CA Unpub Decisions

Appellants James Holliday, Steven Tratner, and Karen Tratner appeal from a judgment entered following the court's order sustaining a demurrer to their first amended complaint without leave to amend. The court concluded their various claims were time-barred. We agree and affirm the judgment. Appellants fail to show it is reasonably possible that they could amend the complaint to avoid the statutes of limitations.

A jury convicted Andy J. Borgerding of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)), obtaining personal identifying information with intent to defraud (Pen. Code, § 530.5, subd. (c)(1)), and possession of burglary tools (Pen. Code, § 466). He separately pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He also admitted having a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and three prior prison commitment convictions (Pen. Code, § 667.5, subd. (b)). The court sentenced him to an aggregate term of seven years in prison.
Borgerding appeals, contending we must overturn his convictions because the court improperly admitted evidence of past misconduct.

A jury convicted Donald Ray Lewis of first degree murder (Pen. Code, §187, subd. (a)). It also found true that, during the commission of the offense, Lewis discharged a firearm within the meaning of section 12022.53, subdivision (d).
The court sentenced Lewis to prison for 50 years to life.
Lewis appeals, contending the court improperly instructed the jury under CALCRIM No. 625 because that instruction did not allow the jury to consider evidence of Lewis's voluntary intoxication to support his defense of imperfect self-defense. We reject this contention. Whether CALCRIM No. 625 improperly precludes a jury from considering voluntary intoxication with respect to imperfect self-defense is currently before the California Supreme Court in People v. Soto (2016) 248 Cal.App.4th 884, review granted October 12, 2016, S236164 (Soto). Assuming without deciding that CALCRIM No. 625 is incorrect as Lewis asserts, on this record, any such error is harmless. Thus, we affirm Lewis's

A jury convicted Khen Sisala of residential burglary (Pen. Code, §§ 459, 460, subd. (a)) after he was caught walking out of an apartment he broke into. He argues his conviction must be reversed on four grounds: (1) the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) when it failed to disclose recordings from police officers' body-worn cameras before the preliminary hearing; (2) the police failed to preserve evidence regarding his psychological state or intoxication that might have been exculpatory on the issue of his intent to steal; (3) by giving an unmodified version of the voluntary intoxication instruction with an instruction on consciousness of guilt (CALCRIM No. 362), the court erroneously limited the jury from considering whether intoxication prevented Sisala from knowingly making false statements; and (4) the court should have instructed the jury that trespass was a lesser included offense to burglary. We reject each contention and affirm.

A jury found Frederick Justine Weekly guilty of first degree murder (Pen. Code, § 187, subd. (a)) and that Weekly personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced Weekly to a prison term of 50 years to life, consisting of a 25-year-to-life term for the murder and a 25-year-to-life term for the firearm enhancement.
We originally issued an opinion in this matter on September 29, 2017. On January 10, 2018, our Supreme Court granted Weekly's petition for review and transferred this matter to us with directions that we vacate our September 29, 2017 decision and "reconsider the cause in light of S.B. 620, chapter 682, amending Penal Code section 12022.53, subdivision (h)" which was enacted by the Legislature after we issued our September 20, 2017 opinion.

Defendant Danny Lee Clark was arrested after driving without a license while carrying 15.1 grams of methamphetamine in the folded cuff of his pant leg. A jury convicted him of possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). After the court found several prior conviction allegations true, including a strike prior, it sentenced him to an aggregate term of 13 years in state prison.
Prior to sentencing, the court denied defendant’s motion for new trial in which he argued that the verdict was contrary to the evidence and that the prosecution belatedly disclosed misleading information about its narcotics expert thereby violating his due process rights. Raising the same arguments on appeal, defendant contends the court abused its discretion in denying his motion for new trial.

Defendant Danya Malene Walrod was found guilty by a jury of charges stemming from her fraudulent application for government benefits that required her to have care and custody of her son in order to collect. Defendant contends the trial court erred in refusing her requests to (1) admit a school emergency contact form into evidence at trial, and (2) allow a school administrator to testify. Disagreeing, we will affirm.

A jury convicted defendant Ricky Sims of the willful, deliberate, and premeditated attempted murder of Ronald Curtis and one count of making a criminal threat. The jury found that defendant committed attempted murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The trial court found that defendant was previously convicted of a serious felony. Defendant received an aggregate prison sentence of 46 years, plus a consecutive term of 14 years to life, with 160 days of credit

A jury convicted defendant Ricky Sims of the willful, deliberate, and premeditated attempted murder of Ronald Curtis and one count of making a criminal threat. The jury found that defendant committed attempted murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The trial court found that defendant was previously convicted of a serious felony. Defendant received an aggregate prison sentence of 46 years, plus a consecutive term of 14 years to life, with 160 days of credit

Petitioner Oliver Thomas, Jr. III was convicted of special circumstance felony murder as an aider and abettor, and sentenced to life without the possibility of parole (LWOP). We affirmed the judgment of conviction in a nonpublished opinion, People v. Thomas (Sept. 28, 1995, B083574) [nonpub. opn.]. Thereafter, People v. Banks (2015) 61 Cal.4th 788 (Banks) held that an LWOP sentence based on liability as an aider and abettor of a felony murder is constitutionally permissible only if the aider and abettor was a “major participant” in the crime and acted with “reckless indifference to human life,” as set forth in the special circumstance statute, Penal Code section 190.2, subdivision (d). Petitioner filed a petition for writ of habeas corpus in this court, relying on Banks, seeking relief from the special circumstance finding that supports his LWOP sentence. We conclude there is insufficient evidence to support the special circumstance finding. The petition is granted.

In 2000, a jury convicted defendant and appellant Willie Fred Stephens, Sr., of possession of a firearm by a felon (count 1; former Pen. Code, § 12021) and possession of a controlled substance (count 2; Health & Saf. Code, § 11350, subd. (a)). The jury also found defendant had two prior strike convictions. Defendant received a 25 years-to-life term for the felon in possession of a firearm conviction and a concurrent 25 years to life for the drug conviction.

Defendant Luis Jorge Flores, Jr. was convicted by a jury of attempted carjacking, a felony. (Pen. Code, §§ 215, subd. (a), 664.) The jury further found defendant personally used a deadly weapon, a knife, in the commission of the offense. (§ 12022, subd. (b)(1).) Defendant admitted a prior serious felony conviction allegation for purposes of section 667, subdivision (a)(1), and the Three Strikes law as set forth in sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (e). He also admitted a section 667.5, subdivision (b) prior separate prison term allegation. The trial court imposed a 12-year state prison sentence.
On appeal, defendant argues the trial court’s denial of his Romero motion to dismiss his prior strike conviction was an abuse of discretion.

A jury convicted Diamond Vargas (defendant) of one count of assault with a semiautomatic weapon as to victim Al Dawoud (Pen. Code, § 245, subd. (b) (count 3)), but deadlocked as to the charged offenses against five other victims. The jury also found true the allegation that she personally used a semiautomatic firearm to commit the offense. We reject defendant’s claim of instructional error, but remand for the limited purpose of allowing the trial court to consider whether to exercise its discretion under section 12022.5, subdivision (c), to strike or dismiss the firearm enhancement in furtherance of justice (§ 1385).

Fred Stewart appeals from a civil harassment order that restrained him from harassing, contacting, or going near Lee Wallach for one year. The order has already expired, however, and we dismiss the appeal as moot.