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Name: People v. Villegas
Case #: E027539
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/18/2001
Subsequent History: Rev. denied 12/12/01.

There was sufficient evidence to support a conviction for attempted first degree murder where appellant was angry at the victim from an earlier altercation between rival gangs, was carrying a loaded weapon with him, and yelled a gang name before he opened fire on the victim’s truck. Further, appellant fired six shots from a distance of 25 feet, and there was evidence of motive because the rival gangs were enemies. The evidence did not support either a heat of passion defense or a claim of unreasonable…

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Name: People v. Villegas
Case #: E027539
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/18/2001
Subsequent History: Rev. denied 12/12/01.

There was sufficient evidence of mayhem where appellant fired a weapon at close range into the victim, resulting in the victim’s paralysis. Appellant’s "awareness" that the victim would be paralyzed was…

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Name: People v. Franz
Case #: C034462
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/10/2001
Subsequent History: Rehg. den. 5/24/01; Rev. den. 8/22/01

The court agreed that Penal Code section 422 (terrorist threat) requires that the threat be "made verbally," i.e., that defendant orally make some noise or sound that was capable of conveying meaning. However, the court found substantial evidence of a verbal statement where an officer testified a witness said defendant put his finger to his lips, made a "shushing" noise, and then drew his finger across his throat while the witness was being interviewed by the police. The court also found the defendant's actions to be an "unequivocal statement" under the statute and one which conveyed an immediacy…

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Name: People v. Duran
Case #: G024274
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/14/2001
Subsequent History: Rehg. den. 8/22/01

Appellant forced the driver of a car back into the car at gunpoint, and ordered him to drive. The driver's wife and baby were also in the car. The court held that a felonious taking under the carjacking statute can occur when the victim remains with the car. A taking occurs when the defendant exercises dominion and control over the car by ordering the victim to drive and directing him where to go. The court reversed a single conviction for carjacking as a necessarily included offense of the three kidnaping for carjacking convictions. The court…

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Name: In re Marcus T.
Case #: B146114
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/24/2001
Subsequent History: None

On the facts of this case, the court concluded that the threat against the public officer (Pen. Code, § 71) was a lesser and necessarily included offense of the crime of terrorist threat (Pen. Code, § 422). (Appellant had argued the reverse proposition.) Brown, a school district uniformed officer, saw appellant smoking on campus. Brown put appellant in a wrist lock, appellant pulled away, clenched his fist, and said: "...no body grabs me like that... I am from P.D.L. and I will fuck you up...I will take you out." Brown was "alarmed," knew P.D.L. referred to…

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Name: People v. Johnson
Case #: B139943
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 04/16/2001
Subsequent History: Rev. granted 7/25/01 as S097857

When the prosecution fails to charge a defendant in the alternative as required by statute, the court errs in staying, rather than striking individual convictions. Here appellant was charged and convicted of continuous sexual abuse (Pen. Code, sec. 288.5) and individual sexual felonies which occurred during the same alleged time period. Pursuant to Penal Code section 288.5, subdivision (c), such charges must be alleged in the alternative. This subdivision provides a clear benefit to the defendant. To comply with subdivision (c), the prosecutor may either charge continuous sexual abuse and the individual acts of abuse occurring…

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Name: In re Ricky T.
Case #: A090983
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 03/19/2001
Subsequent History: None

The appellate court found insufficient evidence that the minor had committed a terrorist threat under Penal Code section 422. When the minor returned to his classroom, he found the door locked and pounded upon it. His teacher Heathcote opened the door outwardly, and it hit the minor, who became angry and said, "I'm going to get you." He also told Heathcote, "I'm going to kick your ass." The minor never made any physical movement or gestures toward Heathcote. Heathcote said he felt physically threatened by appellant and sent him to the school office. The…

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Name: People v. Murphy
Case #: S075263
Court: CA Supreme Court
District CalSup
Opinion Date: 03/29/2001
Subsequent History: Rehg. den. 6/20/01

A defendant's prior conviction for oral copulation with a child under 14 in violation of Penal Code section 288a, subdivision (c) is a "strike." The plain language of section 1192.7 includes any lewd or lascivious act on a child under 14, and under any definition oral copulation on a child is a lewd or lascivious act. Any other interpretation of the statute would frustrate the intent of that section. J. Mosk dissented on the issue of whether appellant's prior conviction qualified as a "strike." A trial court should apply both the Three Strikes Law and the habitual…

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Name: People v. Benitez
Case #: C031974
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/06/2001
Subsequent History: Rev. granted as S096868 on 6/20/01

Editor's Note: Review granted. Appellant was convicted of attempting to make a terrorist threat (Pen. Code, §§ 664/422). On appeal, he claimed that his conviction had to be reversed because there can be no crime of attempted terrorist threat. Appellant argued that an attempted terrorist threat is not a crime because anything less than an actual terrorist threat within the meaning of section 422 is protected speech under the First Amendment. The Court of Appeal disagreed, finding that it is possible to commit a "true threat" (i.e., a threat that is not protected speech under the First…

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Name: People v. Vang
Case #: F030545
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 03/02/2001
Subsequent History: Rev. den. 6/20/01

In two drive-by shootings, the defense contended that the evidence was insufficient to show intent to kill anyone but victim Her at one location and victim Fang at another, based upon the location of bullets centered around the area where each of them could be seen from the street. Based upon the placement of the shots, and the use of high-powered, wall-piercing weapons, the jury could reasonably infer that defendants intended to kill every living being within the residences they shot up, including the eight other victims. The fact that the defendants could not see all the victims…

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