CA Unpub Decisions

Santo Diaz pleaded guilty to voluntary manslaughter of Melanie V. and Edgar S. (Pen. Code, § 192, subd. (a); counts 1, 2) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3, 4). He admitted the truth of allegations that he committed the manslaughters while armed with a firearm (§ 12022, subd. (a)(1)), and committed all of the felonies for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). Diaz agreed to be sentenced to a prison term in the range of 28 to 44 years. The court ultimately sentenced him to 39 years in prison. He contends the court abused its discretion and it should have sentenced him to a lower prison term. Finding no error, we affirm.

After the trial court found Ricky Lesser unable to competently represent himself at trial, a jury convicted him of making a criminal threat (Pen. Code, § 422) and battery
(§ 242). In a bifurcated proceeding, the jury found true allegations that he had suffered two prior convictions that qualified as serious felonies (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and strikes (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Lesser to 25 years to life in state prison for the criminal threat, plus 10 years for the two serious felony prior convictions. It sentenced Lesser to a concurrent term of 180 days in jail for the battery.

E.A. appeals from an order denying his request to seal his record (Welf. & Inst. Code, § 786) after the juvenile court terminated home on probation on a sustained petition for felony grand theft (Pen. Code, § 487, subd. (a)). Appellant contends that he successfully completed probation and that section 786 mandates that his juvenile record be sealed. We affirm.

Petitioner Tara Sheneva Williams (Williams) has filed a petition for a writ of habeas corpus contending that this court’s 2002 affirmance of her first-degree-murder special circumstance conviction must be reversed in view of the California Supreme Court’s decision in People v. Banks (2015) 61 Cal.4th 788 (Banks). The Banks opinion provided an authoritative explanation for the “major participant” and “reckless indifference to human life” elements of Penal Code section 190.2, subdivision (d), in the context of a felony-murder special circumstance allegation against an aider and abettor who merely acted as a getaway driver in an armed robbery.

Mother Deserie V. appeals from a disposition order concerning her son, Andrew. Mother was incarcerated at various points during the case and was not present for the adjudication hearing. She contends her absence at that hearing violated her due process right to present evidence and her statutory right to be present under Penal Code section 2625, subdivision (d). Mother also argues that the court’s findings that both she and Andrew’s father, Michael G., who is not party to this appeal, suffered from substance abuse problems that placed Andrew at risk of harm, that were not supported by substantial evidence.
We conclude that any violation of mother’s statutory right to appear at the adjudication hearing was harmless. We further conclude that substantial evidence supported the court’s findings regarding her substance abuse problems and the risk they pose to Andrew.

We affirm the order terminating mother Y.R.’s parental rights over her children F.T. and L.T. Mother challenges the juvenile court’s order, arguing that her parental rights should not have been terminated because she had a beneficial relationship with the children that outweighed the permanency of adoption. No evidence supports her argument, and it therefore lacks merit.

A.C. (Mother) appeals from an order denying her Welfare and Institutions Code section 388 petition regarding court ordered visitations between Mother and her four children. Because the court erred in denying Mother’s request for a hearing pursuant to her section 388 petition, we reverse and remand the case in order for the court to hold a hearing on the issue of visitation.

Jazmin V. (mother) and Richard V. (father) appeal from the disposition order of the juvenile court finding jurisdiction over C.V. We reverse.
A petition filed August 26, 2016 alleged that under Welfare and Institutions Code section 300, subdivision (b), father and mother failed to protect then three-month-old C.V. and put him in danger of harm “in that a rifle and ammunition were found in the child’s home within access of the child.” Mother knew father possessed the firearm and ammunition in the home, and father had a criminal history involving firearms and had been arrested for felon in possession.

A jury convicted John Martin (defendant) of assault with a deadly weapon. The conviction arose from an incident in which defendant confronted a woman on the street with a knife, walked her into a nearby liquor store, and stabbed a store employee after being asked to leave. The events inside the liquor store were captured on surveillance video, and the police also recovered the knife and a bloody shoe believed to be defendant’s. The main issues we consider are whether the prosecution committed misconduct during closing argument by stating the knife and shoe were available to the defense for forensic testing, and whether the trial court erred by not convening a Marsden hearing. We also address two asserted sentencing errors, one of which requires a remand for further proceedings.

Defendant and appellant Rickelldrick White (defendant) appeals his convictions at trial for (1) sexual penetration by a foreign object and (2) making criminal threats. Both offenses were committed against the same victim, with defendant making the criminal threats after having been arrested for the sexual penetration offense and while released on bail. We consider whether the trial court abused its discretion by joining both charges together for trial and, at trial, by excluding evidence of the victim’s sexual history as a teenager.

Defendant and appellant Gary Crownover challenges his conviction for robbery, in violation of Penal Code section 211. Crownover contends that the trial court violated his right to due process by allowing evidence of an out-of-court identification that he alleges was unduly suggestive and unreliable. He also contends that the trial court erred by allowing the prosecutor to recall him as a witness, and that the prosecutor committed misconduct by making improper arguments during closing argument. We affirm.

Defendant and appellant Andrew Garcia appeals the trial court’s denial of his petition to designate his felony conviction of Vehicle Code section 10851 a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. Because Garcia committed his offense and was convicted long after Proposition 47’s effective date, and because Vehicle Code section 10851 is not an offense eligible for redesignation under Penal Code section 1170.18, we affirm the trial court’s order.

Plaintiff and appellant Douglas Turner appeals from a judgment of dismissal of his complaint following an order sustaining a demurrer without leave to amend and a postjudgment order of sanctions in favor of defendants and respondents Pierre Moeini and Harte, LLC. A prior action between the same parties ended in a stipulated settlement and dismissal of the action. In the instant case, the trial court found the complaint was barred by the doctrine of claim preclusion. On appeal, Turner contends: (1) the prior proceeding did not involve the same claims; (2) Turner did not release his claims in the settlement; (3) Harte was not a party to settlement; and (4) he can amend the complaint to allege fraud or misconduct related to the actions of the receiver in the prior case.

Appellant/plaintiff Luis Gutierrez (Gutierrez) appeals from a judgment following an order granting judgment on the pleadings in favor of respondents/defendants Thomas V. Girardi and Girardi & Keese (collectively G&K). Gutierrez contends the trial court erred in ruling that his complaint was barred by the statute of limitations. We reject his arguments and affirm.