CA Unpub Decisions

At trial, the jury found John Illingworth guilty as charged on one count of inflicting corporal injury on his child’s parent, and the trial court found true a prior conviction allegation. Illingworth was then sentenced to state prison for a term of four years. He appeals, claiming the trial court committed misconduct in questioning witnesses and abused its discretion in admitting evidence of 9-1-1 calls. We affirm.

David Wilkes (appellant) was convicted by a jury of carjacking (Pen. Code, § 215, subd. (a), count 1);[1] assault with a semiautomatic firearm (§ 245, subd. (b), count 2); possession of a firearm by a felon (former § 12021, subd. (a)(1), count 3); grand theft of an automobile with a prior conviction (§ 666.5, count 4); unlawful driving or taking of a vehicle with a prior conviction (§ 666.5, count 5); and possession of ammunition by a felon (former § 12316, subd. (b)(1), count 6).[2] He was sentenced to 46 years, 4 months in prison.
On appeal, appellant raises nine issues: (1) the evidence was insufficient to prove carjacking; (2) the evidence was insufficient to prove that he used an automatic handgun; (3) the trial court prejudicially erred in not instructing the jury on assault with a firearm as a lesser included offense of assault with a semiautomatic firearm; (4) his conviction for unlawfully driving or taking a vehicle must be reversed because it is a lesser included offense of grand theft of an automobile; (5) the consecutive sentence for grand theft of an automobile must be stayed pursuant to section 654; (6) the concurrent sentence for assault with a firearm and the firearm enhancement must be stayed pursuant to section 654; (7) the abstract of judgment and clerk’s minutes must be amended to reflect the trial court’s stay of the sentence for possession of ammunition by a felon pursuant to section 654; (8) the trial court abused its discretion in finding no mitigating factors in imposing the sentence; and (9) the abstract of judgment and clerk’s minutes must be amended to reflect restitution and suspended parole revocation fines in the amount of $200 as orally pronounced by the trial court.
For the reasons set forth below, we affirm the judgment in part, reverse the judgment in part, and remand for resentencing.

Renee M. Bazar (formerly Shorr) appeals from an order modifying the spousal support established in a marital settlement agreement following dissolution of her marriage to Alan Shorr. We reverse.

In 1991, gang member Rodolfo Gallegos (then 16) shot at five people, killing one of them. After admitting the shooting to others, he fled to Mexico but was apprehended and tried nearly 20 years later.
A jury convicted Gallegos of one count of first degree murder and four counts of attempted premeditated murder and found true related gang and firearm allegations. The trial court sentenced Gallegos to state prison for a term of 85 years to life on the murder and four attempted murder counts plus another 5 years for the firearm enhancement.
Gallegos appeals, claiming insufficiency of the evidence as well as various evidentiary errors and sentencing error. We affirm the convictions but remand for resentencing.

Petitioner William French Anderson was the appellant in People v. Anderson (2012) 208 Cal.App.4th 851, which affirmed the judgment entered following his conviction by jury of continuous sexual abuse of a child under the age of 14 years and three counts of lewd act with a child under the age of 14 years. (Pen. Code, §§ 288.5, 288, subd. (a).) In addition to the appeal from the judgment, Anderson filed this writ petition to raise ineffective assistance of counsel issues. After ordering the petition and the appeal to be considered concurrently, we severed the matters to prevent further delay of the appeal. We now consider Anderson’s claim counsel rendered ineffective assistance in failing to challenge the admissibility of a secretly recorded conversation in which the victim confronted Anderson and requested an apology for his years of abuse. We issued an order to show cause. Upon review of the evidence in the record and before us by declaration, we conclude an evidentiary hearing is unnecessary, deny the petition and discharge the order to show cause.

The issue presented by this appeal is whether San Francisco’s payroll expense tax, which is assessed on all compensation paid by a business to individuals performing services for the business within the city, applies to wages and nonemployee compensation paid to the sole shareholder and principal employee of a professional corporation. The trial court ruled that the payroll expense tax applies by its terms to these types of compensation, and rejected appellant’s arguments that the city is estopped or constitutionally barred from applying that interpretation. We affirm.

T.Y. (Father), father of 14-year-old T.B. and 5-year-old M.Y., appeals from the juvenile court’s order on reconsideration denying reunification services to him. He contends the court: (1) lacked the power to reconsider its dispositional order granting services to him; (2) erred by considering, upon reconsideration, an additional allegation that had not been previously pled; (3) erred in failing to determine whether it was in M.Y.’s best interest to award reunification services to Father; and (4) violated his equal protection rights by granting services to the children’s mother (Mother), b

Appellant Harvey G. Ottovich appeals from a trial court order awarding respondent the County of Alameda (County), among other things, $59,052.90 in attorney fees and $100,200 in demolition costs that were incurred after the County won an action against appellant for nuisance, trespass and quiet title. For reasons set forth below, we reverse the award of attorney fees and in all other regards affirm the trial court’s judgment.

Appellant, Antonio Plascencia Pelayo, challenges his conviction and sentence for possession of methamphetamine for sale, possession of ecstasy for sale, and evading a police officer. He challenges the validity of a search warrant for his residence, which was based primarily on information received from confidential informants and contained in a partially sealed affidavit. Pelayo also argues that Penal Code section 654 bars his punishment for possession of both methamphetamine and ecstasy for sale. Finally, he argues that he is entitled to the benefit of 2009 amendments to Penal Code section 4019 which went into effect on January 25, 2010 pursuant to Senate Bill No. 18 (2009–2010 3d Ex. Sess.) and increased the good conduct credits available to a defendant for presentence custody in a local detention facility. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) We find no error and affirm.[1]

The jury found appellant Victorino Gonzalez guilty of one count of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subdivision (a))[1] and of three counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)). Gonzalez was sentenced to a term of 25 years to life on the intercourse count (count one), a consecutive term of 15 years to life for one of the penetration counts (count two), and two concurrent terms of 15 years to life for the other two penetration counts (counts three and four).
Gonzalez was the victim’s stepfather, living in her mother’s house and began molesting her just before she turned nine years old. The molestations continued until, in the victim’s words, she was “like ten.” There is no question there was substantial evidence of actual sexual penetration at least once, since the victim testified Gonzalez’s penis went “inside” of her vagina.[2]

A jury found defendant Donald Mitchell Wesp guilty of possession of methamphetamine. In sentencing defendant, the court exercised its discretion pursuant to Penal Code section 1385 and struck two of defendant’s prior felony convictions. The total sentence imposed by the court is five years in state prison.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel did state there was a potential issue regarding whether the police officer’s testimony and the evidence he seized should have been suppressed.
Defendant was given 30 days to file written argument in defendant’s own behalf. We received a handwritten document from defendant in which he lists various legal issues such as “filing false police reports,” “fabricating evidence” or “false arrest.” Taken as a whole, the document appears to accuse defendant’s trial lawyer of incompetence since there are various notations about “frivolous motions to suppress,” “fabricating evidence with prosecutor,” “she would not do as told she would not mention anything about evidence that would defend me nothing” and “using a pack of sugar to mislead the jury an stating I had a prior. Misleading the jury.”

In January 2010, for the purpose of cutting costs, the Orange County Sheriff’s Department (the Department) employed a new classification of civilian employee (the CSA classification[1]) to do office work in the Orange County (the County) jail system. Before this new classification, such work had been exclusively performed by deputy sheriffs. The Association of Orange County Deputy Sheriffs (the Association) sued the County, the Department, and the County Sheriff Sandra Hutchens (collectively, defendants). The Association alleged defendants transferred duties performed by deputy sheriffs to CSA’s (who were assigned to the bargaining unit of another union, the Orange County Employees Association (OCEA)), without having first complied with the meet‑and‑confer obligations required by the Association’s applicable memorandum of understanding with the County and the Meyers‑Milias‑Brown Act (MMBA) (Gov. Code, § 3500 et seq.). (All further statutory references are to the Government Code unless otherwise specified.) OCEA filed a complaint in intervention, seeking, inter alia, a judicial declaration that the CSA classification was lawfully created and properly assigned to OCEA as its bargaining unit.

A jury convicted defendant Adrian Maldonado of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and possession of a deadly weapon, to wit, brass knuckles (Pen. Code, § 12020, subd. (a)(1)). The jury also found true a great bodily injury allegation (Pen. Code, § 12022.7, subd. (a)) accompanying count 1. The trial court sentenced defendant to 14 years in state prison, a sentence based in part on defendant’s criminal history. On appeal, defendant contends the court prejudicially erred by admitting evidence under Evidence Code section 1103 (section 1103) of defendant’s past violent conduct. Defendant also asserts the court abused its discretion by declining to dismiss a prior strike for purposes of sentencing. We reject both claims and affirm the judgment.

A jury convicted Jonathan Gonzalez of one count of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); all further statutory references are to this code; count 5), and four counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 6, 7, 8, 9). The jury also found Gonzalez inflicted great bodily injury in the commission of count 6 (§ 12022.7 subd. (a)), personally used a firearm in the commission of counts 6, 7, 8, and 9 (§ 12022.5, subd. (a)), and committed all of these offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury found Gonzalez not guilty of four counts of willful, deliberate and premeditated attempted murder (§§ 664, subd. (a), 187 subd. (a); counts 1, 2, 3, 4).
The court sentenced Gonzalez to a total prison term of 22 years consisting of the upper term of nine years on count 6, plus a consecutive 10 years for the section 186.22, subdivision (b)(1) gang enhancement and a consecutive three years for the section 12022.7, subdivision (a) great bodily injury enhancement. The court also imposed concurrent terms on counts 7, 8, and 9, imposed a three-year term for count 5 and stayed it pursuant to section 654, and struck the firearm use enhancements as to counts 6, 7, 8, and 9 for sentencing purposes pursuant to section 1170.1, subdivision (f).
Gonzalez challenges the sufficiency of the evidence to support the active participation conviction in count 5, and the gang enhancement findings as to counts 6, 7, 8, and 9. We reverse as to count 5 only and affirm the judgment in all other respects.