CA Unpub Decisions

Defendant Jeremy McLaughlin kidnapped, orally copulated, and raped his victim. Sentenced to a determinate term of six years eight months, with a consecutive indeterminate term of 30 years to life, defendant appeals. He argues: (1) the evidence established only one kidnapping even though he was convicted of two counts of kidnapping, (2) the evidence was insufficient to support the second kidnapping conviction, (3) defendant was denied his right to be present when the court reporter read back testimony to the jury, (4) the evidence was insufficient to support the oral copulation and rape convictions, (5) the cumulative effect of errors was prejudicial, (6) consecutive indeterminate terms of 15 years to life for each of the two sexual offenses constituted cruel and unusual punishment, and (7) the court abused its discretion in imposing fully consecutive indeterminate terms for the sexual offenses.

After receiving $150,000 from a real estate transaction in probate that should have gone to satisfy a lien on the property, defendant Michael Borkowski, who appears individually and as executor of the probate estate, believes he need not satisfy the lien. The trial court found him liable, and we affirm.

Jeremy Carlin filed an unlawful detainer complaint to recover possession of certain real property from Gabriel Ark-Majiyagbe. The trial court entered judgment in favor of Carlin. Ark-Majiyagbe subsequently filed a complaint to set aside the unlawful detainer judgment. The trial court sustained Carlin’s demurrer to Ark-Majiyagbe’s first amended complaint without leave to amend and entered judgment of dismissal.
Ark-Majiyagbe now contends the judgment must be set aside because the 60-day notice to quit that Carlin served on Ark-Majiyagbe did not comply with Code of Civil Procedure section 1161, and the notice failed to state that Ark-Majiyagbe could reclaim his personal property as required by Civil Code section 1946.1, subdivision (h).
We will affirm the judgment.

A person serving a term in state prison ordinarily may earn one day of “worktime credit” for each day he or she participates in a qualifying work or training program, making it possible to reduce the term of incarceration by up to 50 percent. (In re Pope (2010) 50 Cal.4th 777, 779.) Penal Code section 2933.1, however, limits such credit to 15 percent of the prison term for any person convicted of a qualifying violent felony, which under section 667.5, subdivision (c), incudes “[a]ny felony in which the defendant inflicts great bodily injury . . . which has been charged and proved as provided for in Section 12022.7.”

Y.J., a minor, appeals from the juvenile court’s January 18, 2017 order for out of home placement and a December 22, 2016 order that the probation department be the lead agency pursuant to Welfare and Institutions Code section 241.1.

The Los Angeles County Department of Children and Family Services (Department) and minor O.D. appeal the trial court’s order terminating jurisdiction over O.D. after the court returned custody of O.D. to mother in the state of Wisconsin. Appellants contend the juvenile court failed to appreciate the scope of its authority to retain jurisdiction even though O.D. and mother were no longer to remain in California. We agree, and reverse the order terminating jurisdiction.

Angel Moreno Cordero was convicted of sexual penetration by a foreign object (digital penetration) (Pen. Code, § 289, subd. (a)(1)(A) (count 1)), sexual battery by restraint (§ 243.4, subd. (a) (count 2)) and assault with intent to commit rape (§ 220, subd. (a)(1) (count 3)). The court sentenced Cordero to an aggregate state prison term of seven years four months: the middle term of six years on count 1, digital penetration, and a consecutive term of one year four months (one-third the middle term of four years) on count 3, assault with intent to commit rape. The court imposed and stayed pursuant to section 654 a middle term of three years on count 2, sexual battery by restraint. On appeal Cordero argues the sentence for assault with intent to commit rape should also have been stayed pursuant to section 654. We agree and remand the matter for resentencing, but otherwise affirm the judgment of conviction.

Nicole P., mother of John P., now 14 years old, appeals from the order of the juvenile court denying her petition under Welfare and Institutions Code section 388 seeking a home-of-parent order or, as discussed at the hearing on the petition, restoration of reunification services for an additional six months to allow her to reunify with John. Nicole contends the court incorrectly believed it lacked authority to order additional reunification services at a post-permanency plan review hearing when the parent has already received 18 months of services and, consequently, failed to properly exercise its discretion in considering the merits of her request. Because the trial court properly based its denial of the petition on John’s best interests, we affirm.

Franchisees SR El Centro FD, Inc.; SR Long Beach FD, Inc.; SR Palmdale FD, Inc.; SR Simi Valley FD, Inc., and SR Tracy FD, Inc., appeal from a preliminary injunction prohibiting them from using, displaying, and infringing upon the intellectual property of respondent franchisor Famous Dave’s of America, Inc., after the termination of their franchise agreements. Appellants argue the court misapplied the standard for issuance of a mandatory injunction, and abused its discretion in finding that respondent would succeed on the merits and in balancing the harms. We disagree and affirm.

Antonio Macedo-Ibarra appeals his conviction by jury of two counts of continuous sexual abuse of a victim under 14 years of age (counts 1 and 4; Pen. Code, §§ 288.5, subd. (a); 1203.066, subd. (a)(8)) and four counts of lewd conduct on a child 14 or 15 years old by a person at least 10 years older (counts 2, 3, 5 and 6; § 288, subd. (c)(1)). On counts 1 and 4, the jury found that appellant had substantial sexual conduct with the victim and there were multiple victims. (§ 667.61, subds. (b) & (e)(5).)

David Michael Velez appeals a judgment following his conviction for possession of a firearm in violation of a probation order. (Pen. Code, § 29815, subd. (a)), a felony. We conclude, among other things, that 1) substantial evidence supports the judgment, 2) the trial court did not abuse its discretion by admitting evidence about Velez’s prior gun possession crime, 3) the trial court did not err by denying his request to reduce the conviction to a misdemeanor, and 4) Velez has not shown that one of his probation conditions is overbroad or unconstitutional. We affirm.

A jury convicted Steven Talian of second degree murder after the body of Richard Michael Ramirez was found where Talian had placed it in a garbage container outside the apartment building where he lived. Talian argues the trial court erred by refusing to instruct the jury on self-defense theories, and the prosecutor committed misconduct in her closing arguments. We affirm.

Apolinar Lopez appeals his conviction by jury of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with great bodily injury findings (§ 12022.7, subd. (a)). The trial court sentenced appellant to 11 years state prison. Appellant contends that his conviction is not supported by substantial evidence and that trial counsel was ineffective in not presenting expert testimony on the reliability of eyewitness identification. We affirm.

A jury convicted Guy Carlson of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The People also proved Carlson had a prior conviction for a serious felony under sections 667, subdivision (a), and 1170.12. Carlson argues that the trial court erroneously excluded certain exculpatory hearsay evidence and that substantial evidence does not support the jury’s findings Carlson acted deliberately and with premeditation. With regard to his sentence, Carlson argues that the People failed to adequately allege he suffered a conviction for a serious felony and that the trial court mistakenly believed section 667, subdivision (c)(6), mandated a consecutive sentence on the conviction for possession of a firearm by a felon.