CA Unpub Decisions

A jury convicted appellant Alan Thrower of second degree robbery with personal use of a firearm. (Pen. Code, §§ 211; 212.5, subd. (c); 12022.53, subd. (b).)[1] He was sentenced to a total prison term of 12 years, including a mandatory 10-year enhancement for firearm use under section 12022.53. Thrower now challenges the sufficiency of evidence in support of the jury’s finding that he used an actual “firearm” within the meaning of sections 12001 and 12022.53. He also alleges that prosecutorial misconduct occurred during closing argument at trial. We affirm the judgment.

Defendant and appellant R.R. (minor) admitted to two counts of taking or driving a golf cart in violation of Penal Code section 487, subdivision (d); in return, the remaining allegations were dismissed. Minor was declared a ward of the court pursuant to Welfare and Institutions Code section 602, and placed in the custody of his mother on various terms and conditions of probation.
Subsequently, minor continually violated the terms of his probation, and admitted to committing grand theft person. (Pen. Code, § 487, subd. (c).) Minor was removed from the custody of his parents, and eventually placed in a group home in Michigan. Minor appeals from the judgment. We find no error and affirm.

After a jury trial, defendant was found guilty of a lewd and lascivious act on a child aged 14 or 15. (Pen. Code, § 288, subd. (c)(1).) In addition, although he was found not guilty of felony sexual battery with restraint (Pen. Code, § 243.4, subd. (a)), he was found guilty of the lesser included offense of misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). He admitted one “strike” prior. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
Defendant was sentenced to a total of six years in prison, along with the usual fines and fees.
Defendant now contends that the trial court erred by admitting a police officer’s testimony that it is common for there to be discrepancies in the stories given by child sexual abuse victims, because they are traumatized. We will reject this contention and affirm the conviction.
Defendant also contends that the trial court erred by limiting his presentence conduct credit to 20 percent. According to defendant, he is entitled to credit on a “two-for-two” basis under a version of Penal Code section 4019 that was enacted after the crimes were committed.
The People concede that the trial court erred by limiting defendant’s credit to 20 percent. According to the People, however, defendant is entitled to credit only on a “two-for-four” basis, because the “two-for-two” version of Penal Code section 4019 does not apply to crimes committed before its enactment.
We will hold that the “two-for-two” version of Penal Code section 4019 does not apply. Accordingly, defendant is entitled to some additional credit, but not as much as he is seeking.

On June 10, 2010, plaintiff, Lynn Scott Jones, filed a medical malpractice complaint against defendants, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and Dr. Robert Yu, a Kaiser doctor (collectively, Kaiser).
On May 4, 2011, Kaiser filed a motion for summary judgment. The hearing on the motion was set for August 25, 2011.
On August 11, 2011, Jones filed a memorandum of points and authorities and a statement of undisputed material facts in opposition to the motion for summary judgment. The memorandum also requested a continuance “because essential evidence currently exists but cannot be presented at this time.” (Capitalization omitted.)
On August 22, 2011, Jones filed an ex parte motion to continue the August 25, 2011 hearing. Kaiser objected, but the motion was granted, and the hearing was continued until October 24, 2011.
On October 24, 2011, Jones requested a further continuance to obtain an expert medical opinion. The court denied the request and granted Kaiser’s summary judgment motion.
On November 3, 2011, Jones filed a motion for reconsideration. The motion was heard on January 18, 2012, and the motion for reconsideration was denied. Jones appeals from the ensuing judgment.
ISSUES
On appeal, Jones presents two issues. First, he argues the trial court abused its discretion by denying a second continuance at the October 24, 2011 hearing and then granting the summary judgment motion. Second, he contends the trial court abused its discretion when it denied his motion for reconsideration on January 18, 2012.

Defendant and appellant Davie Damien Acosta appeals from an order revoking his probation. He contends that the trial court had lost jurisdiction to revoke probation because the probationary period had expired. We affirm.

On March 26, 2010, the San Bernardino County District Attorney filed an information charging defendant and appellant James Jesse Sult with second degree robbery (Pen. Code, § 211, counts 1, 11-12, & 20), first degree residential robbery (Pen. Code, § 211, counts 2 & 3), possession of a firearm by a felon with a prior conviction (former Pen. Code, § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010, ch. 711, § 6)],[1] counts 4, 8, 14, & 21)[2], first degree burglary with a person present (Pen. Code, § 459, counts 5, 13, & 15), attempted carjacking (Pen. Code, §§ 664/215, subd. (a), count 6), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 7), attempted first degree residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh. Code, § 2800.2, subd. (a), count 17), assault upon a peace officer (§ 245, subd. (c), counts 18 & 19), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 22). As to counts 1-3, 6, 9-12, and 20, the information alleged that defendant personally used a firearm, within the meaning of Penal Code section 12022.53, subdivision (b). As to counts 5, 7, 13, 15, and 16, the information alleged that defendant personally used a firearm, within the meaning of Penal Code sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a). The information also alleged that defendant served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)[3]

A jury convicted defendant and appellant Christian Darrough of one count of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). Darrough brought two oral motions to remove his attorney, which the court ruled were in fact two Marsden[1] motions; one on December 18, 2012 and one on January 17, 2013. He argued ineffective assistance of counsel for refusing to file a Pitchess[2] motion and failure to object to the testimony of the arresting officer.

This dissolution action between Christa Plunkett and Chad Plunkett went to a court trial wherein Christa[1] asserted that Chad secretly withdrew over $231,000 in community funds just before their separation. Following the court trial, of relevance to this appeal, the court, in its statement of decision, (1) ordered Chad to pay $50,000 in attorney fees to Christa; (2) charged Chad with a preliminary distribution of community funds in the sum of $181,951 that he secretly removed from various accounts; (3) reserved jurisdiction over child and spousal support; and (4) ordered division of Christa's IRA account pursuant to In re Marriage of Brown (1976) 15 Cal.3d 838 (Brown). Thereafter, when the court entered judgment, it set child support at $0.

Defendants and appellants Satinder M. Uppal and Suresh K. Soni appeal from a judgment entered after a bifurcated jury and bench trial on fraud and related equitable claims of plaintiffs and respondents David Hackbart and Kihack Management LLC (collectively Hackbart) arising out of Hackbart's purchase of a gasoline station and related businesses from defendants. The trial court entered a judgment awarding Hackbart $1,400,000 in fraud damages and $700,000 in punitive damages against Uppal, and $232,000 against Soni in the amount it found Soni had been unjustly enriched. It awarded $1,400,000 in breach of contract and fraud damages against suspended corporation MTPA Ventures Limited, Inc. (MTPA), against which it had previously entered a default judgment. The court declined to hold any of the individual defendants liable for the acts of MTPA as alter egos.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly). Having reviewed the record as required by Wende, we note two errors in the abstract of judgment, which we will order corrected. The judgment is affirmed.
We provide the following brief description of the facts and procedural history of the case. (Kelly, supra, 40 Cal.4th at p. 124.)
Nineteen-year-old defendant Darrell Alvin DeWitt lived in an Elk Grove apartment with his father, Darrell Andre DeWitt (Darrell) and his 18-year-old brother Andre DeWitt (Andre). Darrell, who suffered from congestive heart failure, spent much of the time in his bedroom. Darrell and defendant constantly argued because Darrell wanted defendant to get a job and help around the apartment. Defendant once told his uncle he hated Darrell and wanted to kill him.

This petition challenges a decision of California’s Department of Corrections and Rehabilitation (CDCR) validating petitioner, prison inmate Anthony Bean, as an active member of the Black Guerrilla Family (BGF) prison gang. Prison regulations provide that a gang validation must be premised on three independent sources of information (“source items”) . (Cal. Code Regs., tit. 15, § 3378, subd. (c)(3).)[1] Although CDCR relied on four source items, two of the source items fail to meet the requirements of CDCR’s regulations. Specifically, one source item, a report from the “debriefing” of a prison gang member, fails to refer to “specific gang related acts or conduct” by petitioner, as required by section 3378, subdivision (c)(8)(M). Another source item, a book order form found in petitioner’s possession, is not supported by prison staff’s articulation of why, “based on either the explicit or coded content,” the written material is reliable evidence of association or membership with the gang, as required by section 3378, subdivision (c)(8)(C). Accordingly, we shall direct CDCR to vacate petitioner’s gang validation decision and to cease housing him based on that validation.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On May 25, 2011, the victim rented a motel room and shared it with Torijean Bess and Bess’s young son, who the victim had recently met. At the motel, the victim and Bess met another couple, Ashley Turner and Heath Chaffin, who, along with their child, occupied the room two doors down. After the victim and Bess drank with Turner and Chaffin most of the afternoon, the victim decided to pay for $100 worth of methamphetamine and Turner knew where to buy it. Turner and Bess left to buy the drugs. During the drive, Bess told Turner the victim just borrowed a lot of money ($2,000) from his grandfather and bought a prepaid credit card. Bess wanted some of the money. They stopped so Turner could visit with William Bishop in order to buy the drugs but Bishop did not have any.

A jury found defendant Anthony Wayne Goodson guilty of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count1), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), carrying a dirk or dagger concealed on the person (former Pen. Code, § 12020, subd. (a)(4), now § 21310; counts 3 & 4; unless otherwise stated, all statutory references that follow are to the Penal Code), and misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 5).
We note that counts 3 and 4 involved carrying a dirk or dagger concealed on the person. (Former § 12020, subd. (a)(4).) However, the information and verdict forms listed the count 3 offense as a violation of former section 12020, subdivision (a)(1), which does not apply to a dirk or dagger. Nevertheless, the jury was properly given a single instruction that applied to both counts and correctly set forth the elements of the dirk or dagger offense. To eliminate confusion, we shall modify the judgment on counts 3 and 4 to reflect convictions of section 21310, the successor to former § 12020, subdivision (a)(4).

In August 2006, defendant Arturo Cox Vega pleaded no contest to assault by means likely to produce great bodily injury ( "Pen. Code, § 245, subd. (a)" Pen. Code, § 245, subd. (a); unless otherwise stated, section references that follow are to the Penal Code) in case No. 06-0997, and attempted second degree robbery ( "§§ 664, 211, 212.5, subd. (c)" §§ 664, 211, 212.5, subd. (c)) in case No. 06-4317. Defendant was placed on three years’ formal probation in both cases.