CA Unpub Decisions

Eloy Romero, Jr. (defendant) stands convicted, following a jury trial, of two counts of first degree murder, during the commission of which he personally used and intentionally discharged a firearm. The jury found true a multiple-murder special circumstance. In a bifurcated proceeding, defendant admitted having served two prior prison terms. He was sentenced to prison for two years plus life without the possibility of parole (LWOP) plus 50 years to life, and ordered to pay restitution, along with various fees, fines, and assessments. On appeal, we hold: (1) The trial court did not err by instructing on adoptive admissions; (2) Defendant is not entitled to reversal based on ineffective assistance of counsel; (3) The parole revocation restitution fine must be stricken; (4) Defendant is not entitled to a remand for the court to exercise its discretion whether to strike either firearm enhancement; and (5) The abstract of judgment contains clerical errors that must be corrected.

A jury found Nicholas Brimage guilty of unlawfully possessing a firearm and ammunition. In a separate bench trial, he was found to have suffered a prior strike conviction within the meaning of California’s Three Strikes law and to have served multiple prior prison terms. Consequently, the trial court imposed a nine-year prison sentence.
Brimage seeks review of the denial of a discovery motion made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). He also alleges instructional error and, with regard to the finding of a prior strike conviction, a violation of the Sixth Amendment to the United States Constitution. The latter claim is governed by People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which holds that sentencing courts cannot look beyond “facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea” to determine the nature of a prior conviction.

The juvenile court terminated petitioner, D.H.’s (Father), reunification services and set the Welfare and Institutions Code section 366.26 hearing. Father filed a petition for extraordinary writ contending insufficient evidence supports the juvenile court’s finding that return of B.G. (Minor), born in July 2016, to Father’s custody posed a substantial risk of detriment. The petition is denied.

L.H. (mother) appeals the juvenile court’s order terminating her parental rights over her daughter S.H., who was declared a dependent shortly after her birth and was just shy of her third birthday at the time of the order. Mother argues the juvenile court erred when it concluded the parental benefit exception to adoption did not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) We disagree and affirm.

Plaintiff and appellant, Noah B. Benton, the successor trustee of a trust which became irrevocable upon the death of the trustor (the Trust), petitioned the superior court to invalidate the Trust’s donative transfers to the trustor’s care custodian, defendant and respondent, Ashley Granados-Saenz (Ashley), on the ground the donative transfers were a product of Ashley’s fraud or undue influence. (Prob. Code, §§ 17200, 21380, subd. (a)(3).) The court granted Ashley’s motion for judgment on the pleadings (on the petition) without leave to amend. Benton appeals, and Ashley has not filed a respondent’s brief. We reverse with directions.

Defendant filed a motion pursuant to Penal Code section 1016.5 seeking to vacate his plea conviction based upon a purported lack of advisement of the immigration consequences of his plea. The court denied the motion. On appeal, defendant contends the court erred in denying the motion. We affirm.

A jury convicted defendant and appellant, Miguel Angel Gonzalez, of residential burglary (count 1; Pen. Code, § 459), two counts of petty theft (counts 2-3; § 488), and possession of stolen property (count 4; § 496, subd. (a)). Defendant admitted suffering a prior prison term (§ 667.5, subd. (b)), a prior serious felony (§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to an aggregate term of nine years of imprisonment.
On appeal, defendant contends the court erred in admitting the testimony of the victim of a 2014 residential burglary committed by defendant, for which he was convicted, for purposes of proving identity, intent, lack of mistake, and/or common plan pursuant to Evidence Code section 1101, subdivision (b). The People maintain the evidence was properly admitted on the issue of intent and harmless for any other purpose. We affirm.

Pursuant to a plea agreement, defendant and appellant, Michael James Rodriguez, pled no contest to possession of child pornography. (Count 1; Pen. Code, § 311.11, subd. (a).) In accordance with the plea agreement, the court sentenced defendant to three years of formal probation. On appeal, defendant contends a condition of his probation is unconstitutionally vague and overbroad. We affirm.

“At the evidentiary hearing on the order to show cause, Dr. Hua estimated that the victim died “long before 1:20 a.m.” Hua explained that his time of death estimation was based upon the deputy coroner making his observations at 5:03 a.m. The record reflects Gomes arrived at the crime scene at 5:03 a.m. and that he recorded the room temperature at 6:11 a.m. A police report reflecting that the people removing the victim’s body from the crime scene were at the crime scene from 6:57 a.m. to 7:13 a.m., which indicated Gomes observed the victim’s body between 5:03 a.m. and 6:57 a.m.”
Is modified to read as follows:
“At the evidentiary hearing on the order to show cause, Dr. Hua estimated that the victim died “long before 1:20 a.m.” Hua explained that his time of death estimation was based upon the paramedics’ observation of rigor at 2:20 a.m. and the deputy coroner’s observation of almost fixed lividity at 5:03 a.m.

“At the evidentiary hearing on the order to show cause, Dr. Hua estimated that the victim died “long before 1:20 a.m.” Hua explained that his time of death estimation was based upon the deputy coroner making his observations at 5:03 a.m. The record reflects Gomes arrived at the crime scene at 5:03 a.m. and that he recorded the room temperature at 6:11 a.m. A police report reflecting that the people removing the victim’s body from the crime scene were at the crime scene from 6:57 a.m. to 7:13 a.m., which indicated Gomes observed the victim’s body between 5:03 a.m. and 6:57 a.m.”
Is modified to read as follows:
“At the evidentiary hearing on the order to show cause, Dr. Hua estimated that the victim died “long before 1:20 a.m.” Hua explained that his time of death estimation was based upon the paramedics’ observation of rigor at 2:20 a.m. and the deputy coroner’s observation of almost fixed lividity at 5:03 a.m.

Defendant and appellant, Curtis Jackson, and an accomplice attempted to rob a medical marijuana dispensary. In the process, the dispensary’s security guard was shot dead. Defendant appeals from the judgment entered following jury convictions for murder (Pen. Code, § 187, subd. (a); count 1) and attempted robbery (§§ 664, 211; count 2). As to both counts, the jury also found true allegations that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)), and was a principal armed with a handgun (§ 12022, subd. (a)(1)). The trial court sentenced defendant to 50 years to life in state prison. Codefendant, Tomeise Michelle Ray (Ray), was also charged with murder and attempted robbery, but was acquitted.

Decedent died from electrocution in July 2010 after a metal ladder he was using to harvest grapefruit contacted a 12,000-volt electrical wire above a grove in Hemet, California. A jury attributed 80 percent fault for decedent's death to the owner of the power lines, Southern California Edison Company (SCE). The jury allocated 15 percent fault to Gold Grower Services, Inc. (Gold Grower), the entity that employed decedent, provided the ladders, and temporarily employed the individual who supervised the harvesters (Supervisor) on the date of the incident. The jury allocated 5 percent fault to S & R Farm Labor Contractor Inc., (S&R) after finding S&R employed Supervisor and partially controlled his activities along with Gold Grower on the day of the incident. The court entered judgment against SCE and S&R in favor of decedent's wife and minor children.

Decedent was electrocuted and died in July 2010 after a metal ladder he was using to harvest grapefruit contacted a 12,000-volt electrical wire owned by Southern California Edison Company (SCE) above a grove at Circle K-5 Citrus Ranch (Circle K-5) in Hemet, California. A jury attributed 80 percent fault for decedent's death to SCE. The court entered judgment against SCE in favor of decedent's wife and minor children for more than $3.5 million and in favor of decedent's brother, who witnessed the injury, for $200,000. We conclude the court properly instructed the jury regarding negligence per se and had jurisdiction to consider the general negligence claim. We also conclude there was substantial evidence to support the jury's allocation of fault. We, therefore, affirm the judgment.

CBL Data Recovery Technologies, Inc. (CBL) appeals an order denying its motion to set aside a default judgment entered in favor of Airs Aromatics, LLC (Airs). CBL argues the default judgment was void pursuant to sections 580, subdivision (a) and 585, subdivision (c) of the Code of Civil Procedure because the trial court awarded damages in excess of that demanded in the complaint. We agree and conclude the default judgment must be vacated.