CA Unpub Decisions

Defendant Mario Alexander Sandoval appeals following his conviction of voluntary manslaughter (Pen. Code, 192, subd. (a))[1]and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), with an enhancement on the assault count for causing the victim to become comatose and suffer paralysis ( 12022.7, subd. (b)). Defendant contends the trial court erred in failing to instruct the jury on involuntary manslaughter, and a jury instruction misled the jury into believing defendant could be convicted of voluntary manslaughter on a finding that he was criminally negligent. Court affirm the judgment.

The facts of this case are all too common. A gang member disrespects a rival gang member, threats are made, a weapon is retrieved, and someone is needlessly killed over mere words. As a consequence of misguided bravado, defendant Orlando Delatorre -- who was 14 years old when the killing occurred but was tried as an adult -- will likely spend the rest of his life in prison for aiding and abetting the murder of Adrian Cortez.

A jury found defendant guilty of first degree murder, three counts of attempted murder with premeditation and deliberation, participation in a criminal street gang, possession of a loaded weapon by an active gang member, and possession of a sawed-off shotgun. The jury also found that a principal intentionally discharged a firearm in the commission of the murder, and that the attempted murders were committed on behalf of a criminal street gang. The trial court sentenced defendant to a determinate term of two years in state prison, and an indeterminate term of 95 years to life plus three consecutive life sentences. On appeal, defendant raises various challenges to the trial courts jurisdiction, the voluntariness of defendants confession, the sufficiency of the evidence, the instructions given, and the sentence imposed. Court modify the judgment by imposing the middle term of two years on the count 5 conviction (participation in a criminal street gang) and the count 7 conviction (unlawful possession of a loaded firearm) and by striking the enhancements of 15 years to life on the attempted murder counts (counts 2-4) and replacing them with a 15-year minimum parole eligibility date pursuant to Penal Code section 186.22, subdivision (b)(5), and shall affirm the judgment as so modified.

A jury convicted defendant Robert Lawrence Tarr of continuous sexual conduct with a child under the age of 14 (Pen. Code, 288.5, subd. (a); undesignated section references are to the Penal Code); the jury also found that he committed great bodily injury ( 12022.7, subd. (a)) and engaged in substantial sexual conduct with a victim under the age of 14 ( 1203.066, subd. (a)(8)). The trial court sentenced defendant to 19 years in state prison (the upper term of 16 years under section 288.5, subd. (a)), plus three years consecutive for the great-bodily-injury enhancement). Defendant contends: (1) The trial court denied defendants due process right to present a defense and to confront the witnesses against him by denying him the opportunity to put on evidence of the complaining witnesss sexual history. (Evid. Code, 782.) (2) The record does not support the finding of great bodily injury because pregnancy alone is not great bodily injury. (3) The trial court committed Cunningham error (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]) by imposing the upper term based on facts not tried to the jury and found true beyond a reasonable doubt. Court affirm.

A jury convicted defendant Hector Daniel Mendoza of second degree robbery (Pen. Code, 211; count 1), attempted carjacking (Pen. Code, 664/215, subd. (a); count 2), unlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a); count 3), evading a police officer (Veh. Code, 2800.2, subd. (a); count 4), possession of a firearm by a felon (Pen. Code, 12021, subd. (a); count 5), possession of a short-barreled shotgun (Pen. Code, 12020, subd. (a)(1); count 7), two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(2); counts 8 and 11), discharging a firearm in a grossly negligent manner (Pen. Code, 246.3, subd. (a); count 9), grand theft (Pen. Code, 487, subd. (c); count 10), drawing or exhibiting a firearm to a motor vehicle occupant (Pen. Code, 417.3; count 12), possession of a loaded firearm on his person or in a vehicle by a felon (Pen. Code, 12031, subd. (a)(2)(A); count 13), resisting arrest (Pen. Code, 148, subd. (a)(1); count 14), and providing false identification to a police officer (Pen. Code, 148.9, subd. (a); count 15), and found defendant personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1) in counts 1, 2, 8, and 11, and within the meaning of section 12022.53, subdivision (c) in count 1 and section 12022.53, subdivision (b) in count 2.
The judgment is modified by staying service of the sentence imposed on count 13, possession of a loaded firearm on his person or in a vehicle by a felon.

A jury convicted Christopher P. Ortega of one count of receiving stolen property (Pen. Code, 496, subd. (a)). The trial court placed Ortega on three years' probation, conditioned on, among other things, his serving 270 days in jail and paying restitution. Ortega appeals, contending the court erred by not giving a unanimity instruction to the jury. The judgment is affirmed.

A jury convicted Gary Leon Peavy of possessing heroin for sale (Health & Saf. Code, 11351), possessing heroin (Health & Saf. Code, 11350, subd. (a)), possessing marijuana (Health & Saf. Code, 11357, subd. (b)), possessing cocaine (Health & Saf. Code, 11350, subd. (a)), possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)), and possessing cocaine base for sale (Health & Saf. Code, 11351.5). Peavy admitted his prior felony convictions, and the court sentenced him to prison for five years and eight months. Peavy appeals, contending the evidence of dominion and control was insufficient to support his conviction for possession of a firearm by a felon and possessing heroin and cocaine base for sale, his due process rights were violated when the court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 220, and his constitutional rights were violated by the imposition of consecutive sentences without a factual finding by the jury. Court affirm the judgment.

The San Diego Deputy Sheriffs' Association (the Association) and Deputy Sheriffs Cesario Avila and Rosemarie Kurupas (collectively with the Association, the claimants) sued the County of San Diego and certain related parties (collectively, the County), contending that the County had failed to afford the officers the rights to which they were entitled under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, 3300 et seq. (the Act) relating to performance-related memoranda and e-mails. The court found in favor of the claimants and, after finding that the County acted with malice, imposed certain penalties and awarded the claimants their attorney fees under the Act. On appeal, this court reversed the judgment as to the award of fees and penalties and otherwise affirmed in an unpublished opinion. (San Diego County Deputy Sheriffs' Association v. County of San Diego, D046774, May 31, 2006 [unpub. opn.].)
On remand, the trial court granted a motion by the Association to recover its attorney fees pursuant to Code of Civil Procedure section 1021.5. (All further statutory references are to this code except as otherwise noted.) The County appeals, contending that the statutory criteria for granting an award of fees on a "private attorney general" theory were not satisfied. Court agree that the statutory requirement of a significant benefit to the public or a large group of people has not been met and reverse the judgment on that basis.

Russo Bailey entered a negotiated guilty plea to possession of a concealed firearm in a vehicle (Pen. Code, 12025, subd. (a)(1)) and admitted he had a prior firearm conviction within the meaning of Penal Code section 12025, subdivision (b)(1), which made the offense a felony. The trial court suspended imposition of sentence and placed Bailey on summary probation for three years, conditioned on, among other things, his serving 283 days in jail. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Bailey on this appeal.

Joseph C., father of juvenile dependent Matthew D., appeals from orders entered at the 12 month permanency hearing, after the court found a return of Matthew to his custody would create a substantial risk of detriment to the minor. (Welf. & Inst. Code, 366.21, subd. (f).)[1] Joseph argues the court's finding of detriment is not supported by substantial evidence. The San Diego County Health and Human Services Agency (Agency) urges us to find this appeal moot as, subsequent to the hearing, Matthew was placed with Joseph. Alternatively, the Agency contends the court's finding of detriment is amply supported in the record and the orders should be affirmed.As Corut explain, Corut decline to dismiss Joseph's appeal, and Court affirm the orders made at the 12 month review hearing, as Joseph has waived his appellate challenges.

James M. Kinder sued Northland Group, Inc. (Northland), alleging it violated the Telephone Consumer Protection Act of 1991 (47 U.S.C. 227) (TCPA) by making automated calls to the number assigned to his paging service. The court sustained without leave to amend Northland's demurrer to the first amended complaint, concluding the action was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340. The court entered judgment for Northland. Kinder appeals, contending the case is governed by the four-year statute of limitations set forth in 28 United States Code section 1658, as this court held in Sznyter v. Malone (2007) 155 Cal.App.4th 1152.) The judgment is reversed.

G.A. and E.G. appeal the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, they ask this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his [or her] custody of a child or his [or her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny their requests to review the record for error and to address E.G.'s Anders issue. (Anders v. California (1967) 386 U.S. 738.) G.A.'s and E.G.'s counsel also request leave for them to file supplemental briefs in propria persona. The requests are denied. The appeals are dismissed.

This case arises out of a collision between plaintiff Justin Fitch and Jesus Ramirez at an intersection in Moreno Valley. Fitch sued the City of Moreno Valley (City), alleging that the City is responsible for his injuries because the intersection constituted a dangerous condition of public property. The trial court granted the Citys motion for summary judgment, and Fitch appealed. Court reverse.

Cathy L. Rother and Carl B.A. Lange III separated in June of 2000 after six years of marriage. During the marriage, they entered into a community property agreement and a trust agreement. In the dissolution of marriage action, Lange challenged the effectiveness of these two agreements to transmute his separate property interest in his state retirement to community property and, if there was a valid transmutation, Lange claimed a right of reimbursement. The trial court ruled against him on both issues.
Lange also sought to set aside the trial courts statement of decision eight months after its entry. That request was denied. After entering into a stipulation regarding the value of real property awarded to Rother, Lange sought to set aside the stipulation and the trial court denied the request. Lange challenges these rulings. Court affirm the judgment.

On May 12, 2006, the Fresno County District Attorney filed a consolidated information in superior court charging appellant and codefendant Markeith Edward Canady as follows: Count 1second degree robbery of Stephen Montenegro (Pen. Code, 211) with personal use of a firearm by Canady ( 12022.53, subd. (b)) and with appellants knowledge that a principal to the substantive offense was personally armed with a firearm ( 12022, subd. (d)); Count 2second degree robbery of Antonio Palomares ( 211) with personal use of a firearm ( 12022.53, subd. (b)) (appellant only); and Count 3second degree robbery of Jose Becerra ( 211) with personal use of a firearm ( 12022.53, subd. (b)) (appellant only). On May 17, 2006, the fifth day of trial, both sides rested.
The judgment is affirmed.