CA Unpub Decisions

Appellant Antonio Woods was convicted by a jury of murder, on an aider and abettor theory of liability, and of being a convicted felon in possession of a firearm. The trial court sentenced him to 25 years to life in prison. Appellant asserts that the trial court violated his right to a fair trial by an impartial jury when it excused a juror for health reasons. He further claims constitutional deprivation of his right to be present during the conference leading to discharge of the juror. Court affirm.

Dion McNeally appeals from his conviction, after a jury trial, of three counts of second degree robbery (Pen. Code, 212.5, subd. (c)). He challenges the conviction on count 3, arguing that the trial court failed to respond adequately to two of the jurys questions during deliberations. Appellant additionally contends the trial court erred in imposing the upper term sentence. Court reject these contentions and affirm the judgment.

A woman accused plaintiff Frank Morrow, Jr., an Oakland police officer, of sexually assaulting her when she was in his custody. The City of Oakland (City) settled the womans civil claim for damages and Morrow has filed several lawsuits challenging the Citys internal investigation and legal representation of him, and the conduct of the accusers attorneys. In this latest lawsuit, the trial court applied collateral estoppel to bar Morrow from repeating claims previously adjudicated in federal court.
Morrow, in propria persona, appeals after demurrers to his complaint were sustained without leave to amend, and summary judgment was granted on the Citys cross-complaint for breach of a settlement agreement entered in prior litigation. Respondents fall into three, separately represented groups: (1) the City, City Attorney John Russo, Assistant City Attorney Randolph Hall, and Attorney James Hodgkins (collectively, City defendants); (2) the Burnham Brown law firm and its attorneys John Verber and Claudia Leed, who defended Morrow in the sexual assault litigation (collectively, Burnham Brown); and (3) attorneys Dennis Roberts and Paul Turley, who represented Morrows accuser. Court affirm the judgments.

In this consolidated appeal, appellant Cutter Aviation Santa Monica, Inc. (appellant) appeals from a judgment entered after a jury trial and an amended judgment entered after respondents Robynaire, Inc.(Robynaire) and Robyn Astaire (Astaire) (collectively respondents) accepted a remittitur under a ruling on appellants motion for a new trial. Pursuant to the amended judgment, respondents were awarded $691,915.40 plus prejudgment interest and costs on their claims for negligence and breach of contract arising out of an action for damage to respondents personal property, an Aerostar aircraft. Court affirm the judgment.

After a court trial, appellant David Thomas Wright was convicted of first degree murder. (Pen. Code, 187, subd. (a).) The trial court found true the allegations that appellant committed the murder while engaged in the commission of sodomy ( 190.2, subd. (a)(17)), and that appellant had suffered a prior conviction of a serious or violent felony within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). The trial court sentenced appellant to life in prison without the possibility of parole (LWOP).
Appellant contends, and respondent concedes, that the abstract of judgment must be amended to delete reference to a parole revocation fine pursuant to section 1202.45.
The oral pronouncement of judgment reveals that the trial court did not impose such a fine. In any event, such a fine would have been in error, since the trial court sentenced appellant to LWOP. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) The judgment is affirmed.

Defendant, Marcel Dion Harling, appeals from his convictions for two counts of second degree murder (Pen. Code,[1] 187, subd. (a)) and one count of attempted murder. ( 187, subd. (a), 664.) Defendant also appeals from the jurors findings that: a principal personally used a firearm; the firearm use proximately caused great bodily injury and death; and that the offenses were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d).) Defendant contends: there was instructional error in connection with the gang allegation; the evidence is insufficient to support the gang allegation which in turn requires reversal of all firearm use findings; it was error to impose a 15-year minimum term; and he is entitled to an additional day of presentence credit. The Attorney General argues that additional court security fines must be imposed. Court reverse the gang enhancement and firearm use findings based on sufficiency of the evidence grounds, remand to permit the trial court to exercise its discretion as to the determinate unpremeditated murder sentence, award an additional day of presentence credit, and increase the amount of court security fines.

City of Santa Monica, Ballona Wetlands Land Trust, Anthony Morales, and Surfrider Foundation (collectively Petitioners) and Ballona Ecosystem Education Project (BEEP) challenge the certification by City of Los Angeles (City) of an environmental impact report (EIR) and the Citys approval of phase two of the Playa Vista development project. They appeal a judgment denying their petitions for writ of mandate in two consolidated cases. Petitioners challenge the adequacy of the EIR and the Citys findings under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.) with respect to historical archaeological resources, methane gas, wastewater, transportation, and alternatives to the project. BEEP challenges the adequacy of the EIR as to its project description and also challenges the EIR and the Citys findings with respect to land use, transportation, project alternatives, and the statement of overriding conditions. Court conclude that the EIR was deficient in its analysis of land use impacts, mitigation of impacts on historical archaeological resources, and wastewater impacts. Court therefore reverse the judgment with directions to the superior court to issue a peremptory writ of mandate ordering the City to vacate its certification of the EIR and its project approvals and make appropriate revisions to the EIR.

A jury convicted defendant and appellant Jose Barajas of one count of second degree murder and one count of shooting at an occupied vehicle. His defense was self-defense. On appeal, Barajas contends that the trial court prejudicially erred by giving the jury an incorrect instruction on the distinction between murder and manslaughter and by not sua sponte instructing the jury with CALJIC No. 5.17 concerning imperfect self defense. He also contends that the trial court improperly excluded evidence of the victims character for violence and that there were sentencing errors. Court agree that there is an error in Barajass sentence, but Court disagree with his other contentions. Court therefore modify the judgment, and affirm it as modified.

Juan Miguel Flores, also known as Carlos Flores, appeals from a judgment entered upon his conviction by jury of second degree murder (Pen. Code, 187, subd. (a)). The jury also found to be true the firearm use allegations within the meaning of sections 12022.53, subdivision (d) and 12022, subdivision (a)(1). The trial court sentenced defendant to an aggregate prison term of 40 years to life. Defendant contends that there was insufficient evidence (1) that the shooting amounted to second degree murder, and (2) to support the section 12022.53, subdivision (d) firearm enhancement. Court affirm.

Norman Bernier (appellant) appeals from a judgment entered after a jury trial in which he was convicted of possession of a destructive device, in violation of Penal Code section 12303.2, and possession of methamphetamine, in violation of Health & Safety Code section 11377, subdivision (a). Court affirm.

Frank Buffington III appeals from a judgment entered following his no contest plea to transporting a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a), and his admission that he suffered two prior convictions of a serious or violent felony within the meaning of the Three Strikes law, Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). Pursuant to the negotiated plea, one of the Strike priors was stricken and appellant was sentenced to prison for a total of eight years, composed of the middle term of four years doubled by reason of the remaining strike.
Court have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
The judgment is affirmed.

John A. Rose appeals from judgment entered following his no contest plea to possession for sale of cocaine (Health & Saf., Code 11351.5). Pursuant to his negotiated plea, he was sentenced to the low term of three years. The court denied appellants suppression motion finding there was probable cause to arrest appellant and the subsequent search was not unreasonably intrusive.
The judgment is affirmed.

A mother appeals an order denying her request to stop her minor daughters weekly, one-hour, monitored visits with a friend, Joseph R. Mother lost custody of her daughter because Mother inflicted serious physical harm on her daughter and because her daughter was sexually abused. Mother, an unfit parent whose daughter has been adjudged a dependent child of the court, no longer has the right to control visitation and the juvenile court is not required to defer to Mothers wishes regarding visitation. Moreover, Mother has not shown that the trial courts visitation order allowing continued monitored visits with Joseph R. was an abuse of discretion. Court affirm the order.

Defendant then filed a petition for writ of certiorari in the United States Supreme Court (docket No. 05-10189). The United States Supreme Court subsequently decided Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] in January of 2007, rejecting the state Supreme Courts reasoning in Black I. The United States Supreme Court granted defendants petition, vacated the judgment of this court, and remanded the cause to us for further consideration in light of Cunningham.
Court have now come full circle. Court hold that defendants sentence violates Blakely, Cunningham and related authority.