CA Unpub Decisions

A jury found Kristopher Kenneth Brewer guilty of felony possession of marijuana while in prison. The trial court found one prior strike allegation to be true and dismissed the other, resulting in a four-year sentence.
On appeal, defendant contends the trial court abused its discretion when it refused to dismiss his second prior strike allegation. Defendant claims the trial court failed to fully consider the minor nature of the offense, his emotional and mental problems, and his “mixed bag” of conduct in prison.
We find no error in the court’s denial of defendant’s request. Accordingly, we affirm.

In the early morning of January 23, 2010, in Del Paso Heights, 18-year-old defendant Ricardo Lynn Hall shot victim Mathew Maurizzio twice from three to four feet away, including fatally in the heart. The circumstances of the shooting were these: Maurizzio had about $1,000 on him and wanted to buy drugs. When defendant learned about the money, he and two friends talked about robbing the victim. Defendant, with a gun in hand, demanded money from the victim. The victim pushed past defendant. Defendant said the victim had disrespected him, and defendant’s friend yelled at defendant, “ ‘don’t do that.’ ” Defendant shot the victim anyway.
About eight months before defendant shot the victim, defendant told a friend, “he wanted to know what it felt like to kill somebody,” just after he had unsuccessfully tried to choke a cat.
At trial in this case, defendant testified on his own behalf that there had been some discussion about a drug swap between one of his friends and the victim. The victim walked past defendant but then stopped. Defendant had a gun in his pocket “in case something happened.” Defendant’s friend told defendant to give him the gun, and as defendant pulled it out, he noticed the victim staring at him. The victim started coming at defendant. Defendant earlier had been told that the victim had a knife, so defendant thought the victim was going to stab him. Defendant had been stabbed in the past.

A jury convicted defendant James Dominique Carlton of numerous sexual offenses against three victims, sustaining an allegation that the existence of multiple victims qualified him for the alternative sentencing scheme under Penal Code section 667.61.[1] Accordingly, the trial court sentenced defendant to seven consecutive indeterminate terms of 15 years to life in state prison with a consecutive indeterminate term of 25 years to life for a count involving a forcible offense, all of which was consecutive to a five-year determinate term for an attempted offense. The court also imposed a concurrent one-year jail term for the misdemeanor conviction in count 10.

After the trial court denied defendant William Maxwell’s motion to suppress (Pen. Code, § 1538.5), a jury convicted defendant of possession of cocaine base (Health & Saf. Code, § 11350) and possession of marijuana for sale (Health & Saf. Code, § 11359). On appeal, he contends the trial court erred in denying his motion to suppress, as the search was conducted without a warrant and he was no longer on parole at the time of the search. We requested supplemental briefing on the correct calculation of defendant’s parole discharge date. Defendant subsequently requested we permit him to file an additional supplemental briefing. We granted his request.
We agree defendant was no longer on parole at the time of the search; however, as there was no evidence of reckless disregard of defendant’s constitutional rights or systemic error, we find the good faith exception to the exclusionary rule applies. Accordingly, we affirm the judgment.

On May 1, 2013, defendant and appellant, Jerry Donnell Carrell, filed in the Los Angeles Superior Court a petition for writ of habeas corpus in which he argued the trial court had erred by denying the petition with prejudice based on the fact Carrell did not qualify for recall of his sentence and resentencing pursuant to Penal Code[1] section 1170.126. We affirm the trial court’s order.[2]

Appellant Albert Juan Ortega appeals from an order denying his claim to $3,350 seized by the police in connection with a crime he committed. He contends the trial court erred by ruling his claim, made in response to the prosecutor’s notice of administrative forfeiture, was untimely. He additionally argues the prosecution failed to make a prima facie showing that there was probable cause to believe the seized property was properly subject to forfeiture. We affirm the order denying the claim.

Armando T. (father) appeals the juvenile court’s order removing his daughter, Isabella, from his custody. Father was incarcerated at the time of Isabella’s birth in September 2010, has never had physical custody of her, and was not expected to be released from prison until 2023. Nonetheless, he maintains the juvenile court erred by not placing Isabella in his custody so that he could make an appropriate plan for her. Father also challenges the juvenile court’s failure to make a visitation order. We hold the juvenile court’s findings and order were supported by substantial evidence, and affirm the orders.

Thomas V. (Father) appeals from a Welfare and Institutions Code[1] section 366.26 order terminating his parental rights to his daughter, Sofia C. (the child). Father claims the trial court abused its discretion in denying his section 388 petition and committed reversible error in failing to apply the section 366, subdivision (c)(1)(B)(i) exception to termination of parental rights. The Los Angeles County Department of Children and Family Services (Department) has not filed an opening brief as it was aligned with Father in the juvenile court. E.C. (Mother) has filed an opening brief in support of the juvenile court’s order denying the section 388 petition and terminating parental rights. We affirm the order terminating parental rights in its entirety.

A jury found defendant and appellant Rodney Louis Gaines guilty of second degree burglary and simple assault. He appeals, contending there is insufficient evidence supporting his conviction for burglary, specifically no evidence showing an intent to commit a felony upon entering the business establishment where the incident occurred. We conclude there is substantial evidence in the record supporting the judgment of conviction and therefore affirm.

Appellant Anthony M. (Father) appeals from the juvenile court’s jurisdiction order sustaining a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b)[1] and a disposition order declaring the child Javon N. a dependent of the court and placing him with a relative. The Los Angeles County Department of Children and Family Services (Department) appeals from the jurisdiction order. We affirm. Substantial evidence supported both the juvenile court’s jurisdictional findings and disposition order, as well as its modifications to the dependency petition to conform to proof.

Defendant Raymundo Mendez was convicted of assault with personal use of a firearm. The chief defense was mistaken identity. Three eyewitnesses identified defendant as the assailant. One eyewitness said defendant was wearing a blue shirt with no vest or jacket at the time of the assault. When defendant was stopped by police a few minutes later, he was wearing a jacket. Another eyewitness said defendant was wearing a blue shirt and a vest, and an investigating officer noted in her report defendant was wearing a vest. The only claimed error on appeal is the court erred in allowing the arresting officer, who was called as a defense witness, to testify on cross-examination that it is common for people who commit gun crimes to change clothes after the crime and discard the gun. Defendant argues this evidence was irrelevant and inherently prejudicial “profile” evidence.
Defendant waived this claim by failing to object at trial on the ground the evidence was irrelevant or prejudicial. In any event, we find no merit to the claimed error. Courts have condemned the prosecution’s use of expert testimony to describe the method and means of a particular type of criminal to commit a particular type of crime as evidence that, since the charged crime shares the same or similar characteristics, the defendant must also be guilty of committing the same crime. The brief cross-examination of the arresting officer in this case does not come close to falling within this prohibited category of profile evidence.

A jury convicted defendant and appellant Manuel Willis of three counts of second degree robbery (Pen. Code, § 211) [1] but found not true allegations he was armed with and personally used a handgun (§§ 12022, subd. (a)(1), 12022.5, subd. (a)).[2] In a separate proceeding, the trial court found defendant had suffered a prior conviction under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious or violent conviction (§ 667, subd. (a)), and served prior prison terms (§ 667.5, subds. (a)-(b)). Defendant was sentenced to a total term of 15 years in state prison, consisting of the upper term in count 1 of five years, doubled pursuant to the three strikes law, plus a five-year enhancement under section 667, subdivision (a). Sentencing on the prior prison term findings was stayed.
In his timely appeal, defendant contends: (1) he was denied his state and federal constitutional rights to a representative and impartial jury because the trial court erroneously denied his motions under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) to prevent the prosecution from striking five Black jurors; and (2) the trial court erroneously denied his request to strike a prior serious and violent felony conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm the judgment but remand with directions to correct errors in the abstract of judgment.

Plaintiffs Rosa Hernandez, Alejandro Hernandez,[1] Richard Gutierrez, Frank Salazar, Paul and Elizabeth Royalty, and Alvin and Carol Tallman filed this action against Michael Vasquez and Shining Star Resorts, Inc. (Shining Star), for alleged violations of the Corporate Securities Law of 1968. (Corp. Code, § 25000 et seq.)[2] The trial court sustained a demurrer without leave to amend to two of causes of action on statute of limitations grounds. The court sustained the demurrer with leave to amend to a third cause of action. After plaintiffs filed a first amended complaint (FAC), the court sustained a demurrer without leave to amend to the remaining cause of action. The court based its order again on the statute of limitations.
Plaintiffs appeal from the judgment of dismissal entered after the demurrers. We conclude the causes of action for (1) sale of unqualified securities and (2) unlicensed sale of securities were, indeed, untimely. On the other hand, the demurrer to the cause of action for fraudulent sale of securities was improperly sustained, except as to Gutierrez. We therefore affirm in part and reverse in part.

An employee is a member of a union whose collective bargaining agreement provides that the union may submit a grievance to arbitration. Here we conclude that this provision does not preclude the employee with a statutory grievance against his employer from filing a judicial action.
The County of Ventura (County) appeals from an order denying its petition to compel arbitration of Joseph R. Cipollini's claims for retaliation, harassment and discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) We conclude that Cipollini is not bound to arbitrate his claims under the terms of a memorandum of agreement (MOA) between the County and his bargaining representative, the Ventura County Deputy Sheriffs' Association (Association), because the MOA does not provide for a clear and unmistakable waiver of Cipollini's right to a judicial forum for his statutory discrimination claims. We affirm.