CA Unpub Decisions

Appointed counsel for defendant Brandon Lee Herrick has filed an opening brief setting forth the facts of the case and asks 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 found defendant Devonta Bobby Graham guilty of second degree murder (Pen. Code, § 187, subd. (a)), two counts of robbery (§ 211), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true the allegations that he personally used and intentionally discharged a firearm proximately causing death. (§ 12022.53, subds. (b), (c) & (d).) The jury further found true the allegation that he personally used a firearm in the commission of the robbery. (§ 12022.53, subd. (b).) In a bifurcated proceeding, defendant admitted that he had suffered a prior serious felony conviction (§ 667, subd. (a)) for burglary (§ 459), which qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to an aggregate term of 90 years four months to life in state prison.

Defendant and appellant Lorie Jones (defendant) entered pleas of no contest to two charges in exchange for a sentence of probation and a suspended three-year prison term—a better deal than the one to which she initially agreed, which would have required her to serve two years in prison. After defendant was found to have violated the conditions of her probation, the trial court executed the suspended three-year prison term that was part of her agreed-upon sentence. We consider whether defendant can now challenge that prison sentence on the ground that the court should have imposed a two-year term pursuant to the original plea deal she agreed to modify.

Defendant and appellant Ezekiel Simon (defendant) appeals from the denial of his postjudgment motion to vacate an order for victim restitution. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. After defendant was notified of his counsel’s brief he filed his own supplemental brief, asserting that trial counsel should have challenged the restitution order on the ground that he was a minor when the crime was committed, and that appellate counsel rendered ineffective assistance by filing a Wende brief without researching the applicability of Civil Code sections 1556, 1557, and Family Code section 6500, relating to a minor’s capacity to enter into contracts.
Defendant was charged by information in count 1 with the murder of Kashmier James, in violation of Penal Code section 187, subdivision (a).

Bernard Files appeals the judgment entered following a jury trial in which he was convicted of three counts of arson in violation of Penal Code section 451, subdivision (d). In bifurcated proceedings the trial court found true the allegations that appellant had previously suffered a conviction for arson (§ 451.1, subd. (a)), he had suffered five prior serious felony convictions (§ 667, subd. (a)(1)), and he had served prior prison terms. (§ 667.5, subd. (b).) The trial court denied appellant’s Romero motion to dismiss his prior strike convictions, and imposed an aggregate sentence of 177 years to life in state prison.
Appellant contends insufficient evidence supports the arson conviction on count 4, requiring reversal. We agree and reverse the conviction on count 4.

Mike Ruiz appeals the judgment entered following a jury trial in which he was convicted of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1), carrying a loaded unregistered handgun (§ 25850, subd. (a); count 2), shooting at an occupied motor vehicle (§ 246; count 3), and assault with a semiautomatic firearm (§ 245, subd. (b); count 4). The jury found true the firearm enhancement allegations that appellant personally used and intentionally discharged a handgun. (§§ 12022.53, subds. (b) & (c), 12022.5, subds. (a), (d).) The trial court imposed a sentence of life in prison on count 1, plus 20 years for the firearm enhancement under section 12022.53, subdivision (c), and concurrent or stayed sentences on all other counts.
Appellant contends the trial court committed prejudicial error by allowing the prosecution to present testimony about appellant’s gang affiliation. We disagree and affirm the judgment of conviction.

After a court trial on March 12, 2010, Miguel Andrade was found not guilty by reason of insanity on various charges arising from an incident in which he threatened his landlord with a gun and poured gasoline on the sidewalk outside of the residence in which he was renting a room. The trial court ordered his commitment to a state hospital.
On September 12, 2016, Andrade filed a petition for restoration of sanity under Penal Code section 1026.2. The first trial on Andrade’s petition resulted in a mistrial when the jury could not reach a verdict. The parties then stipulated that the trial court could decide the petition based upon the record from the first trial. The court denied the petition in an oral ruling on March 14, 2017. Andrade filed a timely notice of appeal from the order denying his petition.

This is the second appeal arising out of a dispute involving a homeowner, plaintiff and appellant Richard Colyear, and his homeowners association, defendant and respondent Rolling Hills Community Association of Rancho Palos Verdes (HOA). After Colyear’s neighbor, Yu Ping Liu, attempted to invoke the HOA’s dispute resolution process to force another neighbor to trim trees, Colyear sued, alleging that two of the offending trees were actually on his property. He further asserted that the relevant tree-trimming covenant did not encumber his property and therefore that Liu and the HOA were wrongfully clouding his title by seeking to apply such an encumbrance. We previously affirmed the trial court’s dismissal of Colyear’s claims against Liu pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute.
The trial court also sustained demurrers filed by the HOA, its board, and the individual board members (collectively, respondents), twice granting leave to amend.

Appellant Kenneth Charles Owens appeals from the judgment of dismissal in favor of respondent Los Angeles County Metropolitan Transit Authority (MTA) following an order issuing a terminating sanction against appellant for discovery abuse. We affirm.

Defendant and appellant Robert Cavalier (defendant) appeals from the trial court’s order denying his petition for resentencing on the ground that he was ineligible for relief under Proposition 36. He contends that the trial court erred in finding facts that were not encompassed by the verdict in his underlying conviction, that substantial evidence did not support the court’s finding that he was armed with a deadly weapon during the commission of the offense, that the trial court erred in applying the preponderance of the evidence standard of proof rather than the reasonable doubt standard, that he was entitled to a jury on the issue of whether he was armed with a deadly weapon, that his life sentence is cruel and unusual, and that he was denied effective assistance of counsel. Although we conclude that the trial court should have applied a reasonable doubt standard of proof, we find the error harmless. As there is no merit to defendant’s remaining contentions, we affirm the ju

Defendants and appellants Brandon Dion Audinette (Audinette) and Xavier Gage Gaither (Gaither) appealed from judgments entered after they were convicted of conspiracy to murder, attempted murder, and shooting at an inhabited dwelling. Defendants asserted that the trial court erred in failing to give a sua sponte jury instruction on heat of passion, and that the court’s conspiracy instructions erroneously included a definition of implied malice murder. Gaither further argued that his sentence violated the Eighth Amendment to the United States Constitution, as well as article I, section 17, of the California Constitution, and he asked that we correct clerical error in the abstract of judgment. In our original opinion, filed March 29, 2017, we agreed that the jury instruction regarding implied malice murder was given in error, but found beyond a reasonable doubt that the error was harmless. We ordered the correction of clerical errors in both defendants’ abstracts of judgment.

Defendant Joseph Brooks Conkright appeals from a judgment of conviction after jury trial. Among other things, Conkright was found guilty of the involuntary manslaughter of his mother, Danae Conkright, and to have personally used an assault weapon in this crime under Penal Code section 12022.5, subdivision (b). He challenges the imposition of this personal use enhancement on multiple grounds, argues the prosecutor engaged in prejudicial misconduct in closing argument, and contends that in any event, we must remand this matter for resentencing in light of the recent amendment of section 12022.5 to give the trial court the opportunity to exercise its discretion to strike the firearm enhancement in the interest of justice. We agree that defendant is entitled to remand for resentencing, but otherwise affirm the judgment.

Sean Beard was convicted of several acts of domestic violence. The victim did not testify at trial. Instead, her statements to police officers and treating medical personnel were introduced. The jury also heard out-of-court statements of two prior victims of domestic violence by Beard. Beard argues three statements were improperly admitted as spontaneous declarations under Evidence Code section 1240, and two were testimonial in violation of the confrontation clause. He further argues the court erred in admitting certain statements in recorded jail calls he made to the current victim, the prosecutor misstated the law in closing argument, and the trial court impermissibly restricted defense counsel’s discussion of reasonable doubt in closing argument. We affirm.

Defendant Joseph Blacknell appealed from his conviction on 20 counts of criminal conduct arising from his association with a Richmond street gang. He challenged the sufficiency of the evidence and the admissibility of eyewitness, toolmark, and gang expert testimony. He asserted the trial court should have severed three of the counts related to a March 2009 killing from those related to a September 2009 crime spree. He also asserted his life sentence without parole, plus an additional 199 years eight months to life, was cruel and unusual, especially given that he was 18 years old at the time of the offenses. Except as to his conviction on count 22 (receipt of stolen property) and counts 3, 14, and 21 (street terrorism), we affirmed the judgment in an unpublished 2015 opinion.
The California Supreme Court granted review and deferred further action pending its decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).