CA Unpub Decisions

Raul Damian Martinez was charged with one count of first degree murder and three counts of attempted premeditated murder with allegations that he personally and intentionally discharged a firearm causing great bodily injury and death, and that he committed the crimes for the benefit of a criminal street gang. (Pen. Code, 187, subd. (a), 664, subd. (a), 12022.53, subds. (b)-(e), 186.22, subd. (b)(1)(B).) The jury found that one of the attempted murders was not premeditated but otherwise convicted Martinez as charged, and the trial court sentenced him to state prison for a determinate term of 17 years plus an indeterminate term of 155 years to life. Martinez appeals, challenging the sufficiency of the evidence and contending there were instructional and evidentiary errors. Court affirm.

The Helman Group (Helman), its human resources manager, Christine Hess (Hess), and its employee, Alicia Castillo (Castillo), appeal from the judgment entered after jury trial. The jury rendered a verdict in favor of Helman's former employee, Genoveva Miranda (Miranda), on her claims for wrongful termination in violation of public policy against Helman, intentional infliction of emotional distress against Hess and Castillo, and defamation against Helman, Hess and Castillo.
Appellants contend that the verdict on wrongful termination in violation of public policy was against California law because a complaint of workplace defamation does not implicate any matter of public concern. They also contend that damages for lost wages were not recoverable on any cause of action because Miranda was not wrongfully terminated. Court reverse the judgment as to the award of $130,000 against Helman for wrongful termination, and otherwise affirm.

John Robert McNally appeals from the judgment after a jury convicted him of possession for sale of a controlled substance (heroin) (Health & Saf. Code, 11351), giving false information to a police officer (Pen. Code, 148.9, subd. (a)), and resisting a peace officer (Pen. Code, 148, subd. (a)(1)). The trial court found that appellant had suffered three prior convictions for possession of controlled substances for sale (Health & Saf. Code, 11370.2, subds. (a) & (c)) and imposed an aggregate sentence of nine years state prison. Appellant argues that the trial court erred in denying his motion for new trial because the evidence only supports a conviction for possession of heroin for personal use, not possession for sale. (Pen. Code, 1181(6).) Court affirm.

A mother appeals from dispositional orders removing her two sons, Dimitri and T., from her custody. The orders placed Dimitri with his noncustodial, nonoffending father in the state of Alabama, and terminated jurisdiction over Dimitri. T., whose father is unknown, was sent on an extended visit to Alabama in the home of Dimitris father. We affirm the orders with respect to Dimitri, but reverse the orders as to T. because they violate the Interstate Compact on Placement of Children and interfere with the mothers right to attempt reunification with T.
The courts dispositional orders are reversed to the extent they ordered T. on an extended visit with Darius without compliance with the ICPC and without consideration of the mothers right to attempt reunification. In all other respects, the orders are affirmed.

Defendant and appellant Fredrica Haymaker appeals from an order denying her motion to set aside a default judgment entered in favor of Michelle Cole in this action concerning the sale of real property. Haymaker contends: (1) she was never served with the operative amended complaint, and therefore, the default and default judgment were void; and (2) the default and default judgment should be set aside on equitable grounds. Court hold that substantial evidence supports the trial courts findings and the trial court did not abuse its discretion in its ruling, and therefore affirm the order.

The minor Paris S. was found to be a dependent child of the court pursuant to section 300, subdivision (b) of the Welfare and Institutions Code (section 300(b)), based on a substantial risk that the child will suffer[] serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.[1] Paris was removed from the custody of her parents, Y. D. (Mother) and Kevin S. (Father), and suitably placed with a friend of the family. Mother and Father have appealed. They contend: (1) There was no substantial evidence to support the jurisdictional order. (2) There was no clear and convincing evidence to support the order removing Paris from their care, and it was an abuse of discretion to do so. (3) Some of the dispositional orders were erroneous.
Court reverse two of the dispositional orders, modify another, and otherwise affirm.

Brendon Venerable (Venerable) appeals from the judgment entered following his plea of no contest to the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)) and his admission that he previously had been convicted of a serious felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Venerable to six years in state prison. Court dismiss Venerables appeal as inoperative for failure to obtain a certificate of probable cause.

A jury convicted defendant Luke Howard Logan on three counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, 288, subd. (a)). The trial court sentenced defendant to 12 years in prison. On appeal, defendant contends trial counsel was ineffective and his upper term sentence violates the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Court reject the contentions and affirm.

Defendant Richard Dean Savidge was convicted by a jury of three counts of aggravated assault (Pen. Code, 269, subd. (a)(4); undesignated statutory references are to this code), and seven of 10 counts of forcible child molestation ( 288, subd. (b)(1)), and sentenced to state prison for three consecutive indeterminate sentences and seven fully consecutive determinate sentences pursuant to section 667.6, subdivision (d). Affirming the judgment on appeal, this court remanded for resentencing only, pursuant to which defendant was resentenced to two consecutive indeterminate terms each for counts one and two, plus a consecutive determinate term of 32 years.
Defendant contends, on appeal, that imposition of fully consecutive terms pursuant to section 667.6 and consecutive terms under the determinate sentencing law violated Apprendi,[1]Blakely[2]and Cunningham.[3] He also contends the trial court erred when it failed to recalculate actual time served prior to resentencing. Court affirm the judgment and direct the trial court to recalculate defendants custody credits earned prior to resentencing.

Defendant shot Jamie Mathis with a shotgun, killing her. At trial, there were two different versions of the events that night. Under the prosecutions version, presented by testimony of Jamies family and friends, defendant was the aggressor and the crime was premeditated murder.[1] Defendant claimed Jamie and her cohorts were the aggressors and he shot in self-defense. Accepting neither version completely, the jury convicted defendant of voluntary manslaughter (Pen. Code, 192) and found he personally used a firearm (Pen. Code, 12022.5, subd. (a)). The trial court found defendant had a previous prison term pursuant to Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to the upper term on both the offense and the enhancement, for a total of 22 years in prison.
On appeal, defendant contends he was denied his right to present a defense because the trial court excluded evidence of the victims propensity for violence. He contends it was error to restrict cross-examination of a prosecution witness and not to instruct on involuntary manslaughter. Finally, he challenges his upper term sentence under Cunningham v. California (2007) 539 U.S. ___ [166 L.Ed.2d 856].) Court find merit only in the last contention. Court remand for resentencing and otherwise affirm the judgment.

On appeal, the minor challenges two of the probationary conditions as being unconstitutionally vague and overly broad. Court shall modify the conditions and affirm the judgment.

After his criminal convictions and sentence were affirmed in full, plaintiff Mychael Tyrone Shannon sued defendant Gregory Marshall, his appointed appellate attorney, for legal malpractice in failing to raise numerous issues on appeal. Shannon appeals from a judgment entered after the trial court granted Marshalls motion for summary judgment. The sole issue on appeal here is whether the trial court erred in lifting its stay of the malpractice proceedings while Shannons collateral habeas proceeding is still pending. Court conclude that the trial court erred in lifting the stay prematurely. Accordingly, Court shall reverse the judgment.

A jury acquitted defendant Daniel David Hammond of criminal threats, a felony (Pen. Code, 422; undesignated section references are to this code) but convicted him of battery against a cohabitant, a misdemeanor ( 243, subd. (e)(1)).
Granted probation, defendant appeals, contending the trial court committed prejudicial error in failing to instruct on self-defense. Court disagree and affirm the judgment.

Defendant Matthew Charles Griffin appeals after being found in violation of the terms of his probation. He alleges the petition for revocation of probation did not meet the due process requirement of adequate written notification of the alleged probation violations. Court affirm.