CA Unpub Decisions

A jury convicted Abdikidir Abdillahi Guled[1] of attempted murder (Pen. Code,[2]
§§ 187, subd. (a), 664), discharging a firearm from a motor vehicle (former § 12034, subd. (c), now § 26100, subd. (c)), and assault with a firearm (§ 245, subd. (a)(2)). As to count 1, the jury found true allegations the offense was willful, deliberate and premeditated (§ 189). As to counts 1 and 2, the jury found true allegations Guled intentionally and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to count 3, the jury found true allegations Guled personally used a firearm (§ 12022.5, subd. (a)), and personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Guled additionally admitted being out on bail at the time of the offenses (§12022.1, subd. (b)).
The court sentenced Guled to life in prison with the possibility of parole for count 1, plus 25 years to life for the attendant firearm discharge enhancement finding, plus 2 years for the attendant on bail enhancement finding.[3] The court stayed the sentences for the remaining counts and enhancement findings under section 654.

A complaint filed February 24, 2012, charged defendant Thomas Prigmore with attempted burglary ("Pen. Code" Pen. Code,[1] §§ 459, 664" §§ 459, 664; count 1), evading an officer while driving opposite the flow of traffic ( "Veh. Code, § 2800.4" Veh. Code, § 2800.4; count 2), harming a peace officer’s dog ( "§ 600, subd. (a)" § 600, subd. (a); count 3), and resisting or obstructing an officer ("§ 148" § 148; count 4). In March 2012, the prosecutor amended count 2 to allege driving in a wanton manner while eluding a pursuing peace officer. ( Veh. Code, § 2800.2" Veh. Code, § 2800.2.) Defendant pleaded no contest to counts 1 and 2; counts 3 and 4 were dismissed in light of the plea. Imposition of sentence was suspended and defendant was placed on probation for five years on the condition, among others, that he serve 180 days’ incarceration with credit for six days.

A jury convicted defendant Martha Magallanes of taking and receiving a stolen vehicle. On appeal, she challenges the sufficiency of the evidence to support the verdicts on both counts. We affirm.

In this appeal from a judgment for breach of a contract to purchase gasoline, defendants assert plaintiff Ramos Oil Co., Inc. (Ramos) has unclean hands for selling them unbranded gasoline. Defendants fail to appreciate the significance of the trial court’s two factual findings: (1) that the testimony of Ramos’s witnesses was credible and (2) that defendants requested the unbranded gasoline. Defendants also fail to understand the limited scope of appellate review. On this record, there is substantial evidence to support the trial court’s findings, the theory of unclean hands is without support, and the trial court did not abuse its discretion by awarding substantial attorney fees. We affirm.

In the underlying civil commitment proceedings, the trial court allowed the prosecution to relitigate the finding that Warren David Rose, Jr., was not a sexually violent predator (SVP) at the time of his prior release and failed to instruct the jury it must find changed circumstances to establish that he currently suffers from a diagnosed mental disorder that makes him dangerous and likely to engage in sexually violent predatory criminal behavior upon release. (Welf. & Inst. Code, § 6602; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) The court disallowed evidence of a 1999 court finding that he was not an SVP and a 2001 jury finding that he was, based on an Evidence Code section 352 determination that the jury would be confused, misled, or distracted.
Fundamental principles of res judicata and collateral estoppel are not at the mercy of Evidence Code section 352. By excluding the evidence and failing to instruct the jury on the prosecution’s burden of proof, the court relegated the collateral estoppel principles embodied in Turner v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner) and People v. Munoz (2005) 129 Cal.App.4th 421 (Munoz) to the vagaries of a section 352 balancing act, an error that was not harmless beyond a reasonable doubt. We reject, however, defendant’s challenge to the constitutionality of the 2006 amendments to the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.)[1] We reverse the judgment of commitment and remand the matter to the trial court. Rose is entitled to a jury trial in accordance with the views expressed herein.

Thomas Allen Kirker appeals from the judgment entered after he pled no contest to assault (Pen. Code, § 245, subd. (a)(4))[1] and admitted a prior strike conviction (§§ 667, subds. (d)-(e); 1170.12, subds. (b)-(c)). Five weeks after the plea, appellant indicated that he wanted to withdraw his plea, but after new counsel was appointed, withdrew the plea withdrawal motion. The trial court suspended imposition of sentence and granted probation with 90 days jail. Appellant was ordered to pay a $240 restitution fine (§ 1202.4, subd. (b); a $240 probation revocation fine (§ 1202.44), and a $1,000 fine.

Defendant and appellant Aragon Molina (defendant) appeals his judgment of conviction of misdemeanor possession of marijuana. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On April 8, 2013, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed and defendant has submitted no letter or brief. We have reviewed the entire record and finding no error or other arguable issues, we affirm the judgment.
After Los Angeles Police Department officers conducted a search of the garage of defendant’s home and found jars of marijuana and marijuana plants defendant was charged with cultivating marijuana in violation of Health and Safety Code section 11358 (count 1) and possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 2).

Carlos Echeverria appeals from the judgment entered after he pleaded no contest to attempted robbery (Pen. Code, §§ 664 & 211) and admitted a Penal Code section 1170, subdivision (h)(3) allegation (providing that any sentence imposed for the charged crime shall be served in state prison). The trial court suspended the imposition of sentence, and placed appellant on formal probation for 36 months, with various terms and conditions.

Prudence S. (Mother) appeals from the denial of her petition brought pursuant to Welfare and Institutions Code section 388. Both Mother and the Department of Children and Family Services (DCFS) agree that the order currently in effect giving the legal guardian discretion to determine visitation is in error. We reverse the trial court’s order denying Mother’s petition and remand the matter to the dependency court to determine whether visitation is appropriate and, if so, to specify the frequency and duration of the visits.

Defendant and appellant Douglas Wade Pulliam was charged in counts 1 and 2 with possession of an assault weapon. (Pen. Code, § 12280, subd. (b).)[1] Defendant’s motion to traverse the search warrant that led to the discovery of the weapons was denied.[2] Defendant pled no contest to count 1, count 2 was dismissed, and defendant was placed on formal probation for a period of three years. We affirm.

Defendant and appellant, John Gilbert Benitez, appeals from the judgment entered following a jury trial which resulted in his conviction of simple battery (Pen. Code, § 242)[1] and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), during the commission of which he personally inflicted great bodily injury upon the victim who was not an accomplice to the offense (§ 12022.7, subd. (a)). The trial court awarded Benitez five years probation, one condition of which was that he serve the first 240 days in county jail. We affirm.

In this action for wrongful death and related claims, plaintiffs’ and appellants’ 65 heirs appeal from the order of February 15, 2012, dismissing their action against Dole Food Company, Inc., under Code of Civil Procedure section 581, subdivision (f)(2),[1] and judgment of July 2, 2012, in favor of Dole following the denial of plaintiffs’ motions to set aside the dismissal under section 473 and for relief from a cost bond order under section 1030. Plaintiffs contend the orders dismissing the action and denying mandatory relief from dismissal under section 473, subdivision (b) were erroneous as a matter of law. Plaintiffs further contend the denial of relief from cost bond was an abuse of discretion. We reverse.

Inmate Willie Ray Lockett, Jr., petitions for a writ of habeas corpus after the Board of Parole Hearings (Board) found him unsuitable for parole for the fourth time. Lockett contends the Board’s denial of parole was not supported by “some evidence.” We grant Lockett’s petition and remand for a new hearing before the Board.

Vincent I. Mestre appeals from the judgment entered after a jury convicted him of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))[1] and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Appellant admitted that he suffered a prior strike conviction and served a prior prison. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) The trial court sentenced him to state prison for seven years.
Jennifer E., the victim, lived with her five children. Appellant lived with her for about a year. Jennifer owned a black Chevy Tahoe that appellant often used, with her consent.
On August 24, 2011, appellant drove Jennifer and three of her children home in her Tahoe. Appellant got out of the Tahoe first. As Jennifer stepped from the Tahoe, appellant slammed its door on her face and arms.
On September 28, 2011, appellant was driving Jennifer’s Tahoe. She did not give him permission to drive it that day.
We appointed counsel to represent appellant on appeal. Counsel filed a brief raising no issues and requesting our independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. We notified appellant that he had 30 days in which to advise us of any claims he wished us to consider. We have received no response from appellant.
We have reviewed the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 123-124; People v. Wende, supra, 25 Cal.3d at p. 441.)