CA Unpub Decisions

A jury convicted Jesus Manuel Rodriguez and Edgar Octavio Barajas (collectively, defendants) of willful, deliberate, and premeditated murder, conspiracy to commit murder, and active participation in a criminal street gang, arising from the shooting death of a young girl in a park in Modesto. A firearm enhancement also was found true. This case has a lengthy and complicated procedural history. In our unpublished opinion in case No. F065807, we affirmed the judgments of both defendants. The defendants appealed to the California Supreme Court (Supreme Court), and in an opinion filed May 17, 2018, People v. Rodriguez (2018) 4 Cal.5th 1123, that court reversed defendant Barajas’s convictions with directions to enter a judgment of acquittal. As to defendant Rodriguez, the Supreme Court remanded the matter to this court, with directions to remand to the trial court for the trial court to consider exercising its discretion under Penal Code section 12022.53, subdivision (h) with respect

In September 1994, defendant and appellant Derrick Wilson pled guilty to robbery (Pen. Code, § 211) with the personal use of a firearm (§ 12022.5, subd. (a)). He also admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i)), to wit, two 1987 residential burglary convictions. In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to a total term of 28 years to life in state prison.

Defendant and appellant B.M. (mother) is the biological mother of T.G. (minor; a boy born Jan. 2017). Mother’s sole issue on appeal is that the juvenile court abused its discretion in denying her reunification services.

After a full trial, the trial court ruled that, pursuant to the couple’s premarital agreement, the houses that they acquired during the marriage and paid for out of the wife’s separate property were her separate property. It ordered the wife to pay the husband spousal support, child support, and attorney fees (though not as much as he was seeking). However, it declined to order the wife to pay the husband’s post-separation debts.
The husband appeals, challenging virtually every ruling by the trial court. Finding no error, we will affirm.

Defendant Lawrence Edward Kennedy challenges his murder conviction on a single ground. He contends that a limitation imposed during his cross-examination of a particular witness violated his rights to confront adverse witnesses and to due process. But the solitary line of questioning upon which Kennedy's appeal rests invited a potentially lengthy, convoluted detour that simply could not be justified by the scant relevance contemplated. On these facts, we cannot conclude the trial court abused its discretion in excluding that narrow type of questioning. Likewise, no meritorious constitutional claim arises from this permissible application of our ordinary state evidentiary rules. And even if we were to find state law evidentiary error here, we would deem it harmless. We accordingly affirm.

Henry Gamboa appeals from an order denying his motion to discharge a receiver appointed to aid Cottonwood Cajon ES, LLC (Cottonwood) in the satisfaction of a $15.9 million judgment against Gamboa.
Cottonwood is the creditor and Gamboa is the guarantor of a commercial loan that went into default. Cottonwood obtained a $15.9 million judgment against Gamboa for breach of the guaranty, which Gamboa has not paid. The trial court appointed a receiver to assist in the satisfaction of the judgment and Gamboa thereafter filed a motion to discharge the receiver, arguing that a receiver was unnecessary because the judgment had already been satisfied. The trial court denied Gamboa's motion to discharge the receiver.

In this dependency case, mother pled no contest to a Welfare and Institutions Code section 300 petition. On appeal, she principally challenges the juvenile court’s dispositional order placing two of her three children in their father’s custody. Mother’s legal arguments are based on inaccurate factual premises and accordingly provide no basis for reversal. We affirm the juvenile court’s jurisdictional and dispositional orders.

After being placed on formal probation in two separate criminal cases for physically and verbally abusing his elderly and disabled father and his sister, Jose Sepulveda (defendant) admitted to violating probation in both cases and was sentenced to four years in prison. The trial court also issued an order prohibiting defendant from having any contact with his father, his sister, and their home for a period of 10 years. On appeal, defendant challenges the duration of the protective order. The trial court did not err in imposing a 10-year restriction and defendant’s arguments to the contrary are baseless. However, the restraining order contains several clerical errors that must be corrected. Otherwise, we affirm.

Fatai Agbabiaka (defendant) was charged with felony possession of controlled substances, and convicted by a jury of the lesser included crime of simple possession. On appeal, he argues that the trial court abused its discretion in not conducting an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he told the court that he was looking to “[g]et rid of” his appointed counsel and was “asking for somebody else.” Defendant is right, and we conditionally reverse his convictions and order that the trial court conduct an in camera hearing at which defendant may state his reasons for desiring the appointment of new counsel; if those reasons satisfy Marsden’s requirements for the appointment of new counsel, the court must order a new trial. (Accord, People v. Minor (1980) 104 Cal.App.3d 194, 200 (Minor).)

Defendant and appellant Raekwon Franklin (defendant) was convicted of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664 and 187, subd. (a) ) and assault with a firearm (§ 245, subd. (a)(2)). On appeal, he contends his convictions should be reversed because the trial erred by excluding evidence that defendant’s two victims had sustained juvenile adjudications for assault and making criminal threats. Because we find that defendant has forfeited such claims by failing to raise them adequately before the trial court, we affirm the convictions. We do, however, vacate defendant’s sentence and remand for resentencing in accordance with this opinion.

George Hernandez (defendant) stands convicted of second degree murder for stabbing his roommates’ friend 41 times. In this appeal, he argues that the trial court should have given the jury a special defense-of-home instruction applicable to intruders and that the defense-of-home instruction the jury heard improperly shifted the burden of proof onto him. These arguments lack merit, so we affirm.

A jury convicted Jonathan Schmidt (defendant) of second degree robbery when he slapped a 7-Eleven store manager while absconding with a $2.49 can of chilled Starbucks coffee. On appeal, he argues that the trial court erred (1) in allowing the 7-Eleven store cashier and the manager to testify to what they saw on surveillance video that was never authenticated, and (2) instructing the jury, consistent with People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes), that defendant could be convicted of robbery if he used force or fear in the victim’s immediate presence to carry away the merchandise. We reject both arguments, and affirm.

During the five years they dated, a girlfriend repeatedly asked her boyfriend to loan her money. Based on her assurances that she had equity in her home and car and that she would soon receive a large inheritance, the boyfriend loaned her more than $110,000—his life savings. After they broke up, the boyfriend sued to collect the debt. Following a bench trial, the trial court ruled for the boyfriend. The girlfriend now appeals. Because her appeal lacks merit, we affirm.

Two orthopedists had a contract to share office space and staff, and to split those expenses.  After one of the orthopedists died unexpectedly, his widow and adult son continued using the office space and staff for several months to wind down his practice but after a month refused to pay their share of the expenses.  To recover that unpaid share, the surviving doctor demanded arbitration against the deceased orthopedist’s professional corporation, against his successors in interest, and against the personal representative of his estate.  An arbitrator found that the nonpayment of expenses breached the office space and staff sharing contract; ruled that the widow and son—as successors in interest to the deceased orthopedist and/or representatives of his estate—were liable for that breach (along with the professional corporation); and imposed a constructive trust on any funds from the professional corporation’s or the deceased orthopedist’s assets.  The trial court confirme