CA Unpub Decisions

Based on Robert Nelson’s participation in a prison beating inflicted on a fellow inmate, the jury convicted him of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); all further undesignated statutory references are to this code) and active participation in a criminal street gang (§ 186.22, subd. (a)), and found true the alleged gang enhancement (§ 186.22, subd. (b)) on the assault charge. The trial court sentenced Nelson to four years in prison. He challenges the sufficiency of the evidence to support the jury’s conclusion the primary activities of the white supremacist group to which he belonged qualified it as a criminal street gang. In particular, he argues evidence of relatively few specific instances of crimes committed by individual gang members was insufficient to establish those offenses as primary activities of a 100-member group, but a gang expert’s opinion alone is enough under Supreme Court precedent to decode the gang’s p

A jury found Alejandro Maganda (Maganda) to be a sexually violent predator (SVP). He argues that the jury’s finding must be overturned for a number of reasons. Most of his arguments lack merit, but he is correct that the trial court erred in allowing the People’s experts to testify to case-specific facts that are inadmissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Because that testimony was prejudicial, we are compelled to reverse.

Defendant Daniel Richard Loyola was a passenger in a vehicle that was stopped by sheriff’s deputies. A deputy saw defendant trying to swallow a piece of paper. The deputy ordered defendant to spit the paper out, but he refused. The deputy physically prevented him from swallowing it, and defendant ultimately spit it out. The paper turned out to be a forged check. Defendant was arrested, and a key to a stolen vehicle was found in his pocket. Defendant was on active postrelease community supervision (PRCS) at the time of his arrest. Defendant was charged by complaint in case No. C1628079 with receiving a stolen vehicle with a prior conviction for vehicle theft (Pen. Code, §§ 496d, 666.5), and it was further alleged that he had suffered a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a prison prior (§ 667.5, subd. (b)). He was charged by complaint in case No. C1628087 with forgery (§ 470, subd. (d)), destroying evidence (§ 135), misdemeanor possession of methamphetam

Around midnight on December 2, 2006, defendant Joseph Lopez, Jr. (Lopez), his father Joseph Lopez, Sr. (Lopez, Sr.), and three codefendants encountered Matthew Toste and two female companions in a parking garage next to Club 7 in downtown Santa Rosa. Lopez and his companions made sexually inappropriate comments to the women, pushed and surrounded them, and grabbed them inappropriately. When Toste confronted the men, Lopez, Sr. attempted to punch Toste but missed. Toste punched Lopez, Sr., knocking him to the ground. Lopez then shot Toste twice. Lopez fled the scene and Toste died from his wounds.

Appellant Miguel Angel Lemus was convicted of one count of attempted second degree robbery. On appeal, he challenges his conviction on the basis of insufficiency of the evidence, instructional error, and prosecutorial misconduct; additionally, he contends the minute order from the sentencing hearing and the abstract of judgment erroneously reflect the imposition of a $10 fine (Pen. Code, § 1202.5) and a related $29 assessment. We reject his contentions, with the exception of his challenge to the sentencing minute order and abstract of judgment. We therefore affirm the judgment, and direct the preparation of a corrected sentencing minute order and abstract of judgment.

In 1994, appellant Lawrence Vernon Jones was convicted of perpetrating assault, mayhem, and various sex crimes upon a woman and sentenced to 78 years in prison. This court affirmed his convictions on direct appeal (People v. Jones (April 5, 1995, B084730) [nonpub. opn.]), but ordered a limited remand for the trial court to stay execution of sentence on the mayhem count and correct clerical errors in the abstract of judgment. On remand, the trial court stayed appellant’s mayhem sentence as directed.
On May 4, 2016, appellant filed a document he captioned “PETITION FOR WRIT OF MANDATE/PROHIBITION.” In it, he alleged that the California Department of Corrections and Rehabilitation (CDCR) has “‘illegally’ been adjusting my Term on a April 04, 1994 sentence, Case No LA015282 . . . useing a number of illegal-type Enhancing Schemes, on at least 9-12 times, on ONE (1) alleged 09/11/1993 date, that I was found ‘NOT GUILTY’ by a Jury, on March 02, 1994.” All errors and e

On October 2, 2015, appellant Anthony Eugene Hodges pled no contest to one count of possessing methamphetamine while possessing a loaded, operable firearm. He was released on his own recognizance (OR) pursuant to a Cruz waiver, and agreed that if he failed to appear for sentencing, the upper term would be imposed for his conviction and he would not be allowed to withdraw his plea. Hodges failed to appear and a bench warrant issued. At sentencing, the trial court imposed the midterm of three years and Hodges appeals this as an abuse of discretion. We affirm.

A jury convicted defendant Jesse Garcia of first–degree murder (Pen. Code § 187, subd. (a); count 1), with a true finding on the allegation that he intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)), and of assault by means likely to cause great bodily injury (§ 245, subd. (a); count 4). In a bifurcated proceeding, the court found the gang enhancement (§ 186.22, subds. (b)(1)(C), (b)(4)) true as to the murder count, but not as to the assault count. The court sentenced defendant to an aggregate prison sentence of 50 years to life.

A jury convicted appellant Allen Danford of second degree robbery, in violation of Penal Code section 211. It also was found true that he had suffered a prior strike conviction and served a prior prison term. Danford contends his conviction must be reversed because the prosecutor committed misconduct in closing argument. We disagree and affirm.

Defendant Nicole Yvonne Cunningham (who also goes by her married name of Nicole Bivin) appeals the judgment imposed following her plea of no contest to several charges and imposition of a prison sentence of six years eight months in accordance with her plea agreement. Her attorney has submitted a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 and has advised defendant of her right to submit a supplemental brief, which she has not done. This court’s review of the record disclosed no issues warranting further briefing except with respect to the calculation of two fines included in the sentence, as to which further briefing was requested and submitted.

A jury convicted defendant Mitchell P. Leahy of first degree residential burglary of Ryan Y. (Pen. Code, § 459; count one), unlawfully taking a firearm worth more than $950 (§ 487, subd. (d)(2); count two), robbery of Vickie L. in the first degree (§ 211; count three), and first degree residential burglary of the occupied residence of Vickie L. (§ 459; count four). With respect to counts three and four, the jury found true defendant personally used a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) With respect to count four, the jury also found true that another person, other than an accomplice, was present in the residence during the commission of the burglary. (§ 667.5, subd. (c)(21).)
On appeal, defendant contends the trial court erred in imposing the upper term on count three. In addition, defendant contends the trial court improperly stayed counts two and four without first imposing sentence and erroneously calculated his presentence credits, which the People

After the magistrate denied his motion to suppress at the preliminary hearing, defendant Felix Chi Duong pleaded guilty to cultivating marijuana (Health & Saf. Code, § 11358), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)) in exchange for the dismissal of all remaining charges plus a resolution of several other pending cases. Defendant did not renew his motion to suppress before the trial court prior to accepting the plea deal.

From February 2008 through May 2009, Mills was an associate attorney at Bradley & Gmelich, working as a part of team of attorneys representing Kay in a multi-party legal and accounting malpractice action known as Kay v. Silver & Freedman (the Silver & Freedman action). The Silver & Freedman action involved Kay’s personal financial records and tax returns for the prior seven years. During the 15-month period that Mills worked on the Silver & Freedman action, he billed a total of 130.1 hour performing legal services on behalf of Kay, which averaged 8.7 hours per month. Mills left Bradley & Gmelich in September 2009, and was unsure of the status of the Silver & Freedman action when he left.
Five years later in 2014, Motorola Solutions, Inc. filed a fraudulent transfer action against Ann Pick (Pick) and others (the Motorola action). Pick retained Mills to represent her. In December 2015, Mills filed a cross-complaint on Pick’s behalf against multiple cross-defendants, includin

The juvenile court found 15-year-old Michael F. (born April 2000) committed misdemeanor false representation to a peace officer (Pen. Code, § 148.9, subd. (a) [count 1]; all further statutory citations are to the Penal Code unless noted) and resisting and obstructing an officer (§ 148, subd. (a)(1) [count 2]; see Welf. & Inst. Code, § 602). Michael contends police officers unlawfully detained him, and insufficient evidence supports the findings he committed the offenses. For the reasons expressed below, we affirm the order.