Justia California Court of Appeals Opinion Summaries

Petitioner William Avignone, at the time of this appeal, was in custody awaiting trial on charges of multiple counts of grand theft of personal property and fraud in connection with the offer, purchase, or sale of security. As part of a plea deal, Avignone pled guilty to three counts of fraud and two counts of grand theft while the prosecution dismissed the remaining counts. The trial court sentenced him to five years four months to be served in the custody of the sheriff. Before December 2017, he had been out on bail for four years. During that time, he made all court appearances and did not engage in criminal activity. Avignone appealed his sentence, arguing, among other things, the court abused its discretion in denying probation. The Court of Appeal rejected that contention, but allowed Avignone to withdraw his guilty plea. He did, and the superior court held a bail review hearing. After multiple hearings, the court increased Avignone's bail to $300,000. Avignone appealed, arguing the court abused its discretion in increasing his bail and setting it at an amount that violated In re Humphrey, 19 Cal.App.5th 1006 (2018), the Eighth Amendment of the United States Constitution, and article 1, section 12 of the California Constitution. To this point the Court of Appeal agreed that the sentencing court abused its discretion. As such, the court vacated the superior court's bail determination, and directed reconsideration of the amount of bail. View "In re Avignone" on Justia Law

Petitioner Peyman Heidary (Heidary) allegedly owned and oversaw a network of medical clinics to generate fraudulent billings to workers’ compensation and insurance carriers. A non-attorney, he also allegedly controlled the day-to-day operations of various law firms, including California Injury Lawyers (collectively, the law firm.). He allegedly controlled or directed hiring and firing, legal decision making, and income flow to and from the law firm. Codefendants (and petitioners in a related writ case discussed below) Abramowitz, a lawyer, and Solis allegedly assisted Heidary in these operations. Under the alleged fraud scheme, injured workers appeared at the law firm, which would fill out boilerplate paperwork and, on Heidary’s order, direct the workers to one of his clinics to begin treatment. Each provider would fill out a “ ‘super bill,’ ” describing services rendered, which would then go to support staff to review compliance with Heidary’s orders. They would forward the superbill to a medical billing company. Those companies would generate a form to start the claim process. The billing companies contracted with each provider to bill for services, on Heidary’s order, including sometimes by forgery. Payment came from two sources: workers’ compensation insurers and third-party accounts-receivable buyers. The defendants were indicted by grand jury on conspiracy, making false or fraudulent claims for payment of health care benefits, knowingly making false and fraudulent material representations for payment of workers' compensation, money laundering, forgery, and unlicensed practice of medicine. In Petitioner challenged challenges the trial court’s denial of his motion to set aside the indictment pursuant to Penal Code section 995(a)(1)(B). Finding no reason to disturb the indictment, the Court of Appeal denied the petition. View "Heidary v. Superior Court" on Justia Law

Rudolfo Nuno hit a person with his car, causing serious injuries. He drove a few blocks away and called 911 to report the incident. He was later charged with assault with a deadly weapon, battery with serious bodily injury, making a criminal threat, and felony hit-and-run. The jury convicted him only of hit-and-run and acquitted him of the remaining charges. The court sentenced him to a middle term of two years after finding him presumptively ineligible for probation under Penal Code section 1203 (e)(2) as a person "who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he . . . has been convicted." Nuno argued on appeal the evidence presented at trial was insufficient to support hit-and-run because he called for assistance soon after the incident. He also claimed the trial court erred at sentencing in finding him presumptively ineligible for probation and not finding this an "unusual case[]" entitling him to probation "in the interests of justice." While the Court of Appeal determined there was sufficient evidence to support Nuno’s conviction, it remanded for resentencing because the court erroneously believed Nuno to be presumptively ineligible for probation. View "California v. Nuno" on Justia Law

Pedro Rodriguez met Rebecca on an online dating application when he was 41 and she was 16 years old. Rodriguez arranged an in-person meeting with Rebecca a few weeks later and, on numerous occasions over the next several months, engaged in various sexual acts with her in hotel rooms he had rented. A jury convicted Rodriguez of 11 offenses involving unlawful sexual conduct with a minor, one count of burglary and one count of attempting to dissuade a witness from reporting a crime. Rodriguez contended on appeal there was insufficient evidence to support the conviction for burglary because Penal Code section 459 required an invasion of a possessory interest in the subject room or building and, much like the lessee of an apartment, he had an unconditional possessory interest in the hotel room he rented. He argued the trial court should have either dismissed the charge or provided the jury with a pinpoint instruction regarding the significance of any such possessory interest. To the extent the Court of Appeal concluded there was a relevant distinction between a possessory interest in the hotel room and a homeowner or lessee's possessory interest in a home or apartment, Rodriguez argued the result would be a violation of his constitutional right to equal protection. In addition, Rodriguez contended there was insufficient evidence to support the conviction for attempting to dissuade a witness pursuant to Penal Code section 136.1 (b)(1) because any attempt he made to dissuade Rebecca occurred only after she made an initial report to the police. After review, the Court of Appeal concluded there was sufficient evidence to support both of Rodriguez' convictions, the jury did not err in refusing to dismiss the burglary charge or its instruction to the jury concerning burglary, and that the equal protection clause was not applicable because individuals renting hotel rooms are not similarly situated to those owning or leasing a residence. View "California v. Rodriguez" on Justia Law

A jury convicted James Webb of first degree murder, and found true the special allegation of using a knife in the commission of the offense. On appeal, Webb argued the trial court had a sua sponte duty to instruct the jury on the defense of duress (CALCRIM No. 3402). He also claimed CALCRIM No. 548 erroneously instructed the jury it did not need to agree on the theory of murder when the two theories corresponded to different degrees. The Court of Appeal found after review of the record that "Webb repeatedly lied, kept changing his story, and could not paint a coherent picture linking any threats to his admitted conduct. ... even if some jury could believe he acted under duress, it is clear this jury didn't. Webb consistently denied carrying a knife or having anything to do with the actual killing. By finding that he had personally used a knife during the commission of the crime, the jury rejected his versions of events, including any possible theory of duress." Therefore, the Court determined the trial court did not have a duty to instruct the jury on the defense of duress. The Court also determined that to the extent CALCRIM No. 548 could be read to suggest unanimity was not required as to the degree of murder, the error was harmless beyond a reasonable doubt. Remand was required solely for a restitution hearing, but in all other respects the Court affirmed the judgment. View "California v. Webb" on Justia Law

Defendant Tom Phung was 17 years old when he and fellow Tiny Rascal Gang (TRG) members, riding in about five cars, chased a fleeing vehicle containing eight rival gang members. A TRG member two cars ahead shot and killed one rival and seriously wounded a second. A jury convicted defendant, as an aider and abettor, of the lesser included crime of second degree murder (count 1), attempted murder (count 2), shooting at an occupied motor vehicle (count 3), and street terrorism (count 4). With respect to the first three crimes, the jury found true the allegations that defendant committed them for the benefit of a criminal street gang, and vicariously discharged a firearm causing great bodily injury and death. Defendant was sentenced to an aggregate state prison term of 40 years to life. While defendant's appeal was pending, the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016, which went into effect in November 2016. In March 2017, the Court of Appeal issued an opinion affirming the judgment against defendant. Defendant petitioned for review before the California Supreme Court. While that petition was pending, another panel of the Court of Appeal issued an opinion holding Proposition 57 operated retroactively under the rule announced in In re Estrada, 63 Cal.2d 740 (1965). Defendant’s counsel, however, was unaware of the filing of the concurrent appellate opinion, and did not raise the issue before the California Supreme Court. The Supreme Court denied review, following which the Court of Appeal issued a remittitur. Defendant moved to recall the remittitur on the ground that his counsel had provided ineffective assistance of counsel in failing to raise the retroactivity of Proposition 57 to his own case. Defendant’s counsel admitted the error. The motion was granted, the remittitur recalled, and supplemental briefing was ordered. The Court of Appeal ultimately affirmed defendant's conviction, but concluded Proposition 57 applied retroactively to defendant. Therefore, the Court reversed and remanded this case for a transfer hearing and resentencing. View "California v. Phung" on Justia Law

In 2014, Lamar Canady was shot to death in broad daylight in the Oak Park neighborhood of San Diego. After months of investigation by police, with the assistance of the Federal Bureau of Investigation (FBI) and authorities in Kansas City, Missouri, defendants Peter Johnson and Ian Guthrie were arrested and eventually charged with murder (count 1) and assault with a semiautomatic firearm (count 2) for Canady's death. The information also alleged that Johnson intentionally and personally discharged a firearm during the commission of the murder, causing death, and that he had a strike prior and serious felony prior stemming from a 1998 murder conviction in Jamaica. The information alleged Guthrie had a strike prior and serious felony prior stemming from a 1997 manslaughter conviction in New York. The investigation into Canady's death revealed Johnson and Guthrie were participants in a conspiracy to kill Canady led by drug kingpin Omar Grant. After a joint trial but with separate juries, Johnson and Guthrie were both convicted of first degree murder. Johnson's jury also found true the allegation that Johnson personally discharged a firearm resulting in Canady's death. Johnson and Guthrie appealed their convictions on various grounds. Guthrie asserted: (1) the trial court erred by denying his motion to suppress statements made to police after he invoked his right to counsel during his postarrest interview; (2) insufficient evidence supported the prosecution's theory that he aided and abetted Canady's murder; (3) the trial court abused its discretion by admitting into evidence a rap song recorded by Canady prior to his death; (4) that even if the errors individually do not require reversal, cumulatively they do; and (5) that the trial court abused its discretion by denying the defendants' motion to continue the sentencing hearing to allow additional discovery concerning police use of a cell site simulator to locate him. Johnson asserted the trial court erred by failing to instruct on the lesser included offenses of second degree murder and voluntary manslaughter, and that the use of his Jamaican conviction as a prior strike and prior serious felony ran afoul of his right to equal protection under the California and United States Constitutions. Both men also contended the trial court abused its discretion by admitting into evidence testimony and documents concerning their illegal entry into the United States. The Court of Appeal concluded these claims lacked merit, and accordingly affirmed both men's convictions. View "California v. Johnson" on Justia Law

The superior court denied Jackson’s motion to dismiss an indictment issued by a grand jury charging him with special circumstances murder, kidnapping, and rape. The motion, based on Penal Code section 9951 and on nonstatutory grounds, alleged that the deputy district attorney’s excusal of a juror for cause, in the presence of the remaining grand jurors, substantially impaired the independence and impartiality of the grand jury, deprived Jackson of a substantial right, and violated his right to due process. The California Supreme Court is currently considering whether a prosecutor’s improper dismissal of a grand juror denied a defendant a “substantial right.” The court of appeal concluded that while the prosecutor’s dismissal of the grand juror was improper and violated section 939.5, it did not rise to the level of a violation of due process rights. The record shows that, if anything, the excused grand juror was arguably unfavorable to the defense, since he had met the victim several times and had read newspaper accounts of her rape and murder. While the prosecutor excused the prospective juror in the presence of the other grand jurors, he did so with the stated objective—communicated to the entire grand jury—of ensuring a fair and impartial proceeding: “ View "Jackson v. Superior Court" on Justia Law

Defendant Ryan Booth was convicted of: five counts of sexual penetration of a child 10 years old or younger (counts 2, 3, 5, 7, & 10); three counts of oral copulation of a child 10 years old or younger (counts 1, 4, & 6); five counts of preparing pornographic images of a minor (counts 8, 11, 12, 13, & 14); one count of possessing child pornography (count 9); and one count of sexual exploitation of a child (count 15). As to count 9, the jury found it to be true that defendant possessed more than 600 images and 10 or more images involving a prepubescent minor or a minor under 12 years old. Defendant was sentenced to a determinant term of 8 years 4 months, plus an indeterminate term of 120 years to life. Defendant raised two issues on appeal: (1) the trial court erroneously believed it had no discretion to run the section 288.7 (sexual penetration and oral copulation) sentences concurrently; and (2) section 311.4 did not apply to what he did. Finding no reversible error, the Court of Appeals affirmed the trial court's judgment. View "California v. Booth" on Justia Law

The Court of Appeal affirmed an order granting the petition of the Public Guardian of the County of San Luis Obispo for reappointment as the conservator of S.A. In this case, the jury found beyond a reasonable doubt that S.A. continued to be gravely disabled as a result of a mental disorder. The court held that the Public Guardian was authorized to offer S.A.'s records to prove the historical course of her mental disorder, and the manner of production and use of the records did not violate S.A.'s statutory or constitutional rights. View "Conservatorship of S.A." on Justia Law