CA Unpub Decisions

A jury convicted Jose Marquez of felony petty theft with three prior theft-related convictions, and second degree commercial burglary. (See Pen. Code, §§ 666, subd. (a); 459.)[1] Marquez admitted multiple prior convictions. The trial court struck the prior convictions in the interest of justice and sentenced Marquez to a term of 16 months in county jail, with credit for 345 including 173 actual days in custody, and 172 days of conduct credit. We affirm.

Joseph Canody appeals from the order committing him for treatment as a mentally disordered offender (MDO) (Pen. Code, § 2962).[1] He challenges the sufficiency of the evidence supporting the finding that the criminal offense upon which his commitment is based, arson of property (§ 451, subd. (d)), is a qualifying offense under subdivision (e)(2)(L) of section 2962. We affirm.

After judgment was entered in favor of respondent Michael M. Mann on his claims for legal malpractice against appellant Randolph J. Brandelli, the trial court denied Brandelli’s motion for judgment notwithstanding the verdict, and granted in part and denied in part his motion for a new trial. In Brandelli’s prior appeal, this court affirmed the rulings on his post-judgment motions, including the grant of a new trial limited to Mann’s damages (Mann v. Brandelli (June 17, 2011, B224817) [nonpub. opn.]). Following a bench trial, the trial court awarded Mann $155,178.16 in damages. Brandelli challenges the adequacy of Mann’s showing regarding his damages at the bench trial. We reject his contentions and affirm.

Julius Dewayne Williams appeals from a judgment after a guilty plea to one count of second degree commercial burglary. He admitted he had three prior convictions and served a prison sentence for each. (Pen. Code, § 667.5, subd. (b.)[1] The trial court struck two prior prison allegations, and sentenced him to a three-year term, to be served in a local facility pursuant to section 1170, subdivision (h)(5).
Williams contends, and the Attorney General concedes, that he is entitled to day-for-day presentence conduct credit under the version of section 2933, subdivision (e) that was in effect on the date he committed the crime. We modify the judgment to award Williams the correct amount of presentence credit.

Plaintiff Adam Kartiganer appeals the dismissal without prejudice of his action for failure to timely serve the summons and complaint. Because plaintiff did not timely file a notice of appeal, we dismiss the appeal.

Ramon Garcia was convicted by a jury on two counts of attempted willful, deliberate and premeditated murder with true findings on the special allegations the crimes had been committed for the benefit of a criminal street gang and a principal had used and discharged a firearm in committing the offenses proximately causing great bodily injury. On appeal Garcia argues only that, in sentencing him to an indeterminate aggregate state prison term of 35 years to life, the trial court violated Penal Code section 12022.53, subdivision (e)(2),[1] by imposing both the 25-year-to-life firearm-use enhancement and a 10-year criminal street gang enhancement because there was no finding he had personally discharged a firearm in the commission of the offenses. The Attorney General concedes the trial court erred, and we agree.

After a lengthy trial, the victorious party sought prejudgment interest under Civil Code section 3287.[1] Its opponent argued the interest issue must be arbitrated rather than decided by the temporary judge who presided over the trial. We find no arbitration provision in the agreement, which was the subject of the trial before the temporary judge and the basis of the temporary judge’s jurisdiction. We therefore affirm the denial of appellants’ petition to compel arbitration.

Appellant Jerome G. appeals from an order sustaining a petition under Welfare and Institutions Code section 602[1] and placing him home on probation. He contends the victim’s identification of him was the result of an unconstitutionally suggestive procedure, and should not have been admitted at trial. In the absence of other evidence connecting him to the crime, he claims the error was prejudicial and the order should be reversed. We find no error and affirm the court’s order.

Miguel Carnero was granted probation after a jury convicted him of violating a protective order (Pen. Code, § 166, subd. (a)(4))[1] and vandalism (§ 594, subd. (a)). Carnero appeals, contending that two probation conditions lack a scienter requirement and are vague and overbroad. The trial court ordered appellant (1) not to own, use, or possess dangerous or deadly weapons including firearms or other concealable weapons, and (2) not follow, harass, molest any victim or witness in the case. We affirm. (People v. Moore (2012) 211 Cal.App.4th 1179, 1186-1188.)

Jean C. Arguello appeals from his conviction of first degree robbery, which was found to have been committed for the benefit of a criminal street gang under Penal Code section 186.22 (statutory references are to the Penal Code unless otherwise indicated). All of his arguments on appeal concern the admission of gang evidence. He contends the trial court abused its discretion in denying his motion to bifurcate the trial on the enhancement and his motion for new trial based on the gang evidence. He also argues his attorney was ineffective because he did not object to testimony by the prosecution’s gang expert that appellant’s gang had murdered police officers.
We find no basis for reversal and affirm.

Jean C. Arguello appeals from his conviction of first degree robbery, which was found to have been committed for the benefit of a criminal street gang under Penal Code section 186.22 (statutory references are to the Penal Code unless otherwise indicated). All of his arguments on appeal concern the admission of gang evidence. He contends the trial court abused its discretion in denying his motion to bifurcate the trial on the enhancement and his motion for new trial based on the gang evidence. He also argues his attorney was ineffective because he did not object to testimony by the prosecution’s gang expert that appellant’s gang had murdered police officers.
We find no basis for reversal and affirm.

Appellant Jerome Canady appeals from the court’s sentencing determinations. He contends the court erred in imposing multiple statutory enhancement provisions for the same two prior offenses. In the alternative, he argues the court abused its discretion in deciding to impose two one-year enhancements for his prior prison terms pursuant to Penal Code section 667.5, subdivision (b),[1] in addition to three five-year enhancements under section 667, subdivision (a)(1), which were ordered by this court in a prior unpublished opinion. Appellant contends the court also erred in failing to recalculate his credits and to take into consideration the time he served prior to resentencing. Respondent agrees that the enhancements were imposed improperly and that the court should have recalculated his credits, including the actual days in custody up to the time of resentencing.
We shall direct the trial court to strike the two one-year enhancements that were imposed under section 667.5, subdivision (b), and remand the case to that court for recalculation of presentence credits.

Angel Pena Ayala appeals from the judgment following his conviction for kidnapping for carjacking (Pen. Code, § 209.5, subd. (a)),[1] kidnapping to commit another crime (§ 209, subd. (b)(1)), five counts of robbery (§ 211), two counts of carjacking (§ 215, subd. (a)), burglary (§ 459), escape by force (§ 4532, subd. (b)(2)), and dissuading a witness (§ 136.1, subd. (b)(1)). He was sentenced to prison for 137 years eight months to life. Ayala contends the trial court erred by failing to order a second mental competency hearing based on a substantial change in circumstances. We affirm.

Mohamed Mesdaghi appeals from the judgment entered after a jury convicted him of leaving the scene of an accident resulting in injury and insurance fraud. Mesdaghi contends he received ineffective assistance of counsel at trial and was improperly excluded from critical proceedings in violation of his federal constitutional rights. He also contends the trial court abused its discretion in denying his motion for a mistrial and improperly sentenced him. We affirm.