CA Unpub Decisions

Defendants, Raymond Paul Perez, Joshua Mathew Perez,[1]and Rosario Manuel Leanos, appeal from: their convictions for second degree murder (Pen. Code,[2] 187, subd. (a)); the finding that Mr. Leanos personally and intentionally discharged a firearm causing death ( 12022.53, subds. (d)(1), (e)(1)); and the finding the homicide was committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(C).) Raymond argues that the trial court improperly: instructed the jury on the natural and probable consequences doctrine; denied the motion to bifurcate the trial of the gang enhancement; admitted testimony by an experienced gang investigator; sentenced him to 25 years to life for vicarious personal use of a firearm and 40 years to life for vicarious liability second-degree murder; and stayed the 10-year criminal street gang enhancement. Raymond further argues: there was insufficient evidence the shooting was a natural and probable consequence of any act he knowingly aided and abetted; the testimony by the experienced gang investigator was insufficient to establish that the crime was committed for the benefit of a criminal street gang; he was denied effective assistance of counsel; and he is entitled to reversal because the trial errors were cumulatively prejudicial. Raymond also joined in the arguments of his co-defendants as they relate to him. Joshua argues there was insufficient evidence that he aided and abetted the murder and his 25 year-to-life sentence was improperly imposed because his liability was merely vicarious. Joshua further argues the trial court improperly stayed the gang enhancement and failed to order the victim restitution payable based upon joint and several liability. Joshua also joins the arguments of his co-defendants which may accrue to his benefit and are consistent with his contentions. Mr. Leanos argues that there was insufficient evidence to support his conviction or the finding that the murder was committed for the benefit of a street gang. Mr. Leanos also argues the trial court improperly: denied Joshuas bifurcation motion; admitted irrelevant and inflammatory evidence; admitted unnecessary gang testimony; imposed a 10-year gang enhancement; and imposed victim restitution that was not designated joint and several. Mr. Leanos further argues that cumulative error resulted in a miscarriage of justice and he was denied effective assistance of counsel. Court affirm in part and reverse in part with directions.

Glenn Terrell appeals from the judgment entered following his conviction by jury on count 1 first degree murder (Pen. Code, 187) with the special circumstance that he committed the offense during a robbery (Pen. Code, 190.2, subd. (a)(17)(A)), count 2 willful, deliberate, and premeditated attempted murder (Pen. Code, 664, 187), and count 3 first degree robbery (Pen. Code, 211), with findings as to each offense that appellant personally used a dangerous or deadly weapon (Pen. Code, 12022, subd. (b)(1)) and personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)). The court sentenced him to prison on count 1 to life without the possibility of parole for the murder, on count 2 to a consecutive term of life with the possibility of parole for the attempted murder, and on count 3 to a concurrent term of four years for robbery, plus, as to each count, four years for the enhancements. Appellant claims the trial court committed trial and sentencing errors. Court modify the judgment and, as modified, affirm it with directions.

Ismael Garcia appeals the judgment entered following his conviction by jury of possession of an unregistered loaded firearm, possession for sale of marijuana and transportation of marijuana. (Pen. Code, 12031, subd. (a)(1); Health & Saf. Code, 11359, 11360, subd. (a).) The jury found Garcia committed the Health and Safety Code violations for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A). The trial court sentenced Garcia to a term of six years in state prison. Court reject Garcias claims of error and affirm the judgment.

Miguel Amaya appeals from the judgment entered following his conviction by a jury of assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).)[1] He was sentenced to prison for the middle term of three years. Appellant contends that the evidence is insufficient to show that the alleged deadly weapon - a drinking glass - qualified as a deadly weapon. Appellant also contends that the trial court (1) erroneously included allegations of aggravating circumstances in the verdict form, and (2) miscalculated his presentence conduct credit. Court accept respondent's concession that the second contention is meritorious. In all other respects, we affirm.

Following the juvenile courts denial of Eric C.s (minor) suppression motion (Welf. & Inst. Code, 700.1),[1]minor admitted having committed certain offenses alleged in two petitions filed pursuant to section 602. From a petition filed May 29, 2007, minor admitted the unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) as a felony. From a petition filed July 6, 2007, minor admitted exhibiting a concealable firearm in public in violation of Penal Code section 417, subdivision (a)(2) as a misdemeanor. The juvenile court set minors maximum period of confinement at three years four months. Minor appeals on the grounds that: (1) his detention and arrest based on information from an anonymous tip must be suppressed, and (2) because minor was placed at home on probation, the juvenile courts pronouncement of a maximum confinement time and the clerks minute order reflecting the pronouncement must be stricken.

Respondent superior court ordered that a stay of wrongful death litigation, first imposed over four years ago, be lifted and that the Sheriff of San Luis Obispo County provide a "comprehensive privilege log" of each document in its investigative files concerning the presumed homicide that the sheriff contends is privileged from disclosure pursuant to Evidence Code section 1040. The sheriff seeks a writ of mandate directing respondent to vacate its order and enter a new order maintaining the stay. Court issued an alternative writ and order to show cause. Respondent did not comply and we now direct the entry of a peremptory writ of mandate as requested by the sheriff.

In this matter, defendant entered a negotiated plea of guilty to one count of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a)) in exchange for dismissal of an earlier case in which he was charged with corporal injury to a cohabitant and injuring a utility line (Pen. Code, 591). He was thereafter sentenced to state prison for the middle term of three years.
Defendant appeals, contending the trial court abused its discretion in refusing to grant probation. Court disagree and affirm the judgment.

An information charged Kenneth Antonio Sexton with carjacking (Pen. Code,[1] 215, subd. (a)) with personal infliction of great bodily injury (GBI) ( 12022.7, subd. (a)), inflicting corporal injury on a spouse ( 273.5, subd. (a)) with personal infliction of GBI, and unlawfully taking and driving a vehicle (Veh. Code, 10851, subd. (a)). It alleged two convictions as "strike prior(s)" (capitalization omitted) ( 667, subds. (b)-(i), 1170.12, 668) and the same two convictions as a serious felony prior conviction ( 667, subd. (a)).A jury found Sexton guilty of inflicting corporal injury on a spouse with personal infliction of GBI and unlawfully taking and driving a vehicle. Sexton waived his right to a trial on the prior conviction allegations and admitted the allegations, without waiving his right to argue whether the allegations constituted two separate strike convictions ( 667 subds. (b)-(i), 1170.12, 668) and how they should be treated at sentencing. At sentencing, the court concluded the two priors were separate convictions, dismissed one strike, and sentenced Sexton to 15 years four months in prison: six years (twice the middle term) for inflicting corporal injury on a spouse, three years for the GBI enhancement, one year four months (one-third the middle term, doubled) for unlawfully taking and driving a vehicle, and five years for the serious felony prior. Sexton appeals. Court affirm.

Susan H. seeks review of juvenile court orders setting a hearing under Welfare and Institutions Code section 366.26. Susan contends the court erred when it found that reasonable services were provided. Court deny the petition.

A jury convicted defendant of first degree burglary (count IPen. Code, 459),[1]petty theft with a prior (count II 666), and receiving stolen property (count III 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts and an allegation that defendant had a prior strike conviction. On appeal, defendant makes four contentions: (1) the court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the court erred in finding the gang enhancement allegations true; (3) the court erred in imposing an unauthorized sentence on count I; and (4) the court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right. The People concede defendants first, third and fourth issues, but contend substantial evidence supported the trial courts finding on the gang enhancement. We agree the court erred in permitting conviction on both counts II and III and, therefore, reverse the conviction on count III. Likewise, we agree the court imposed an unauthorized sentence on count I and direct the superior court to correct the sentencing minute order. Additionally, Court agree the court failed to properly admonish and take defendants waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, we reverse the true findings on the gang enhancements because Court find they were not supported by substantial evidence. In all other respects, the judgment is affirmed.

Mother and father separated in 2004 and were divorced in 2007. Meanwhile, mothers boyfriend, James, moved in with her and her children, 13-year-old J.M. and 11-year-old O.M, and mother and James had a son together, James, Jr. On February 26, 2007, the Riverside County Department of Public Social Services (department) received an Immediate Response Referral report that J.M. had run away before school that morning because James had hit him the night before and he was in pain. Later that day, a department social worker transferred O.M. from mothers home to fathers and advised both parents to report the matter to the family law court handling their divorce case. The appeal is dismissed as moot.

On July 26, 2006, the Kern County District Attorney filed an information in superior court charging appellant as follows: Count 1felony aggravated sexual assault on a child under the age of 14 (Pen. Code, 269, subd. (a)(1))[1]with two prior strike convictions ( 667, subds. (c)-(j), 1170.12), two prior felony convictions ( 667, subd. (a)), and a prior prison term ( 667.5, subd. (b)); Count 2felony lewd and lascivious conduct with a child under age 14 ( 288, subd. (a)) with two prior strike convictions ( 667, subds. (c)-(j), 1170.12), two prior felony convictions ( 667, subd. (a)), and a prior prison term ( 667.5, subd. (b)); and Count 3misdemeanor resisting a peace officer ( 148, subd. (a)(1)).
The judgment is reversed.

Appellant Julia Ann Howell appeals her conviction on one count of second degree robbery (Pen. Code, 211)[1]and one count of use of tear gas ( 12403.7, subd. (g)).[2] Appellants sole ground for appeal is that she was denied her constitutional right to testify in her own defense despite a timely and adequate assertion of the right. Respondent contends that appellant never made a timely, unequivocal assertion of the right to testify. Accordingly, the judgment of conviction will be reversed.

This is an appeal from a judgment confirming an arbitration award against plaintiffs and appellants, Kenneth L. Van Dyke and Roberta E. Van Dyke. We agree with the trial courts conclusion that there is no basis to overturn the arbitration award, and we will affirm the judgment. At issue is whether the arbitrators award violated a public policy enshrined in statutory law, whether the arbitrator prejudicially refused to hear certain evidence, and whether the arbitrator arbitrarily remade a contract which was not assignable into one which was, as appellants phrase the matter in their opening brief. In addition, defendants and respondents John P. Brichetto and Jacqueline Brichetto (collectively, the Brichettos) have filed a motion for sanctions, contending the appeal is frivolous. Court previously deferred that motion until consideration of the merits of the appeal, and Court now deny the motion.