CA Unpub Decisions

A jury found defendant Jerry Almerida Banaag guilty of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and five counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court sentenced him to an aggregate term of 46 years to life in prison.

Elias Garcia, Roman Hooker, Christopher Merrill, and Calvin Holmes attempted to rob a marijuana dealer, Donald Kirby, in his apartment. During the attempt, Garcia shot and killed Kirby. A jury found Garcia and Hooker guilty of first degree felony murder and attempted robbery, and it found true a felony-murder special circumstance. Merrill and Holmes testified against Garcia and Hooker after they pleaded guilty to reduced chargers.

Johnny Lee Briggs appeals a judgment of conviction entered after he expressly waived his right to a preliminary hearing and his constitutional rights, and pleaded nolo contendere to felony battery by a prisoner on a non-prisoner. (Pen. Code, § 4501.5.) Pursuant to a plea agreement, the trial court sentenced Briggs to a three-year consecutive term, ordered victim restitution, and imposed a $900 restitution fine, a $900 parole revocation restitution fine (suspended), a $40 court security assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)
We appointed counsel to represent Briggs in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues.

A jury found Karl Katsumi Ogura guilty of first degree murder (Pen. Code, § 187, subd. (a) ) and found a gang enhancement allegation to be true (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Ogura to 25 years to life plus 10 years for the gang enhancement. The court imposed restitution and parole revocation fines of $240. (§§ 1202.4, 1202.45.)
On appeal we reversed Ogura’s conviction for first degree murder. We gave the People the option of retrying Ogura for first degree murder, or if the People do not so elect within 30 days of the remittitur, the offense shall be reduced to second degree. We also reduced the restitution fine from $240 to $200. (People v. Ogura (Nov. 13, 2014, B239122) [nonpub. opn.].) The offense was reduced to second degree murder.

Edwin G. (Father) appeals from an August 3, 2017 order of the juvenile court made pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (j), detaining his 12 year old son, F.G., and 11 year old daughter, K.G., from him and placing them with their mother, S.G. (Mother). Father contends that the juvenile court should have dismissed the petition based on insufficient evidence.

Defendant and appellant Manuel David Espinoza appeals from the denial of his motion for a finding of factual innocence pursuant to Penal Code section 851.8. We affirm the judgment.

In an information filed by the Los Angeles County District Attorney’s Office, defendant and appellant Michael Andrew Age was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
Defendant pleaded not guilty, and on February 21, 2017, the matter proceeded to trial. On February 27, 2017, a mistrial was declared.
Defendant’s second trial began on April 27, 2017. On May 2, 2017, the jury returned a guilty verdict. Defendant was sentenced to a total of two years in state prison, the low term on the assault count. Various fines and assessment were imposed. Defendant received 466 days of presentence credits.
This timely appeal ensued. Defendant contends that the evidence presented at trial was insufficient to support his conviction for assault with a deadly weapon.
We affirm.

After pseudonymous Internet commenters posted on social media that Jeff Nelson practices “bestiality and paedophilia [sic] and incest,” has “mouth sores,” and sells food that causes “mouth herpes,” he and his company VegSource Interactive (collectively, Nelson) sued for defamation. To discover the identity of the commenters, one of whom posted under the pseudonym Chantelle Robin, Nelson served subpoenas on Google, Tumblr, YouTube, and Twitter, requesting potentially identifying information, including the commenters’ IP addresses. Before those companies responded to the subpoenas, however, they notified Robin, who filed a motion to quash the subpoenas. The trial court granted the motion to quash.
Nelson filed a petition for writ of mandate seeking to compel the trial court to vacate its order granting the motion to quash and to enter a new order denying the motion.

Appellant, Harry Williams, Jr., argues the trial court erred in issuing a civil harassment restraining order (CHRO) under Code of Civil Procedure section 527.6, subdivision (b), requiring him to avoid contact with respondent, his neighbor Peipei Yuan, among other restrictions. He argues the court abused its discretion in issuing the order, which he claims was not supported by substantial evidence. We disagree and affirm.

Appellant Brandy V. (mother) contends the juvenile court abused its discretion in issuing a custody order upon termination of jurisdiction that denied her visitation with twins A.V. and Alexander V. (Alexander) (born Dec. 2004). We affirm.

Luis Fernandez (Fernandez) appeals from a judgment sentencing him to three years in state prison for willfully inflicting a corporal injury on a cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a) ). Fernandez complains that his due process rights under the Fourteenth Amendment to the United States Constitution were violated when police failed to preserve a digital audio recording of the victim’s statements. We disagree. Although the recording may have been “potentially useful” to Fernandez’s defense, we find, pursuant to Arizona v. Youngblood (1988) 488 U.S. 51, 58 (Youngblood), that there was no due process violation because substantial evidence supports the trial court’s finding that the police did not act in bad faith.

Appellant Javier Sanchez appeals from a 46 year prison sentence following his convictions on one count of continuous sexual abuse of a child between March 1, 2015 and August 31, 2015, three counts of oral copulation of the same victim during that period, and three counts of sexual abuse of a child between September 1, 2015 and September 23, 2015. He contends it was error to charge him in the information with continuous sexual abuse and the three counts of oral copulation on the same victim during the same period, without charging the counts in the alternative. He contends the convictions on the separate counts should be vacated. Respondent concedes the charging error, but argues that the trial court has discretion to vacate either the continuous sexual abuse count or the three separate oral copulation counts. Respondent requests that this court remand the matter for resentencing. For the reasons set forth below, we agree with respondent.

Defendant Christine Anne Rodin, a bipolar and schizophrenic methamphetamine addict, pled no contest to robbery after stealing $85 from her father and biting his wrist. Though the court granted probation and sent defendant to a yearlong, residential, mental health treatment program, she soon violated probation with four positive drug tests. She now appeals from the trial court’s revocation of probation and execution of the previously imposed prison sentence. Defendant contends the court abused its discretion by terminating probation without considering other treatment options first. We affirm.

Benjamin Pennington (appellant) was charged with human trafficking of a minor for a commercial sex act, three counts of pimping a minor 16 years of age or older, one count of unlawful sexual intercourse, one count of lewd act on a child, two counts of human trafficking of a minor for a commercial sex act by force, fear, or fraud, one count of unlawful sexual intercourse, one count of human trafficking, one count of pimping, and two counts of dissuading a witness (counts 13 & 14; § 136.1, subd. (b)(2)). As to counts 1 through 4, it was alleged, inter alia, that appellant would have to serve any sentence in state prison and was subject to enhancements because he was previously convicted of criminal threats a violent or serious felony (§§ 667, subds. (b)-(j), 667.5, 1170, 1170.12).