CA Unpub Decisions

Brinderson, L.P. appeals from the trial court’s judgment notwithstanding the verdict (JNOV) and alternative order granting a new trial after a jury found for Brinderson in this action by Equilon Enterprises, LLC, seeking contractual indemnification for costs incurred in settling a third party action for personal injuries. The third party was injured when diesel fuel escaped from an oil pipeline built by Brinderson. Because there was substantial evidence to support the jury’s verdict, we reverse the JNOV. However, we affirm the new trial order and remand for further proceedings.

Nothing in section 186.22, subdivision (b), requires that the so-called “predicate” offenses actually predate the charged offense. Subdivision (e) defines a “‘pattern of criminal street gang activity’” as “the commission of . . . two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense; and the offenses were committed on separate occasions, or by two or more persons.” The only temporal requirement is that the first and last of these offenses have been committed no more than three years apart.

This is an appeal from the juvenile court’s jurisdictional order of May 2, 2012 and disposition order of June 7, 2012. Pursuant to these orders, the juvenile court found beyond a reasonable doubt that minor E.V. committed vehicle theft in violation of Vehicle Code section 10851, which is a “wobbler” offense, as well as several misdemeanor offenses. The juvenile court then continued minor as a ward, and placed him on probation with 40 days of custody credits. For reasons set forth below, we remand this matter to the juvenile court to consider and declare whether minor’s vehicle theft offense is a felony or misdemeanor. In all other regards, the juvenile court orders are affirmed.

Tyler John Borg appeals from a judgment imposed following revocation of his probation. He contends that the trial court abused its discretion in imposing a previously suspended prison sentence of eight years. We affirm.

After a jury trial, appellant was convicted of violations of both Penal Code sections 273a, subdivision (a) and 273d[1] in connection with burns incurred by his then 17-month-old son. He appeals, claiming that the two crimes of which he was convicted were “mutually exclusive” and that, therefore, one of those convictions should be set aside. He also claims that the probation revocation fee imposed on him should be set aside because the trial court did not properly assess his ability to pay the same. We reject both arguments and affirm both the conviction and the sentence, including the probation fee imposed.

Gerald Marquez appeals from a judgment entered upon his no contest plea to first-degree burglary (Pen. Code, § 459) and two counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a) (1)). On appeal, he contends that the court's imposition of separate punishments on the two assault counts violated Penal Code section 654. We disagree and therefore affirm the judgment.

A jury convicted defendant Anthony Porter of a number of crimes and found true a number of sentence-enhancement allegations following his participation in a drive-by shooting at individuals who were sitting on a porch. The crimes included two counts of attempted murder. The trial court sentenced him to 25 years in state prison, but in so doing, it granted a new trial on two allegations: (1) that the crimes were committed for the benefit of a criminal street gang; and (2) that the attempted murders were committed willfully, deliberately and with premeditation. A true finding on these allegations could have resulted in a life sentence with an 85-year minimum term.

At the 18-month review hearing (Welf. & Inst. Code, § 366.22, subd. (a); Cal. Rules of Court, rule 5.720)[1] in the dependency case of four-year old M.R. (son), the trial court declined to return son to the custody of his parents. The court instead terminated reunification services and set a hearing under section 366.26 to consider the termination of parental rights. Timothy R. (father) challenges the court’s orders by petition for writ of mandate. (See Cal. Rules of Court, rule 8.452.) Because the court’s orders are supported by substantial evidence, we deny father’s petition.

A jury convicted defendant Ricardo Dagoberto Diaz-Nivarez of first degree murder. (Pen. Code, § 187, subd. (a).)[1] The court sentenced defendant to 25 years to life. On appeal, defendant argues insufficient evidence supports the conviction. We affirm the judgment.

A jury convicted defendant Jennifer Alice Dellarusso of felony vandalism with a finding the damage exceeded $400. She admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)) and the trial court sentenced her to 3 years in prison, but directed she serve 6 months in county jail and the remainder of the term on mandatory supervision. She appeals claiming the trial court erred by (1) denying a motion to discharge appointed counsel (People v. Marsden (1970) 2 Cal.3d 118; Marsden motion), and (2) ruling the prosecution could impeach a potential defense witness with evidence of the conduct underlying a pending drug trafficking criminal charge. Finding no error, we affirm the judgment.

Darryl B. (father) appeals from a visitation order made at a six-month review hearing, which gave him twice yearly visitation with his two-year-old daughter, Jazmine, who is a dependent under Welfare and Institutions Code section 300, subdivision (b).[1] Father, who at the time of the review hearing was incarcerated in a federal facility in Bakersfield, contends the juvenile court abused its discretion in limiting visitation to twice per year. We affirm.

On January 13, 2010, police officers executed a search warrant at appellant Heriberto Gabriel Ibarra’s residence, where they found, among other things, cocaine and a fully loaded shotgun. A defense motion to quash the search warrant and suppress evidence was heard and denied. Later, appellant pled no contest to a single count of possession of cocaine for sale (Health & Saf. Code, § 11351) and entered into a stipulated sentence of two years in state prison. On September 29, 2011, the court sentenced defendant to two years in state prison.
The sole ground for appellant’s appeal is his contention that the October 1, 2011, amendment to Penal Code section 1170, subdivision (h), should be applied retroactively, notwithstanding that the legislation expressly states that it shall be applied prospectively. Appellant contends that equal protection principles mandate retroactive application of the statutory amendments. We disagree and affirm.

This is an appeal from summary judgment granted against plaintiff and appellant, James Beaty, on his four causes of action against defendant and respondent, Gold Springs West Association (the association). The case involves construction of certain provisions of the governing documents of a homeowners association. We reverse the summary judgment, but modify and affirm portions as a summary adjudication of issues, reverse portions, and remand for entry of a new order on the association’s motion for summary adjudication. We will also remand the matter to the trial court for further proceedings on plaintiff’s first, second, and third causes of action.

Fifteen-year-old defendant Jorge Martin Trinidad was convicted of first degree murder and second degree robbery after he repeatedly stabbed Marcella Ramos and took her purse. On appeal, he contends (1) the trial court erred in refusing to instruct the jury on the right to use force to recover stolen property, (2) the trial court erred in refusing to instruct the jury on the claim-of-right defense to robbery, and (3) defense counsel was ineffective for failing to object to the prosecutor’s closing argument on provocation and voluntary manslaughter. We will affirm.