CA Unpub Decisions

A jury convicted Beong Kwun Cho of voluntary manslaughter (Pen. Code, § 192, subd. (a); all further statutory references are to the Penal Code), and found true a sentence enhancement for personal use of a firearm (former § 12022.5, subd. (a)).
The court sentenced Cho to an aggregate term of 10 years, comprised of the midterm sentence of six years for the voluntary manslaughter, plus a consecutive midterm of four years for the section 12022.5, subdivision (a) firearm enhancement.
Cho asserts the court violated his constitutional rights to due process and equal protection by relying on improper and unsupported reasons to impose midterm sentences. Cho also argues a recent amendment to section 12022.5 applies retroactively. Under the amended statute, the sentencing court now has discretion to strike the section 12022.5, subdivision (a) firearm enhancement under section 1385, subdivision (a).

Brian Angel Merida pleaded guilty to attempted murder (Pen. Code. §§ 664, subd. (a), 187, subd. (a); all statutory citations are to the Penal Code) and active participation in a criminal street gang (§ 186.22, subd. (a)). He also admitted the attempted murder offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Merida appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). Our review of the record discloses no arguable issues. Merida waived his right to appeal in conjunction with his guilty plea. Accordingly, we dismiss the appeal.

At the conclusion of a review hearing held on January 31, 2018, pursuant to Welfare and Institutions Code section 366.21, subdivision (e), the juvenile court found E.R. (mother) made minimal progress toward alleviating and mitigating the causes necessitating the detention of her child, E.E., pursuant to section 300. The court terminated further reunification services to mother and set the case for a permanency planning hearing pursuant to section 366.26.
Mother filed an extraordinary writ seeking an immediate stay of the permanency planning hearing and the reinstatement of reunification services. Mother contends there was insufficient evidence the Fresno County Department of Social Services (department) provided her with adequate reunification services.

Ashley F. (mother) seeks an extraordinary writ from the juvenile court’s dispositional orders issued in January 2018 terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her now eight-month-old daughter, G.L. We conclude mother failed to raise a claim of juvenile court error and dismiss her petition as facially inadequate for review. (Cal. Rules of Court, rules 8.450 & 8.452.)

In this family law matter, appellant Robert Rodriquez (Robert) appeals from an order of the trial court directing him to pay respondent Leslie Rodriquez (Leslie) $1,273 per month in child support for their three children. Robert contends the trial court erred in its calculation of child support by (i) not allowing him to deduct asset depreciation in computing his business income, and (ii) deviating from statutory child support guidelines without an adequate evidentiary basis for doing so. Additionally, Robert argues that reversal is required because the trial court failed to address his request for an award of costs as sanctions. We disagree and find no reversible error or abuse of discretion has been shown. Accordingly, the order of the trial court is hereby affirmed.

Appellant Alberto Lizarraga was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1) and assault with a deadly weapon (Pen. Code, § 245, subd, (a)(1); count 2) for the stabbing of his cousin Armando Carrera. The jury also found true enhancements for great bodily injury (Pen. Code, § 12022.7, subd. (a)) and use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). At a subsequent bench trial, the court found appellant’s prior conviction allegation to be true. Appellant was sentenced to an aggregate term of 27 years in state prison as to count 1, with the sentence of 11 years as to count 2 stayed pending service of the sentence on count 1.
Appellant presents two claims on appeal. He claims that the trial court erred in denying his motion for a new jury panel based on comments from prospective jurors and appellant’s own disruptive outbursts made during voir dire, and that the prosecution presented insufficient evidence that appellant committed the stabb

On November 29, 2017, a felony complaint charged defendant and appellant Pedro Jose Ramos, Jr., with one count of receiving a stolen vehicle in violation of Penal Code section 496d, subdivision (a). The complaint also alleged that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
On December 8, 2017, defendant pled guilty to the charge as part of a negotiated plea agreement. On the same day and in accordance with the terms of the agreement, the court sentenced defendant to the midterm of two years in county jail, pursuant to Penal Code section 1170, subdivision (h), with one year to be served in custody and one year to be served on mandatory supervision.
On December 12, 2017, defendant filed his notice of appeal.

Defendant and appellant Victor Cristobal Toro was charged by a first amended felony complaint with possession of a firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1), count 1), possession of ammunition by a person prohibited from owning a firearm (Pen. Code, § 30305, subd. (a), count 2), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 3), possession of methamphetamine (Health & Saf. Code, § 11377, count 4), and possession of drug paraphernalia (Health & Saf. Code, § 11364, count 5). The amended complaint also alleged that defendant had suffered one prior strike conviction. (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).)
A trial court declared a doubt as to defendant’s mental competence pursuant to a motion by defense counsel. The court suspended the proceedings and appointed three doctors to conduct psychological evaluations of defendant.

In case No. FSB17001551, a complaint charged defendant and appellant Paul Quoc Nguyen with possession of ammunition after having been previously convicted of a felony under Penal Code section 30305, subdivision (a)(1), a felony (count 1); and possession of methamphetamine under Health and Safety Code section 11377, subdivision (a), a misdemeanor (count 2). The complaint also alleged that defendant had a serious felony conviction, section 422, which was a strike offense under section 1170.12, subdivision (c)(38).
In accordance with a negotiated plea agreement, defendant pled no contest to attempted possession of ammunition under sections 664 and 30305. Defendant also admitted that the prior strike conviction allegation was true. At the same time, defendant also admitted that his new conviction constituted a violation of a grant of probation in Case Number FSB1600152 (2016 possession for sale of methamphetamine under Health and Safety Code section 11378).

J.G. (Mother) has a long history of substance abuse and domestic violence, resulting in her severely beating her 20-month-old son. She was found guilty and incarcerated for the abuse, and her parental rights were terminated as to her son and another son born during her incarceration. Upon her release from custody, Mother returned to her lifestyle of substance abuse and domestic violence. She conceived again, giving birth to H.D., the minor at issue in this case. Mother continued to abuse drugs, resulting in Mother’s arrest for violating her parole and H.D. being detained from parental custody at age five months.
From detention through the contested jurisdictional/dispositional hearing, Mother and Robert D. (Father) engaged in substance abuse and domestic violence, and were both arrested. Only just prior to the dispositional hearing did Mother finally begin an outpatient substance abuse program.

A jury found defendant and appellant Ryan Patrick Flaherty guilty of unlawfully driving or taking a vehicle, with a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, count 1), and receiving, withholding, or concealing a stolen vehicle from its owner, with a prior vehicle theft conviction (Pen. Code, §§ 666.5, subd. (a), 496d, subd. (a), count 2). In a bifurcated proceeding, the trial court found true that defendant had served four prior prison terms (§ 667.5, subd. (b)) and that defendant had sustained one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 10 years in state prison.
Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 117

Plaintiff and appellant Wicked Deals, Inc. appeals from a judgment of dismissal in favor of defendants and respondents Grady Purtle and his company Ark Mobility, Inc. (Ark Mobility) after the trial court sustained without leave to amend defendants' demurrer to plaintiff's first amended complaint that sought to allege, among other causes of action, intentional misrepresentation and negligent misrepresentation against defendants. In part, defendants argued under Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85 (Lovejoy), plaintiff could not rely on the doctrine of indirect fraud: the rule that a plaintiff may assert a claim for misrepresentation a defendant makes to third parties if the defendant intends or has reason to expect the plaintiff would repeat and act on the representations. The trial court ruled the doctrine did not apply to plaintiff's claims.

The court sustained the demurer without leave to amend. The court found Municipal Code section 67.0101 is preempted by state law, relying on an express preemption provision (§ 116409, subd. (b)) and on City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875 (Watsonville), which found a similar municipal ordinance was preempted by the state statutory scheme.
On appeal, Kennedy contends the statutory preemption provision is inapplicable, and Watsonville was wrongly decided and did not address all of the relevant issues. We reject these contentions and affirm.

A jury convicted defendant Gerald Spence of torture, infliction of corporal injury on a cohabitant, assault with a deadly weapon, and making a criminal threat, and the trial court found true allegations that he had two prior serious felony convictions. The trial court sentenced him to a determinate term of 11 years, followed by a consecutive indeterminate term of 50 years to life. This court affirmed the judgment of the trial court in his first appeal. (People v. Spence (Oct. 7, 2016, C074941) [nonpub. opn.].) The trial court subsequently set the matter for resentencing on its own motion because it had not imposed sentence on certain counts before staying them. At the resentencing hearing, the trial court imposed sentence on those counts and then stayed them.