CA Unpub Decisions

A jury convicted defendant/appellant Larry Jermaine Miles of first degree murder for the shooting death of Jenny Jackie Torres (Pen. Code, § 187, subd. (a); count 1). The jury found true that defendant committed the murder as an active gang member and to further the activities of the gang (§ 190.2, subd. (a)(22)), and it found true various firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). In addition, he was convicted of making criminal threats (§ 422; count 2) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3). The jury found true that the latter two offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(B)).

This appeal relates to water well construction in Stanislaus County. The County issues hundreds of permits annually for residential and agricultural uses under an apparently routine permitting process.
The main purpose of environmental review under the California Environmental Quality Act (CEQA) is to “identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which significant effects can be mitigated or avoided.” (Pub. Res. § 21002.1, subd.(a).) This environmental review is often costly, so statutory and categorical exemptions have been created to ease the burdens of environmental review for certain classes of projects. There is also an exemption “called the “common sense” exemption, which applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment” (CEQA Guidelines, § 15061, subd.(b)(3).

Plaintiff and appellant Irvin Verduzco appeals from a judgment of the Superior Court of Stanislaus County entered on April 20, 2015, in favor of defendant and respondent Ford Motor Company (Ford).
Verduzco sustained a skull fracture and brain trauma, inter alia, in an automobile collision. He sued Ford, alleging a defect in the design of the 1993 Ford Taurus—the car in which he was riding at the time of the accident—caused his head injuries. In a special verdict, the jury concluded the Taurus’s design was not “a substantial factor in causing harm . . . .”
On appeal, Verduzco makes several contentions. First, substantial evidence did not support the special verdict. Second, the trial court erroneously denied a motion to compel Ford to produce tests relied upon by its experts to demonstrate how the Taurus’s design balanced crash energy absorption and intrusion resistance. Third, the court erroneously refused to give his two requested special instructions on causa

After driving up to a pharmacy that had just closed for the day, defendant and appellant, Tyrone Anthony Parks III, jumped over a rail and tugged at the front door. Following a jury trial, defendant, along with two associates, was convicted of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)) of a pharmacy, committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)); possession of a loaded firearm (§ 25850, subd. (a)); and active participation in a criminal street gang (§ 186.22, subd. (a)). Defendant was sentenced to eight years in prison and appealed.
On appeal, defendant claims the court erred in admitting testimonial hearsay to prove the gang enhancement and active participation in a gang count, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He also requests a modification of the abstract of judgment, which the People do not oppose. We affirm as modified.

A jury convicted defendant and appellant Nayeli Serafin of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1); count 1), robbery (§ 211; count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), second degree burglary (§ 459 count 4), and embezzlement (§ 503; count 5). She received a sentence of seven years to life.
On appeal, Serafin argues that no substantial evidence supports her kidnapping for robbery conviction because the movement of the victim was incidental to the robbery and did not increase the victim’s risk of harm. She also argues that her counsel’s failure to seek exclusion of certain evidence implicating her as a perpetrator in a previous robbery constituted ineffective assistance of counsel.
We find that substantial evidence supports Serafin’s kidnapping for robbery conviction, reject her claim of ineffective assistance of counsel, and affirm the judgment.

In December 1998, defendants and appellants Mario Ortega and Jimmy Arevalo were convicted by separate juries of carjacking, kidnapping and sexual offenses they committed as 16 and 15 year olds, respectively. Defendants’ sentences (55 years to life) were vacated when the People conceded that defendants were entitled to resentencing in compliance with the California Supreme Court’s decision in People v. Caballero (2012) 55 Cal.4th 262 [juvenile’s sentence violates Eighth Amendment rights against cruel and unusual punishment because it amounts to a de facto life without the possibility of parole (LWOP) sentence for nonhomicide crimes] (Caballero).

A jury found Fredrick Cato guilty of assault by means likely to produce great bodily injury and found true the allegation that he personally inflicted great bodily injury upon the victim. The jury also convicted him of battery with serious bodily injury with an infliction of great bodily injury. After Cato waived a jury trial, the court found true two prior strike conviction allegations, as well as two serious felony priors (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)). The court denied Cato's request to strike a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and found him statutorily ineligible for probation. The court sentenced Cato to 25 years to life on count 1, plus a consecutive sentence of three years for the great bodily injury enhancement. The court stayed the five-year terms for each of the two serious felony priors pursuant to section 667, subdivision (a)(1), and

Defendant Daniel Salazar lewdly touched two young victims, when one victim was about five or six years old, and the other victim was about seven or eight. He complains that the victims could not provide adequate details pinpointing the time of the abuse. First, Salazar claims that his right to due process was violated because he was required to defend against charges that occurred sometime within a three-year period for each victim, arguing that that period is too long to reasonably permit him to defend against the allegations. Second, Salazar claims the trial court erred in permitting amendment of the information after the close of the prosecution's case-in-chief to extend the period during which the crimes occurred. Finally, he claims he was entitled to acquittal because the evidence at trial did not show crimes within the period of time alleged in the information.

This appeal arises from a dispute between neighbors about obstruction of a view by untrimmed trees. A recorded Declaration of Restrictions (DOR) requires property owners to trim their trees if the trees adversely impact the view from other lots within the residential project. We find that the DOR is sufficiently clear to be enforceable, but affirm the court's ruling denying relief because the parties have unclean hands in this case in equity. We reverse the trial court's award of attorney fees to the defendants, Gerald J. Puda and April S. Puda (collectively, the Pudas).

Appointed counsel for defendant Khanh Q. Le filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

A jury convicted defendant Tremaine Anthony Ellis of discharging a firearm with gross negligence and making criminal threats. The trial court placed him on probation for five years with various terms and conditions, including that defendant obtain permission from his probation officer before being absent from his residence for 48 hours. The trial court also issued protective orders requiring defendant to stay away from the victim and two other witnesses.

Defendant Sidney Scott Hubbard, a three strikes prisoner who was serving an indeterminate life sentence, successfully filed a petition for resentencing under Proposition 36. (Pen. Code, § 1170.126.) On appeal, he contends the trial court erred in resentencing him because it improperly refused to consider all aspects of his sentence, including exercising its discretion under section 1385. Defendant further argues we should remand the matter for consideration of concurrent sentences and the application of section 654. We will vacate the sentence and remand the matter to the trial court for resentencing.

A jury credited evidence that defendant Branden Matthew Gagnon staged his longtime partner’s attempted “suicide” by hanging, and committed other crimes against her. The jury found him guilty of most of the counts charged against him. The trial court sentenced defendant to prison for 11 years, and defendant timely filed this appeal.
On appeal, defendant contends: (1) count 9 (false imprisonment by violence) was included within count 8 (kidnapping) and must be vacated and dismissed; (2) the jury should have been instructed on false imprisonment as a lesser included offense of the kidnapping charged in count 8; (3) the trial court should not have permitted expert testimony about intimate partner battering; and (4) the trial court should not have imposed consecutive sentences for two counts of domestic violence.

Sykohn and Veronica Sayabath appeal following the dismissal of their suit for failure to bring it to trial within five years. (Code Civ. Proc., § 583.310.) They contend that because they did not name Sand Canyon Corporation as a defendant until they filed their first amended complaint, the five-year period continues to run as to Sand Canyon. Defendants counter that the Sayabath’s appellate contention lacks merit because the original complaint named Sand Canyon as a defendant under its former name, Option One Mortgage Corporation. We will affirm the judgment.