CA Unpub Decisions

Appellants Richard Raul Acedo and Antonio Cisneros were jointly tried before a jury and convicted of multiple crimes arising from a "gangbanging" incident. Acedo was convicted of second degree murder (Pen. Code[1], 187, subd. (a), 189), two counts of attempted premeditated murder ( 664, 187, subd. (a)), assault with a firearm ( 245, subd. (a)(2)), and possession of cocaine (Health & Saf. Code, 11350, subd. (a)). Acedo's codefendant, Antonio Cisneros, was convicted of first degree murder ( 187, subd. (a), 189), two counts of attempted premeditated murder, and assault with a firearm. The jury also found true firearm and gang enhancement allegations that were alleged as to each count. ( 186.22, subd. (b), 12022.53, subds. (b)-(e).) The trial court sentenced Acedo to a total term of 157 years to life in state prison, and Cisneros to a total term of 120 years to life. Appellants contend that the court (1) abused its discretion in admitting certain gang evidence; (2) violated its sua sponte duty to bifurcate the gang enhancement allegations; (3) erred in instructing the jury on self-defense, imperfect self-defense, and motive; and that (4) the evidence is insufficient to support the jury's findings that the crimes were committed for the benefit of a criminal street gang, as contemplated by section 186.22. Cisneros also claims he was sentenced to the upper term on the assault count and related enhancement in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856], while Acedo also challenges the sufficiency of the evidence supporting the jury's finding that he personally inflicted great bodily injury in committing the assault with a firearm ( 12022.7) alleged in count 4. Court affirm.

A modification decision.

Mario Picazo was convicted of one count of sexual battery by restraint, one count of burglary, and one count of making a criminal threat, for which he was sentenced to state prison for a term of five years. Picazo appeals, claiming prosecutorial misconduct and ineffective assistance of counsel, and challenging the sufficiency of the evidence in support of his burglary and criminal threat convictions. Court reject his claims of error and affirm the judgment.

Defendant and appellant Michael Anthony Graham appeals from a judgment of conviction following a jury trial. He challenges the judgment in three respects. First, he contends that the trial court prejudicially erred in admitting a victims preliminary hearing testimony after concluding she was unavailable, arguing that the prosecution failed to establish it exercised due diligence in attempting to secure her attendance at trial. Second, he contends that the trial court prejudicially erred in admitting expert testimony concerning the effects of domestic violence. Third, he contends the trial court erred in imposing the upper term on the basis of aggravating factors neither found by the jury nor admitted by him. Court find no merit to these contentions and affirm the judgment.

Two defendants a lawyer and his client in the underlying action filed special motions to strike a malicious prosecution action. Both motions were denied, and both defendants appeal. Court reverse the order denying the lawyers motion but affirm the other order.

this dependency case (Welf. & Inst. Code, 300),[1]two of the subject minor children have each filed an appeal from the judgment. Their trial court appointed attorney has also filed an appeal from the judgment, as have the parents of the minors. These several appeals have been consolidated under case number B192601. All appellants contend the dependency court erred in not holding a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) when one of the minor children requested new appointed counsel. There are also challenges to the sufficiency of the evidence to support the jurisdiction and dependency findings, and mother contends the parents due process rights were violated in several ways during court hearings. Mother also asserts a failure to comply with the requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.). Court affirmed.

this dependency case (Welf. & Inst. Code, 300),[1]two of the subject minor children have each filed an appeal from the judgment. Their trial court appointed attorney has also filed an appeal from the judgment, as have the parents of the minors. These several appeals have been consolidated under case number B192601. All appellants contend the dependency court erred in not holding a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) when one of the minor children requested new appointed counsel. There are also challenges to the sufficiency of the evidence to support the jurisdiction and dependency findings, and mother contends the parents due process rights were violated in several ways during court hearings. Mother also asserts a failure to comply with the requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.). Court affirmed.

The trial court issued a restraining order to keep a woman from harassing her former domestic partner. Court affirm.

A modification decision.

Salvador Tirado appeals from the judgment entered following a jury trial in which he was convicted of two counts of spousal rape (Pen. Code, 262, subd. (a)(1)). He was sentenced to prison for six years and contends the trial court committed prejudicial instructional error. For reasons stated in the opinion Court affirm the judgment.

For 13 years, a two-man partnership successfully bought and sold real property and other investments. When a dispute arose, the managing partner stopped making distributions to himself and to his partner, and instead used all available cash to repay loans he had made to the partnership. The other partner filed suit and obtained a preliminary injunction maintaining the status quo pending resolution of this litigation. The managing partner appeals. Court affirm.

Defendant was found guilty of several charges growing out of a violent assault on his girlfriend. After the only two African-Americans in the jury pool were excused, he unsuccessfully challenged the constitutionality of the countys jury pool selection procedures. In addition, before deliberations began, a sitting juror was discharged by the court after making remarks to other jurors suggesting that she believed defendant was being treated unfairly by the prosecution. Defendant contends that the trial court erred in concluding that he had failed to demonstrate that the jury pool selection process was unconstitutional and in discharging the juror. Court affirm.

John Andrew Olagues appeals his conviction by jury verdict of deprivation of custody of a child. (Pen. Code, 278.5, subd. (a).) He contends his conviction must be reversed because the court lacked territorial jurisdiction over the offense. He also asserts improper venue and lack of substantial evidence to support the conviction because the complainant, his daughters mother, had no valid custodial order establishing her right to custody. And he complains the court erred prejudicially in failing to instruct on contempt as a lesser included offense.

This appeal marks the second time we have been called upon to address claims by architecture professor Hansjoachim Neis arising from his denial of tenure at the University of California, Berkeley (University). Over two years ago, we affirmed a judgment denying Neiss petition for writ of mandate against the Regents of the University of California (Regents). (Neis v. Regents of the University of California (Mar. 21, 2005, A102479) [nonpub. opn.] (Neis I).) While that appeal was pending, Neis filed a new civil complaint against the Regents alleging claims for discrimination, fraud and violation of public policy. The trial court concluded two of these claims were barred by res judicata and one was barred by governmental immunity; accordingly, it dismissed Neiss second complaint at the pleadings stage. Court conclude these rulings were proper and affirm this second judgment in favor of the Regents.