CA Unpub Decisions

Defendant and appellant, Lee Arthur Fort, and a codefendant, Andrew Stewart, were charged in the same information and tried together before separate juries for the first degree murder of Ronnie Simon and the first degree provocative act murder of Earlwin Donte Johnson. (Pen. Code, § 187, subd. (a); counts 1 & 2.) Defendant and Stewart were also charged with the first degree burglary of Simon’s house. (§ 459, subd. (a), count 3.) It was further alleged that defendant personally used a firearm in each count (§§ 12022.53, subd. (b) (counts 1 & 2), 12022.5, subd. (a) (count 3)), and that Stewart personally and intentionally discharged a firearm causing great bodily injury or death to Simon (§ 12022.53, subd. (d); count 1), and personally used a firearm (§ 12022.5, subd.(a); count 3).

In an amended information filed by the Los Angeles County District Attorney’s Office, defendant and appellant Orlando Wagner was charged with murder (Pen. Code, § 187, subd. (a), count 1), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 2), false imprisonment by violence (§ 236, count 3), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 4). As to count 2, it was further alleged that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Defendant pleaded not guilty and denied the allegations.

After Neptali Varela violated the conditions of his probation in two cases, the court revoked and terminated his probation and committed him to state prison. Varela appeals, contending the court should have reinstated his probation so he could enter a residential drug treatment program. We will affirm the order.

Kha Sok pleaded guilty to four counts of robbery in violation of Penal Code section 211 (counts 1, 3, 5, 7), one count of attempted robbery in violation of sections 664 and 211 (count 2), and two counts of kidnapping in violation of section 209, subdivision (b)(1) (count 6). In addition, Sok admitted using a handgun within the meaning of sections 12022.53, subdivision (b), and 12022.5, subdivision (a), during the commission of counts 2 through 5. The superior court sentenced him to 28 years plus two consecutive life sentences, each with the possibility of parol after a minimum of seven years, with credit for time served.

Kurtis D. Smith was charged with attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 189, 664) and shooting at an occupied vehicle (§ 246). The prosecution alleged, among other things, that Smith had caused great bodily injury to another person in the commission of these offenses. (§§ 12022.53, subd. (d), 12002.7, subd. (a).) It also alleged Smith had suffered a serious felony prior (§ 667, subd. (a)(1)) and a strike prior (§ 667, subd. (b)-(i)).
Smith was tried before a jury on these charges. Following deliberations, the jury was unable to reach a verdict. The trial court declared a mistrial.

Luis Ramos appeals the judgment entered following a jury trial in which he was convicted of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(a); count 1), and forcible rape (§ 261, subd. (a)(2); count 3). The jury found appellant not guilty of the charge of sexual penetration by a foreign object (§289, subd. (a)(1)(a); count 2). The trial court sentenced appellant to 12 years in state prison and, as to count 1, imposed a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court construction fee (Gov. Code, § 70373, subd. (a)).
Appellant contends: (1) the trial court abused its discretion in excluding the victim’s statement that she intended to have sex with someone at the party on the night in question; (2) the prosecutor committed misconduct in argument by mischaracterizing the evidence; and (3) the prosecutor committed misconduct by asking the jury to consider the lack of evidence of consent, by misstating the law on the burden of proof, and by making state

On a single day in September 2014, defendant and appellant Danny Ramirez participated with his cohort Carlos Chavira in armed robberies of two Metro PCS cellular stores. Defendant was found guilty of four counts of second degree robbery (Pen. Code, § 211) for his involvement in the two separate robberies. In addition, for each of the four counts, the jury found true the special allegation that a principal was armed with a firearm during the commission of the crime (§ 12022, subd. (a)(1)). Defendant was sentenced to a total term of nine years four months in state prison.
Defendant makes one claim on appeal, that the trial court’s denial of his motion to exclude evidence of the pretrial identifications and subsequent in-court identifications for one of the robberies violated his state and federal Constitutional rights to due process and a fair trial, requiring reversal of two of his robbery convictions.

Appointed counsel for defendant Telesforo Junior Quintanilla asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

Defendant Thomas Edward Payne and his wife had a tumultuous marriage. During one particularly violent incident, defendant first beat her in the face and head, then slit her throat from ear to ear, and then told her (in the presence of others) that he hoped she died. A jury found him guilty of two counts of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)--counts 2 and 3), and found true special allegations that he inflicted great bodily injury under circumstances of domestic violence and personally used a knife during the attack (§§ 12022.7, subd. (e), 12022, subd. (b)(1)). The trial court sentenced him to 11 years in prison.

Appellant/defendant Artemio Misael Octavio Ramirez was charged with committing four felony sexual offenses against M., a nine-year-old girl who lived in the house where he was renting a room from her family: count I, intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)); count II, oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)); count III, assault with intent to commit rape (§ 261, subd. (a)(2)); and count IV, commission of a lewd act on a child (§ 288, subd. (a)). Counts I and II carried indeterminate terms.

Following a jury trial, defendant and appellant Ramsey Louis Najor was convicted of assault (Pen. Code, § 240), resisting an officer (Pen. Code, § 69), and evading an officer (Veh. Code, § 2800.1). On September 4, 2015, the trial court sentenced him to three years supervised probation with the term that he serve 120 days in county jail. On appeal, defendant contends the trial court erred (1) in denying his Penal Code section 1538.5 motion to suppress, (2) in refusing defendant’s special instruction that the arrest warrant was constitutionally void as a matter of law, and (3) in denying his motion for new trial. Rejecting his contentions, we affirm.

A jury convicted defendant Darryl Murray of willful cruelty to an elderly person causing great bodily injury and assault by means likely to produce great bodily injury based on an incident during which Murray struck an elderly victim on the head, with no warning, causing her to fall and hit her head on a nearby wall. On appeal, Murray contends that the trial court's admission of a suggestive single-person photographic identification of him by a witness was error and violated his due process rights. He argues that because subsequent identifications of him were tainted by this initial suggestive identification, the trial court should have excluded all of the witness's identifications of him. Murray further argues that his trial counsel rendered ineffective assistance in failing to object to the suggestive identification and to all subsequent tainted identifications, and/or in failing to call an expert witness to testify regarding the fallibility of eyewitness identifications a

Roman Maldonado appeals from the judgment after his jury conviction of first degree murder for the stabbing death of his mother, Maria Perez. Appellant argues his statement to police should have been suppressed because he did not knowingly and intelligently waive his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also asserts several instructional errors: (1) that CALCRIM No. 3428, as modified, prevented the jury’s consideration of his mental impairment in relation to first degree murder; (2) that CALCRIM No. 570 did not instruct on subjective provocation as relevant to reduce first to second degree murder; and (3) that the court erred in refusing to modify CALCRIM No. 372 to allow consideration of absence of flight as a factor in determining appellant’s guilt. As to the first two instructional errors, appellant, in the alternative, raises claims of ineffective assistance of counsel. Finding that none of these arguments requires reversal, we affirm.

A jury convicted Abraham Lopez of first degree murder, multiple counts of aggravated assault, one count of false imprisonment and two counts of possession of a weapon on a secondary school campus. On appeal Lopez contends the court made several evidentiary and instructional errors, including admitting into evidence the murder victim’s extrajudicial statements, excluding a defense expert’s proffered testimony on adolescent brain development, providing inapplicable jury instructions and failing to instruct the jury on simple assault, a lesser-included offense of assault with a deadly weapon on a peace officer. Lopez also contends the People presented insufficient evidence in their case-in-chief that the airsoft gun he brought to his high school was capable of expelling a metallic projectile and the court erred in denying his motion for acquittal on that count. We reverse Lopez’s conviction for bringing and/or possessing the airsoft gun on a school campus and affirm the judgment