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Name: People v. McPike
Case #: A122030
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/26/2010

Appellant could not be convicted of both receiving stolen property and petty theft for the same property. Appellant and a codefendant were found in possession of credit cards, a cell phone, keys, and the purse of the victim. In an appeal from her conviction for misdemeanor petty theft and felony receiving stolen property, appellant argued that she could not be convicted of stealing and receiving the same property. Respondent argued that the dual convictions were proper because the allegations were based on different items of property. The appellate court rejected respondent's argument, finding that the cell phone and purse were…

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Name: People v. Sisuphan
Case #: A122351
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 01/29/2010

Penal Code section 512 does not provide a defense to embezzlement for those who return the property before charges are filed. Appellant, the supervising finance manager at a car dealership, was charged with embezzlement (Pen. Code, § 508) based on taking about $30K in cash and checks from the dealership's safe. Before criminal charges were filed, appellant admitted to his employer that he took the money with the intent to return it, and that the reason he took it was because he was trying to get a problematic employee who he supervised fired, but who the general manager had previously…

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Name: In re Miguel H.
Case #: B214864
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/12/2010

A school is a "public place" for the purpose of Penal Code section 594.1, subdivision (e)(1), which prohibits a person under the age of 18 years from possessing an aerosol container to deface a public place. The minor, accused of drawing graffiti on public school property, was removed from the classroom and his backpack was searched. Inside the backpack were shoe polish, spray paint, and an etching tool. A Welfare and Institutions Code section 602 petition was sustained after the juvenile court found that appellant possessed tools to graffiti, in violation of section 594.1, subdivision (e)(1). The appellate court rejected…

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Name: People v. Leal
Case #: B211365
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/23/2009

Convictions for rape and sexual penetration by artifice, pretense or concealment can be based on passive, as opposed to active, concealment. Appellant entered a residence through a window and had sexual with a woman who was sleeping next to her husband. The victim was extremely drunk and believed appellant was her husband. As a result of his acts, a jury convicted appellant of, inter alia, rape and sexual penetration by artifice. (Pen. Code, §§ 261, subd. (a)(5), 289, subd. (f).) Both of these statutes proscribe sex acts where the victim consents under the mistaken belief…

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Name: In re J. H.
Case #: B212635
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/03/2009
Subsequent History: rev. granted 1/20/10 (S179579)

An arson conviction requires proof of a malicious mental state despite the fact that it is a general intent crime. The minor and his friends were playing with firecrackers in the woods and caused a fire that burned five acres. The juvenile court found appellant committed arson despite specifically finding the minor had no intention of starting a fire. Appellant argued there was insufficient evidence to sustain the true finding. The court agreed because there was no evidence of malice. People v. Atkins (2001) 25 Cal.4th 76, did not do away with the…

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Name: People v. Smith
Case #: A118208
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 09/29/2000

Where store owner consents to taking of store's property, defendant still commits a robbery if he takes store property by means of force of fear from employees unaware of the consent. At appellant's robbery trial, the prosecution's theory was that the robbery was an "inside job," i.e. that it was set up by the store's owner to collect insurance proceeds. On appeal, Smith contended that based on this theory, there was no robbery as a matter of law because one who takes property with the owner's consent does not commit a theft crime. The appellate court rejected the argument, holding…

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Name: People v. Flores
Case #: F055859
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/17/2009

Battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5) is a necessarily included offense of battery by gassing (Pen. Code, § 4501.1). As a correctional officer was leaving appellant's cell, the officer heard appellant spit and felt spittle hit the back of his uniform. A jury convicted appellant of battery by gassing and battery by a prisoner on a non-prisoner based on this single act of spitting. The Court of Appeal accepted respondent’s concession that battery by a prisoner on a non-prisoner is a lesser included offense of battery by gassing. Applying the…

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Name: People v. Thorn
Case #: A121336
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 07/31/2009

Vehicle burglary from a car parked in the carport under an apartment building was first degree residential burglary. Thorn was observed getting in and out of a vehicle he did not own and was seen carrying a screwdriver. The vehicle was parked in a carport under an apartment building. Later, the owner of the vehicle reported that his car stereo had been removed. Thorn was arrested with the screwdriver on him and charged with first degree burglary. On appeal, Thorn contended that a carport is not part of an inhabited building and that the carport fell outside the ambit of…

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Name: People v. Ugalino
Case #: C055469
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/09/2009

Attempted robbery conviction reversed where victim had no ownership of or relationship to the targeted property. Appellant was convicted of, among other offenses, attempted robbery of Rider. On appeal, he argued that he could not be convicted of attempting to rob Rider, because the marijuana he was trying to steal belonged to Johnson. The appellate court agreed and reversed that count. The evidence established that appellant attempted to steal marijuana from Johnson, who was Rider's roommate. Rider did not have actual possession of the marijuana, and Johnson stored it in a locked safe in his…

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Name: People v. Magallanes
Case #: G040133
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/28/2009

There was sufficient evidence of carjacking where appellant stole a car as the victim was leaning into the back seat to put her child in the car seat. The victim was leaning into the back seat of her car, putting her child into his car seat, when she heard "a revving sound" and saw appellant trying to put the car in gear. The victim took the child out of the car, banged on the window, and yelled as appellant started the car and drove it away. On appeal, appellant challenged the denial of his motion for a judgment of acquittal…

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