CA Unpub Decisions

Johnny Scott Garcia and Daniel Marquez appeal from their convictions for a two-man crime wave over several days in February 2005, including home invasion robberies, kidnapping, shooting at an occupied vehicle, attempted murders, and murder. Court reverse and remand for retrial on all charges.

Defendant Juan Morales appeals following his conviction of three counts of robbery, two counts of possession of a firearm by a felon, kidnapping for ransom, and accessory after the fact. He contends: (1) there was insufficient evidence of intent to support the robbery convictions; (2) the trial court improperly instructed the jury and trial counsel was ineffective in failing to request two instructions; (3) the gang enhancement was not supported by substantial evidence; (4) the trial court should have corrected sua sponte prejudicial prosecutorial misconduct; (5) sentence on some counts should have been stayed pursuant to Penal Code section 654; and (6) a gun use enhancement was improperly calculated. Court affirm.

Devon Jay Watson appeals his convictions for one count of residential burglary (Pen. Code, 459),[1] and 11 counts of receiving stolen property. ( 496, subd. (a).) Watson admitted a prior conviction for a serious or violent felony, and was sentenced to 30 years four months as a second strike offender, including a six-year upper term for the burglary. He contends there is insufficient evidence to support one of the receiving stolen property offenses, the trial court abused its discretion in denying his Romero motion, and imposition of the upper term burglary sentence violated his right to a jury trial. Court affirm.

Appellant Brounche Stephan Green was found guilty of five offenses arising from a single incident in which he physically attacked and terrorized his cohabitant, Trista Abdullah-Raheem, and her children: (1) corporal injury to a cohabitant; (2) assault by means of force likely to produce great bodily injury; (3) making a terrorist threat; (4) dissuading a witness; and (5) false imprisonment. Because appellant was a third-strike offender, the trial court sentenced him to five consecutive life sentences. On appeal, he contends: (1) the court was required to give a unanimity instruction because the terrorist threat and dissuading a witness charges were supported by multiple, discrete acts; (2) the court was required to stay sentence on certain of the charges under Penal Code section 654; and (3) the sentence imposed represents cruel and unusual punishment. Court conclude that the sentences on two of the charges should have been stayed and otherwise affirm.

The trial court granted a special motion to strike the complaint in a malicious prosecution action because the plaintiff had not shown that the underlying lawsuit lacked probable cause. The trial court erred. A person who sues on allegations he knows are false lacks probable cause for that suit. In this case, the plaintiff presented evidence that the factual allegations underpinning the defendants lawsuit were false. This evidence, if believed by the trier of fact, constituted a prima facie showing of no probable cause. Accordingly, the plaintiffs malicious prosecution complaint appeared to have merit, and the trial court should have denied the defendants special motion to strike it. The order granting the special motion to strike the complaint is reversed and the cause is remanded to the trial court with instructions to vacate the order and subsequent judgment of dismissal and to enter a new order denying the motion. James Stiebinger is to recover his costs on appeal.

Plaintiff Kris Krishnan appeals from the summary judgment entered for defendants Cedars-Sinai Medical Center and Dr. Doran Kim. After concluding that the trial court properly struck Krishnans untimely summary judgment opposition, Court hold that defendants moving papers were sufficient to justify the summary judgment and therefore affirm.

Joseph James Dwyer appeals from the judgment after a jury convicted him of voluntary manslaughter with a finding of personal use of a deadly weapon. (Pen. Code, 192, subd. (a), 12022, subd. (b)(1).) The trial court sentenced him to state prison for 12 years, including an 11 year upper term for manslaughter and a one year deadly weapon use enhancement. Appellant contends that the trial court committed evidentiary and instructional errors and violated his constitutional right to a jury trial by relying on facts that were not found by a jury to select an upper term sentence. Court affirm.

Defendant David J. Reese appeals from a judgment entered after the jury convicted him of count 1, forcible rape (Pen. Code, 261, subd. (a)(2)),[1]count 2, first degree burglary ( 459), count 3, attempted escape ( 4532, subd. (b)(2)), and count 4, bribing an executive officer ( 67). The jury found true the allegations that defendant personally used a deadly or dangerous weapon within the meaning of sections 12022.3 and 667.61, subdivision (e)(4), and that he committed the offense during the commission of a burglary within the meaning of section 667.61, subdivision (e)(2). Appellant was sentenced to a total of 27 years to life in state prison. The trial court selected count 1 as the base count and sentenced him to 25 years to life. As to count 2, the trial court selected the midterm of four years and stayed that term pursuant to section 654. The trial court imposed a low term of two years as to count 3, to be served consecutive to the term imposed on count 1. It imposed a midterm of three years as to count 4, to be served concurrently with the sentences imposed as to counts 1 and 3.
Court affirm.

Kuntakinte Howard[1]appeals from the judgment entered upon his conviction by jury of assault by means likely to produce great bodily injury (Pen.Code, 245, subd. (a)(1), count 1),[2]three counts of making criminal threats ( 422, counts 2, 7 & 10), stalking ( 646.9, subd. (a), count 5), and burglary ( 459, count 6).[3] The jury also found to be true the special allegation that defendant had suffered two prior felony strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (a) through (i) and two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant as a three-strike offender to an aggregate state prison term of 160 years to life. Defendant contends that (1) there is insufficient evidence to support his burglary conviction, and (2) the trial court erred in advising the jury of proceedings conducted outside of its presence because defendant refused to be cross examined.
court affirm.

Appellant Lomel Hamilton was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187,[1]subdivision (a). The trial court sentenced appellant to a term of 25 years to life in prison. The court imposed various fees, including a $20 security assessment pursuant to section 1465.8, subdivision (a)(1).
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting statements he made in a telephone call to police. Appellant further contends that the court erred in imposing the $20 security assessment. Court affirm the judgment of conviction.

In this dependency case (Welf. & Inst. Code, 300 et seq.),[1]the parents of dependent minor child Darnell M., Jr. (Darnell), have filed appeals from an order that terminated their parental rights. The parents are Vera C., the mother of Darnell (Mother), and Darnell M., Sr., the minors father (Father). The parents contend the trial court committed reversible error by failing to comply with the requirements of the Indian Child Welfare Act (the ICWA, 25 U.S.C. 1901 et seq.). Additionally, Father contends he was denied substantive due process. He asserts he was improperly denied visitation with the minor child, which he contends resulted in preventing him from claiming a parental relationship exception to the Legislative mandate that his parental rights be terminated ( 366.26, subd. (c)(1)(A)). The respondent in this appeal, the Los Angeles County Department of Children and Family Services (the Department) concedes that the notice requirements of the ICWA were not complied with. The Department argues that the case should be remanded for the limited purpose of compliance with such requirements. Court agree. Like the Department, we do not find a denial of Fathers due process rights concerning visitation with Darnell. Therefore, the order terminating the parents parental rights will be reversed and the cause remanded solely for compliance with the ICWA notice requirements and opportunity for an Indian Tribe, if any, to intervene in this matter in the dependency court or obtain jurisdiction over the proceedings by transfer to a tribal court. If after the ICWA notice requirements have been met and there is no such intervention or transfer to a tribal court, the order terminating the parental rights should be reinstated.

In this dependency case (Welf. & Inst. Code, 300 et seq.), Stacy V., the mother of minor children Ean U. and J.F. (Mother, Ean and J., respectively), challenges an order of the dependency court that (1) vacated a previous order of the court and (2) terminated jurisdiction over the minors. The previous order had dismissed the section 300 petition that commenced this case. The Los Angeles County Department of Children and Family Services (the Department) challenged the dismissal of the petition. The Department asserted that termination of jurisdiction rather than dismissal was the proper final order. The trial court agreed, reinstated the petition, and terminated jurisdiction over the minors. Court find that termination of the courts jurisdiction over the minors was proper under section 350 and Court affirm the courts order.

A modification decision.

D.C. (mother) appeals the juvenile court order declaring that her daughter P. is adoptable and terminating her parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1).) She contends that the sibling and parental relationship exceptions to adoption ( 366.26, subds. (c)(1)(A) & (c)(1)(E)) preclude the termination of her parental rights. Court affirm.