CA Unpub Decisions

Following his conviction by jury verdict of attempted murder (Pen. Code, SS 187/664), appellant Michael Glenn Braxton made a timely oral motion for new trial on grounds of jury misconduct, which the trial court refused to hear. (People v. Braxton (2004) 34 Cal.4th 798, 814.) In his first appeal (A096083) he contended the refusal of his motion was error. He also asserted various evidentiary and instructional errors, which he had not claimed in his motion for new trial.
Court concluded the court's refusal to hear the motion for new trial was error, and that, under the peculiar facts of the refusal, appellant was entitled to a new trial. Court addressed the evidentiary issues, as they were likely to recur on a retrial. Court declined to address the claimed instructional errors as premature, because the evidence presented at retrial, as yet uncertain, would govern the appropriate instructions.
The Supreme Court granted the People's petition for review to address the issues related to the motion for new trial. (People v. Braxton, supra, 34 Cal.4th at p. 805.) It concluded the trial court erred in not hearing appellant's motion, but it reversed our judgment and directed us to remand the matter to the trial court for a hearing on appellant's motion for new trial on the ground of jury misconduct. (Id. at pp. 814, 820.) Pursuant to California Rules of Court, then rule 26(b)(2), now rule 8.272(b)(2), we issued a remittitur and sent the trial court our remittitur, a copy of the Supreme Court remittitur, and a file stamped copy of the Supreme Court opinion.
The trial court has now heard and denied appellant's motion for new trial, and he appeals the order of denial (A110446).
Subsequent to his appeal in A110446, appellant asked us to recall the remittitur in our original opinion in order to address the evidentiary and instructional claims of error, the resolution of which was not necessary for our conclusion in that opinion. He also asked that we consolidate the two appeals. Court granted his request.

Defendant Donald Jones fired a rifle from a van at a group of four teenagers. Jones's brother, codefendant Larry Dean Ridge, Jr., owned the van and was a passenger in the van along with two other men. A rifle shot killed one of the teenagers, and return fire from the street killed a van passenger.
A jury convicted Jones of two counts of first degree murder for the deaths of the teenager and van passenger, and three counts of attempted murder of the surviving teenagers. (Pen. Code, SS 187, subd. (a), 189, 664 [all further section reference are to this code].) For both murder convictions, the jury found that Jones personally discharged a firearm and caused the death of a person other than an accomplice. (§ 12022.53, subd. (d).) The court sentenced Jones to three consecutive life sentences in prison, two without possibility of parole, and multiple firearm use enhancements that include life terms. The jury convicted codefendant Ridge of two counts of second degree murder and three counts of attempted murder. (SS 187, subd. (a), 189, 664.) Ridge is serving two consecutive terms of 20 years to life, with a one year firearm enhancement for the murders, plus an aggregate determinate term of 11 years, 8 months for the attempted murders. Both defendants appeal.
Jones presented an alibi defense at trial and, on appeal, challenges admission of an eyewitness identification and exclusion of expert testimony about that identification. Jones also maintains that his murder conviction for the death of his van companion was improperly fixed in the first degree, and that the firearm enhancement as to the van passenger should be stricken because the passenger was an accomplice. Jones claims that the enhancement finding is otherwise flawed as the product of instructional error. Jones, along with Ridge, argue that the jury, not the trial court, should have made any findings used to impose consecutive sentences.

Ridge separately argues that his convictions for murder and attempted murder must be reversed because there is insufficient evidence that he aided and abetted the crimes. Ridge denies knowledge that Jones would shoot people and denies an intention to aid the shooting. Ridge also argues that the case was tried on the theory that he was either guilty of first degree murder or no murder, and the court erred in instructing the jury on second degree murder. Ridge maintains that he would have been acquitted of murder in the absence of the instructional error, and thus reversal is required.

Court affirm the judgments with a single modification. The 25 years to life firearm use enhancement for Jones's murder of his van companion (S 12022.53, subd. (d)) must be modified to a 20 year enhancement (S 12022.53, subd. (c)), due to instructional error.

Plaintiff Ginbineh T. Ayele, in propria persona, appeals from orders of the San Francisco Superior Court entering judgment against him and in favor of defendants Permanente Medical Group, Inc., Kaiser Foundation Hospitals and Kaiser Foundation Health Plan, Inc. (collectively Kaiser) in superior court cases No. 404360 and No. 404359. These judgments were entered based upon an arbitration award against appellant and in favor of Kaiser. Court conclude that having failed to challenge the arbitrator's award within the 100-day period provided by Code of Civil Procedure section 1288 for vacating an arbitration award, appellant may not challenge it on appeal. Court therefore affirm the judgment.

Defendant appeals a judgment entered upon a jury verdict finding him guilty in count one of grand theft (Pen. Code, S 487, subd. (a)), in count two of second degree commercial burglary (SS 459, 460, subd. (b)), and in count three of attempted grand theft (SS 487, subd. (a), 664). The trial court sentenced defendant to the two year midterm on count one, to a concurrent one year term on count three, and stayed sentence on count two. Defendant contends on appeal that he could not properly be convicted of both the theft alleged in count one and the attempted theft alleged in count three. Court agree and conclude the attempted theft conviction must be reversed.

Appellant contends his conviction for battery on school property (Pen. Code, S 243.2, subd. (a)), a misdemeanor, should be reversed because he was acting in self defense. Court affirm the judgment.

Plaintiff Robert Roe appeals from denial of his motion for attorney fees under 42 United States Code section 1988. Court reverse and remand for the trial court to exercise its discretion to award reasonable attorney fees.

Defendant entered a plea of guilty to second degree robbery (Pen. Code, S 211), two counts of assault with a firearm (S 245, subd. (a)(2)), and criminal street gang activity (S 186.22, subd. (a)). He also admitted an associated enhancement for commission of offenses to promote a criminal street gang (S 186.22, subd. (b)(1)), and that he was 16 years of age or older when he committed the offenses (Welf. and Inst. Code, S 707, subd. (d)(1)). He was denied probation and sentenced as an adult to an aggregate state prison term of seven years. The sole contention made in this appeal is that the trial court erred by denying defendant probation and imposing the prison term. Court conclude that the sentence was not an abuse of the trial court's discretion, and affirm the judgment.

Appellants Steven L. Gomes and Premier Design & Construction, Inc. (Gomes), real estate developers, challenged a school facilities fee imposed by respondent Ukiah Unified School District (District). In a prior appeal, court reversed because the District had failed to identify the use to which the fee would be put, as required by law. (Gomes v. Ukiah Unified School Dist. (Nov. 10, 2004, A104744) [nonpub. opn.] at pp. 10 to 13, 15 (Gomes II).) The District's fee resolution did, however, recite that the fees would be used for "construction and/or reconstruction of school facilities as identified in the plan," and made reference to "applications and related documents filed with the State Allocation Board . . . (. . . referred to as the 'Plan.')" Because "the Plan" was not in the record we could not determine what it was, or whether the fee exceeded the reasonable cost of the facilities for which it was imposed. We therefore remanded for the limited purpose of giving the District the opportunity to produce the plan referred to in the resolution; court directed the trial court to determine whether there was a "Plan," and whether the fees exceeded the reasonable costs of the "Plan." (Id. at pp. 13-14, 15.)
The trial court should not have permitted the introduction of testimony and a new set of documents to prove a newly minted theory to justify the District's fee. This kind of post hoc rationalization fails to conform to the procedures required by law. Moreover, although the District is entitled to rely on public documents to identify the facilities for which the fee will be used, the "applications and related documents filed with the State Allocation Board" (relied upon by the District in adopting the fee) do not comprise any decipherable "Plan" for any facilities. Accordingly, court reverse the judgment and remand the matter to the trial court with orders to issue the peremptory writ of mandate.

Defendant was convicted of attempted murder, assault with a deadly weapon and mayhem. On appeal, Chatman contends the judgment must be reversed for two independent reasons, juror misconduct and ineffective assistance of counsel. Court affirm.

Appellant was made a ward of the court under Welfare and Institutions Code section 800 after the court sustained the majority of the allegations of a Welfare and Institutions code section 602 petition, including an allegation that he committed two felonies of assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1). On appeal, Earl T. contends that the evidence of the victim's injuries does not support a finding he committed serious bodily injury under Penal Code section 243. Because the court did not make any such finding, court affirm the judgment.

Labor Code section 4702, subdivision (a)(6)(B) provides that when a worker without dependents is fatally injured during the course and scope of employment, the employer must pay $250,000 to the deceased worker's estate as a compensation death benefit. In Six Flags, Inc. v. Workers' Compensation Appeals Bd. (2006) 145 Cal.App.4th 91 (Six Flags), the Second District Court of Appeal held that this provision is unconstitutional because the California Constitution does not identify workers' estates as a class of beneficiaries under the workers' compensation law. Court agree with the reasoning of Six Flags and annul an award of $250,000 in death benefits to the estate of Bernard Giradot.

Otis M. appeals from an order continuing him as a ward of the juvenile court and committing him to out of home placement at the Orin Allen Youth Rehabilitation Facility for six months. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) After review of the record, court find no arguable issues and affirm.

Mother of the young minor J.R., filed this petition for extraordinary writ pursuant to California Rules of Court, former rule 38.1, now rule 8.452, seeking to vacate an order of the trial court made on October 10, 2006, that terminated reunification services and set a hearing under Welfare and Institutions Code section 366.26 to consider termination of Mother's parental rights. For the reasons set forth below, the petition is denied.

Defendant appeals from the judgment entered following his conviction, by jury trial, for two counts of first degree murder with a multiple murder special circumstance finding, and enhancements for firearm use and gang activity (Pen. Code, S 187, 190.2, subd. (a)(3), 12022.53, 186.22, subd. (b)(1)). Sentenced to state prison for consecutive terms of life without possibility of parole, plus 35 years to life, Morales contends there was trial and sentencing error.
The judgment is affirmed.