CA Unpub Decisions

Pedro Vasquez appeals from judgment after a jury convicted him of two counts of second degree murder for the killing of two brothers, Juan and Antonio Aguilar. The jury found that Vasquez personally discharged a firearm during each offense. (Pen. Code, § 12022.53, subds. (d).) The trial court sentenced Vasquez to a total term of 80 years to life, comprised of two consecutive terms of 15 years to life for the murders and 25 years to life for each of the firearm enhancements.
We reject Vasquez’s contention that there was sufficient evidence of provocation to require the trial court to instruct the jury on voluntary manslaughter sua sponte. We agree the trial court should have an opportunity to exercise its discretion to strike the firearm enhancements in the interest of justice under the 2018 amendment to section 12022.53, subdivision (h). The amendment became effective days before Vasquez was sentenced and the trial court appears not to have been aware of it.

A jury convicted defendant and appellant Demonte Thomas of first degree murder (Pen. Code, § 187, subd. (a) ) and found that he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life in state prison. On appeal, defendant contends that his lawyer provided ineffective assistance of counsel by failing to request the trial court instruct the jury on provocation with CALCRIM No. 522. We affirm.

Mother appeals from the disposition order of the juvenile court. She contends that the court had no grounds to release Z.T. and Z.C.T. to their father and the order violated the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). We affirm.

LOA Investments, LLC (LOA) agreed to loan money to Overland Direct, Inc. (Overland). A deed of trust on real property secured the loan. However, LOA never loaned the money but recorded the deed of trust and assigned it to Horizon Bancorp (Horizon), which foreclosed on it. Notwithstanding that these events occurred in 2009 through 2011, Overland did not file its complaint to, among other things, quiet title to the property until 2016. The trial court therefore granted LOA and Horizon’s motion for judgment on the pleadings on the ground the causes of action were time-barred. Overland appeals, contending that the court should have granted it leave to amend. We disagree and affirm the judgment.

Count 2 of an amended information charged appellant Terry Clay Williams with an assault on the person of Darrin Wesley by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). Count 5 charged appellant with a violation of section 245, subdivision (a)(4) as to another victim, Luevette Carter. Both counts alleged the infliction of great bodily injury within the meaning of section 12022.7, subdivision (a).
Count 6 charged appellant with assault with a firearm (§ 245, subd. (a)(2)) as to Wesley. Count 7 charged appellant with another violation of section 245, subdivision (a)(2) as to Carter. Both counts alleged that appellant personally used a firearm within the meaning of section 12022.5.

Defendant and appellant Christopher Eskridge was convicted of two counts of perjury by declaration (Pen. Code, § 118, subd. (a)) and two counts of procuring or offering a false or forged instrument for filing (§ 115, subd. (a)). Eskridge appeals his felony convictions for violating section 115, contending he was wrongfully prosecuted under a general statute that is preempted by a more specific misdemeanor statute, Vehicle Code section 20. Eskridge’s contention has merit. Accordingly, we reverse Eskridge’s convictions for violating section 115, subdivision (a), and in all other respects affirm.

The jury found defendant and appellant Norman Blanco guilty of possession of contraband in prison. (Pen. Code, § 4573.6, subd. (a).) In a bifurcated bench trial, the trial court found true the allegation that Blanco had suffered a prior serious or violent felony conviction within the meaning of the three strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
The court denied Blanco’s motion to strike his prior strike conviction under Romero, and sentenced him to six years in state prison, consisting of the middle term of three years, doubled pursuant to the three strikes law. The court ordered this six-year sentence to run consecutive to the term of imprisonment Blanco was serving at the time of the instant offense.

A jury convicted Enrique Gonzalez of the 2004 first degree murder of Gregory Gabriel, who was shot by Gonzalez’s friend, Carlos Argueta. We affirmed Gonzalez’s conviction, but remanded to the trial court for resentencing as to the firearm enhancements. (People v. Gonzalez (Apr. 29, 2008, B197530) [nonpub. opn.] (Gonzalez I).) In 2008 the Supreme Court denied review (No. S164046).

By information, appellant Oscar Hercules was charged with one count of assault with a deadly weapon (a knife). (Pen. Code, § 245, subd. (a)(1).) It was further alleged that appellant had two prior “strike” convictions for purposes of the “Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12), which were also five-year serious felony prior convictions (§ 667, subd. (a)(1)): a 2012 criminal threat conviction (§ 422) and a 2014 conviction for a felony attempt to dissuade a victim or witness from making a report (§ 136.1, subd. (b)(1)).

Defendant Jaime Lorenzo appeals the trial court’s failure to order a supplemental probation report prior to resentencing him upon a grant of a habeas corpus petition. We agree that the trial court erred but conclude that the error was harmless. We therefore affirm.

The juvenile court sustained a petition under Welfare and Institutions Code section 602 alleging that Pablo G. committed a battery against a security officer in violation of Penal Code section 243, subdivision (b). Pablo G. appeals the adjudication order, contending that: (1) the prosecution presented insufficient evidence that the victim was a security officer within the meaning of Penal Code section 243; and (2) the court abused its discretion when it denied his request for a continuance to obtain the presence of a witness.
We agree there is insufficient evidence to support the court’s finding that Pablo G. committed a battery against a security officer, and therefore modify the adjudication order to the lesser included offense of simple battery under Penal Code section 242. We also conclude that the trial court did not abuse its discretion in denying the continuance.

Wilma and Raymond Pickett sued their mortgage lender CIT Bank, N.A, erroneously sued as IndyMac Mortgage Services (IndyMac), for negligence based on allegations IndyMac failed to ensure that repairs to the Picketts’ house were properly done. The trial court granted IndyMac’s motion for summary judgment on the ground IndyMac, as a mere lender, owed the Picketts no duty of care. We agree and affirm the judgment.

Defendant Anthony R. Clipper appeals from a judgment of conviction entered after a jury trial for three counts of attempting to dissuade a witness from prosecuting a crime, misdemeanor battery, and disobeying a court order. Clipper contends the trial court committed instructional error as to the elements of the charged offense of dissuading a witness in violation of Penal Code section 136.1, subdivision (b)(2), and that the error was prejudicial. We agree and reverse Clipper’s convictions on counts 3, 4, and 5.

Daniel Hyunmin Cho appeals from a judgment dismissing his petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) after the State Board of Optometry (Board) found he practiced optometry without a license and placed his license on probationary status. We will affirm the judgment.