CA Unpub Decisions

Defendant Randy A. Powers appeals from a judgment of conviction after a jury convicted him of robbery, based on his taking a pair of slippers out of a CVS store and behaving in a threatening manner toward an assistant manager in doing so.
On appeal, Powers contends that the trial court erred in allowing the prosecutor to rehabilitate the assistant manager by introducing, on redirect examination, portions of the assistant manager's testimony from the preliminary hearing that were consistent with the assistant manager's trial testimony. Powers asserts that these statements were not properly admissible under Evidence Code section 791, the provision on which the prosecutor and court relied in admitting them.

Daniel Allen chased Jason S. with scissors in a public park. Based on this incident, a jury found Allen guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Allen admitted one prison prior. (Pen Code, §§ 667.5, subd. (b), 668.) The court granted probation conditioned on Allen serving 365 days in local custody.
Allen contends: (1) the evidence was insufficient to show the intent element of the assault crime and that the scissors were used as a deadly weapon; (2) the court abused its discretion in excluding evidence that Jason had pepper-sprayed an unrelated third party several weeks earlier; and (3) the prosecutor engaged in prejudicial misconduct during closing arguments. We find no prejudicial error and affirm.

In June 2014, Jose Angel Avila, a felon and active member of the Otay criminal street gang, walked up to two members of a rival gang sitting in a truck and shot at them with a rifle, severely injuring one. A few days later, Avila approached another group of individuals in a parking lot in the Otay gang's territory and shot at them with the same rifle, killing one and severely injuring another. Thereafter, the police searched Avila's residence and discovered the rifle, ammunition, and gang paraphernalia.

J.T. (mother) appeals the juvenile court’s jurisdictional findings and orders. She contends there is not substantial evidence supporting the juvenile court’s finding that D.T. (the minor) was at substantial risk of harm based on mother’s failure to protect her. (Welf. & Inst. Code, § 300, subd. (b).) Specifically, mother contends no substantial evidence supports findings of substantial risk of harm with regard to the minor’s medical condition and mother’s overall unavailability. We affirm.

parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.) Mother contends the juvenile court and the Sacramento County Department of Child, Family and Adult Services (the Department) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm.

The juvenile court sustained a robbery petition against the minor M.C. On appeal, the minor challenges the sufficiency of the evidence supporting that finding. We affirm.

On appeal, defendant asks this court to review the transcript of the trial court’s in camera examination of the counseling records of one of the victims and determine whether the court erred in declining to disclose the evidence to defendant. The People do not oppose defendant’s request. We have reviewed the transcript and affirm the judgment.

We consider whether Department of Corrections and Rehabilitation (CDCR) regulations adopted to implement Article I, section 32, subdivision (a)(1) of the California Constitution (hereafter section 32(a)(1)) validly exclude petitioner Paul A. Grinker (Grinker), an admittedly nonviolent “Third Strike” offender sentenced to an indeterminate term, from early parole consideration relief under section 32(a)(1). The outcome here is controlled by our opinion in In re Edwards (September 7, 2018, B288086) ___ Cal.App.5th ___ (Edwards), published this same day. We grant Grinker’s petition and order early finality of our decision in this court.

Plaintiff and appellant James E. Moore appeals the trial court’s order disqualifying his attorney, objector and appellant James P. Griffith. In his capacity as personal representative of the estate of Barbara Jean Hayes (Barbara), defendant and respondent Edward P. Hayes (Hayes) moved for Griffith’s disqualification based on his prior representation of Barbara with respect to issues raised in the underlying litigation against her estate.

While on probation, defendant and appellant Marlo Hempstead was arrested for burglary. The trial court found that Hempstead violated the conditions of his probation, revoked probation, and imposed the previously suspended sentence. Hempstead appeals, contending there was insufficient evidence he violated probation. We disagree and affirm the order revoking probation and imposing sentence.

Plaintiff Richard Gordon (Gordon) appeals the trial court’s grant of summary judgment on his claim of retaliation under the California Fair Employment and Housing Act, Government Code section 12940, subdivision (h), in favor of defendant and respondent The Board of Trustees of California State University (defendant). Gordon’s lawsuit grew out of his 2012 claim filed with the Department of Fair Employment and Housing, alleging discrimination based on age, race and disability. Gordon and defendant reached a settlement in 2013. Two years later, Gordon brought this action, alleging that defendant retaliated against him for his earlier complaint by failing to honor the terms of the parties’ settlement agreement, impeding his research, and rendering him persona non grata among longtime colleagues.

Appellant Princess Tucker’s suit against her former physician, respondent Samy Farid, M.D., was resolved by summary judgment in favor of respondent. Appellant filed a timely notice of appeal. However, she provides an inadequate record, and her briefs on appeal fail to raise any cogent argument supporting reversal of the trial court’s order. Accordingly, we affirm.

Defendant Everardo Lopez appeals following his convictions for two counts of assault with a firearm and one count of possession of an unregistered firearm. The jury also found true that defendant personally used a firearm in the commission of the crimes and committed the crimes for the benefit of a criminal street gang. As part of defendant’s sentence for the two assault counts, the court imposed additional time for both the serious felony gang and firearm enhancements. Defendant argues that, by punishing defendant for both enhancements, the trial court violated Penal Code section 1170.1, subdivision (f) because both enhancements were based on his single use of a firearm. We agree, reverse, and remand for resentencing. We also reject the Attorney General’s argument that upon resentencing the trial court has the discretion to impose a gang enhancement applicable to nonviolent, nonserious felonies.

Codefendants James Dale Engelstad and Tracy Scott Evans were arrested by law enforcement members of a marijuana task force investigating a large scale marijuana-grow operation. A jury convicted both men of illegal drug and firearm offenses.
Engelstad raises sentencing and record correction issues on appeal. We modify Engelstad’s sentence to strike a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c). We also direct that the sentencing minute order and abstract of judgment be corrected to omit references to fines the trial court did not impose. We otherwise affirm the judgment as to Engelstad.