CA Unpub Decisions

Defendant, Ayman Youssf Abdou, appeals after he was found in violation of his probation. We find: defendant received an incorrect award of presentence credits; the Penal Code section 1202.45 parole revocation restitution fine must be reversed; the trial court should have imposed a state court construction penalty (Gov. Code, 70372, subd. (a)) on the criminal laboratory analysis fee; the state surcharge (Pen. Code, 1465.7, subds. (a), (b)) should have been imposed on the laboratory analysis fee; and an additional court security fee (Pen. Code, 1465.8, subd. (a)(1)) should have been imposed. We modify the judgment accordingly and direct the trial court to personally insure the abstract of judgment is corrected. Court affirm the judgment in all other respects.

Defendant appeals from the judgment of conviction after a jury found him guilty of first degree murder (Pen. Code, 187)[1]and found true the special circumstance that the murder was committed during the commission of a robbery ( 190.2, subd. (a)(17)) and that he personally used and intentionally discharged a firearm causing death. ( 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d)). The court sentenced him to a prison term of life without the possibility of parole with a consecutive term of 25 years to life for the firearm enhancement.

On appeal, defendant contends the trial court improperly denied his Batson/Wheeler motion, abused its discretion when it allowed the prosecutor to cross-examine him on his gang affiliation, excluded defense evidence that the victim had heroin in his blood, and gave a fact intrusive instruction on robbery. Court find no prejudicial error and affirm the judgment.

A jury convicted defendant Mikhael Vlasov of the first degree felony murder of Cindy Chung during the commission of an attempted carjacking, attempted kidnapping of Amado Lopez to commit robbery, attempted robbery, attempted carjacking, and assault with a firearm. The jury found true various firearm enhancements, including that defendant personally and intentionally discharged a firearm in the commission of Chungs murder and the attempted kidnapping of Lopez. Defendant was sentenced to state prison for life without parole for the murder of Chung, plus 25 years to life for the intentional use of a firearm in committing that offense, and a determinate term of 27 years to life for the remaining charges. On appeal, defendant contends the trial court erred in joining the Chung and Lopez charges for trial, in refusing an instruction on the defense of duress, and in excluding expert testimony regarding traumatic bonding relevant to his duress defense. He also claims there is insufficient evidence he intentionally discharged a firearm in the murder of Chung. Court affirm the judgment.

After the State Personnel Board (SPB) rendered its adverse findings, state employee Anita McDaniel-Conway continued to prosecute her whistleblower claim (Gov. Code, 8547.3; Lab. Code, 1102.5) without requesting a hearing and without challenging those findings by mandamus. She contends she has the right to pursue a civil action for damages once the SPB issues or fails to issue findings and her government claim is rejected. The trial court granted the Office of Statewide Health Planning and Developments (Department) motion for judgment on the pleadings. Court affirm.

A jury convicted defendant Kenneth Glen Whitfield of two counts of corporal injury and one count of assault with a deadly weapon against his live-in girlfriend, Virginia W., as well as one count of criminal threat against Virginias uncle, Marvin W. (Respectively, Pen. Code, 273.5, subd. (a), 245, subd. (a)(1), 422.) The jury also found that defendant used a weapon during the criminal threat offense. ( 12022, subd. (b)(1).) The jury deadlocked on another count of criminal threat (with Virginia the alleged victim) and a count of assault with a deadly weapon (with Marvin as the victim), and a mistrial was declared on those two counts. Sentenced to seven years in state prison, defendant appeals. He contends the trial court (1) violated his confrontation rights by admitting into evidence a statement that Marvin had given to a police officer; (2) erroneously admitted evidence of prior domestic violence; (3) violated his right to a public trial by ordering his daughter to leave the courtroom temporarily; (4) erroneously allowed the People to amend the information to add the criminal threat charge involving Marvin; (5) failed to instruct on the lesser included offense of attempted criminal threat; and (6) violated his jury trial (and related due process) rights by imposing an upper term. Court find no prejudicial error and affirm the judgment.

A jury found true an allegation that defendant Byron Scott Massey is a sexually violent predator (SVP) who is likely to engage in sexually violent predatory criminal behavior if released from custody. Based on the jury finding, defendants commitment to the state Department of Mental Health (Mental Health) was extended to December 2007. On appeal, defendant contends: (1) his due process right to confront witnesses was violated by the use of hearsay evidence to prove matters other than his predicate convictions; (2) there was insufficient evidence to support the jurys finding that he satisfied the criteria for recommitment as an SVP; and (3) there was insufficient evidence that his mental disorder or deficiency causes him serious difficulty in controlling his sexual behavior. Court affirm the judgment.

jury found defendant Cliff Bo Makihele guilty of two counts of second degree robbery, both charged as serious felonies within the meaning of Penal Code section 1192.7, subdivision (c),[1]and two counts of kidnapping during the commission of a carjacking. The jury also found true as to all four counts the special allegation that defendant personally used a firearm in the commission of the offenses. The trial court denied defendants motion for a new trial and sentenced him to 34 years to life in prison. On appeal, defendant contends the trial court erred by applying the wrong standard when it denied his motion for a new trial. Court affirm the judgment.

A jury convicted defendant Ronald Raymond Wilson on one felony count of driving under the influence of alcohol or drugs (DUI). (Count 1; Veh. Code, 23152, subd. (a).) Defendant waived jury trial on the allegations of a prior conviction and a prior prison term. (Veh. Code, 23550.5; Pen. Code, 667.5, subd. (b).) Outside the jurys presence, defendant pled no contest to a misdemeanor charge of driving with a suspended or revoked license. (Count 2; Veh. Code, 14601.1, subd. (a).)
Defendant contends that the trial court erred by refusing to consider his alcoholism as a mitigating factor; he also contends that his upper-term sentence violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm.

Defendant Robert Kyle Russell appeals from his felony conviction of willful infliction of corporal injury upon his former cohabitant. (Pen. Code, 273.5, subd. (a).) He claims the trial court erred in not instructing the jury sua sponte on the defense of accident. Court disagree and affirm the judgment.

After the trial court found invalid the proofs of service filed by pro se incarcerated plaintiff Bryon Ames, it dismissed the complaint without prejudice. Ames contends the court erred by dismissing the complaint; in his view, service was valid and proper and defendants did in fact receive the complaint. Court find no error in the courts action and affirm the judgment.

March 2000, based upon defendant Thomas McCaffreys having been found in possession of methamphetamine during a traffic stop, he pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and was placed in the deferred entry of judgment program (Pen. Code, 1000 et seq.).
In December 2001, defendant admitted being in violation of the conditions of his deferred entry of judgment and was placed on Proposition 36 probation. After having been found in violation of probation for the fourth time (contracting without being duly licensed and being an unlicensed driver), the court reinstated defendants probation and ordered him sentenced to county jail for 210 days, with probation to terminate unsuccessfully after completion of his sentence. The judgment is affirmed.

Plaintiff Stacey Leigh James brought this personal injury action against defendants Donald and Anita Niemann and their daughter, Aja Niemann,[1]for injuries James sustained in an automobile accident in August 2002. James alleged the accident occurred when Aja, who was driving a vehicle owned by her parents while intoxicated, crossed over the center line and struck Jamess vehicle head-on. James alleged the Niemanns were liable because they knew, or should have known, Aja . . . was not fit to drive the vehicle.
The Niemanns moved for summary judgment on the ground (among others) that they could not be held liable for negligently entrusting the vehicle to Aja because Aja was not a reckless or irresponsible driver before the accident or, at the very least, they had no notice she was. The trial court granted their motion, concluding there was no evidence from which Donald or Anita Niemann knew or could have known of any propensity on their daughters part to drink and drive. On appeal James contends there was a triable issue of fact as to whether the Niemanns had the information from which they could draw an inference of unfitness and [therefore] had an affirmative duty to inquire. According to James, a reasonable inference can be drawn from the evidence that Aja had previously driven the vehicle while intoxicated and that her parents, under the circumstances, should have inquired about her drinking and driving habits.
Court disagree. As will be shown, James has failed to identify any evidence from which a reasonable jury could have found the Niemanns knew or should have known that Aja was driving while intoxicated. Accordingly, Court affirm the judgment in favor of the Niemanns.

A modification decision.

Defendant Larry Joseph Levine pled no contest to one count of driving under the influence (DUI) with a blood alcohol concentration above 0.08 percent, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (b)) and admitted two prior convictions of the same offense (Veh. Code, 23566, subd. (b)). In return, the People agreed to dismiss the charge of driving under the influence, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (a)) and allegations of a prior strike as to both counts (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The trial court sentenced defendant to four years in state prison, the upper term. The court found three aggravating factors, including numerous prior convictions, a prior prison term, and defendants on-probation status at the time of the offense; the court found no factors in mitigation. Defendant appeals, contending that his sentence violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm.