On October 31, 2006, Rexford Properties LLC and Richard K. Ehrlich (collectively Rexford) entered into a settlement agreement with Paulo Naccarati and Jotionitalat, LLC and Luiz and Gildete Naccarati (collectively the Naccaratis) during trial. The settlement required Rexford to transfer, pursuant to previously executed purchase agreements, two properties to Paulo and the LLC, and a third property to Luiz and Gildete, through a close of escrow within 30 days of the settlement date, and gave the trial court discretion to grant any partys request to extend the escrow 30 days. The Naccaratis requested and were granted such an extension. Some of the purchase money and documents necessary to close escrow had been placed into escrow by December 29, 2006; the remaining money and documents were placed into escrow on January 2, 2007 (the 60th day after the settlement date, extended by the New Years holiday). Pursuant to the county recorders practice, however, the deeds could not record until the morning of January 3 because the money and documents had not been placed into escrow before 7:30 a.m. on January 2. Since the deeds could not record on January 2, Rexford instructed the escrow holder not to close the escrows. When Rexford continued to refuse to close the escrows, Paulo and Luiz brought motions to enforce the settlement agreement, which the trial court granted. Court affirm.

Robert R. appeals from a 2007 order declaring his twin daughters, R.R. and E.R. free from his custody and control (Fam. Code, 7820 et seq.).[1] The Fresno County Superior Court based its decision on the following alternate grounds: appellant abandoned his children ( 7822), and appellant was convicted of felonies, the underlying facts of which proved his parental unfitness ( 7825). Appellant last supported his children and had contact with them in 1999 while he and respondent were in the midst of acrimonious marital dissolution proceedings. The trial court found his testimony that he did not intend to abandon the children was not credible. Appellant was subsequently convicted of soliciting the rape and murder of his former wife (the respondent here) and the murder of her family law attorney. The order terminating parental rights is affirmed.