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Name: People v. Franklin
Case #: D071453
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/26/2018

Trial court's response to jury question regarding proof of provocation to reduce premeditated attempted murder to voluntary manslaughter was error, but harmless. Franklin was convicted of premeditated attempted murder and other offenses. Gun use enhancements were found true. The charges arose after a confrontation between several men erupted in gunfire. During deliberations, the jury sought clarification regarding how attempted murder might be reduced to attempted voluntary manslaughter based on heat of passion (CALCRIM No. 603). The trial court instructed that to find voluntary manslaughter, the prosecution must prove heat of passion. This is not the law, as heat of passion…

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Name: People v. Tran
Case #: G053424
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/16/2018

Trial court did not prejudicially err by giving kill zone instruction that did not identify the murder victim as the primary target and instead named an attempted murder victim as both the primary target and a secondary victim of the gun fire. A jury convicted Tran of second degree murder, attempted murder, and other charges, and found true gang and firearm use enhancements, based on evidence Tran's passenger shot multiple times into a rival gang member's car, killing Bui and injuring James. On appeal, Tran challenged the attempted murder conviction based on the trial court's inartfully worded instruction on the…

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Name: People v. Mullins
Case #: C079295
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/17/2018

There was sufficient evidence of to support robbery convictions where the victims had used their ATM cards to access their bank accounts and defendants used force and intimidation to take over the transactions and withdraw money. Mullins and Russell were convicted of several counts of robbery (Pen. Code, § 211) based on evidence they pushed victims away from bank ATMs before the victims could end the transaction and subsequently withdrew large sums of money from the victims' accounts. On appeal, appellants argued there was insufficient evidence to sustain the robbery convictions because the victims did not have possession of the…

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Name: People v. Rubino
Case #: H042666
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/12/2017

Read in its entirety, the attempted arson instruction sufficiently defined the mental state required for the offense, which is the intent to set fire to the structure or property. Rubino was caught on video surveillance placing combustible material and fluid into the metal drop box of the office of the mobile home park where he lived. He also lit a rolled up piece of paper and placed it into the drop box. At his trial on arson charges, Rubino testified he staged the arson attack on the manager's office but did not intend to cause harm. He was convicted of…

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Name: People v. Garcia
Case #: A139924
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 11/14/2017

One Strike finding that defendant committed sex offense during residential burglary upheld where invited overnight guest entered bedroom of home to commit sex offense against minor. Garcia, while staying as an invited guest in his sister-in-law's house, entered a bedroom and committed forcible sex acts against his 12-year-old niece. The jury convicted him of numerous sex offenses, and found that he committed them during a residential burglary. The burglary finding resulted in a sentence of LWOP under the One Strike law (Pen. Code, § 667.61). On appeal he argued the burglary finding must be stricken because he was an invited…

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Name: Peope v. Gonzales
Case #: B276101
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/23/2017

Trial court did not err by instructing the jury with CALCRIM No. 1191 regarding defendant's prior uncharged sex offenses against the witness who testified at trial about the charged offenses. At Gonzales' trial for various child molestation offenses against L.W., she testified about both charged and uncharged sex offenses that Gonzales committed against her. The court instructed the jury that it could consider the uncharged conduct if the prosecution had proven by a preponderance of the evidence that Gonzales in fact committed the uncharged offenses. (CALCRIM No. 1191.) The jury convicted Gonzales. On appeal, he argued that this instruction should…

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Name: People v. Luo
Case #: H042668
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/04/2017

There was sufficient evidence to sustain defendant's involuntary manslaughter conviction although no expert testimony was presented regarding the standard of care applicable to construction sites. A jury convicted Luo of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and safety code violations after an unsupported excavation at a construction site collapsed, killing a worker. On appeal Luo argued the evidence was insufficient because there was no expert testimony presented to establish the standard of care with which he was required to act, or the manner in which he breached that duty. Held: Affirmed. To prove involuntary manslaughter, the prosecution was…

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Name: People v. Jo
Case #: C079280
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/03/2017

Trial court erred by instructing the jury, over defense objection, with an inconsistent affirmative defense to child custody deprivation. A jury convicted defendant of child custody deprivation (Pen. Code, § 278.5, subd. (a)). The case arose when defendant, a South Korean citizen, took her minor daughter from Sacramento to Korea and, for years, blocked contact between the father in Sacramento and the daughter. Defendant appealed, raising a number of instructional and other issues. Held: Affirmed. A trial court has a sua sponte duty to instruct on lesser included offenses even over defense objection. But the duty to instruct on a…

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Name: People v. Lujano
Case #: B269153
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 09/11/2017

Trial court did not err by failing to give optional language in CALCRIM No. 1032 related to defense to sodomy of an intoxicated person because the instruction duplicated other instructions that were properly given. Lujano was charged with sodomy of an intoxicated person. At trial, he requested that the court give the following optional language from CALCRIM No. 1032: "The defendant is not guilty of this crime if he actually and reasonably believed that the other person was capable of consenting to the act, even if that belief was wrong." The court denied the request on the ground that there…

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Name: People v. Calistro
Case #: F070176
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/06/2017

Defendant's nontheft conviction under Vehicle Code section 10851, subdivision (a) did not bar his conviction for receiving stolen property inside the car. Five hours after a car was reported stolen, police found defendant sitting inside the stolen car at a nearby gas station, with the owner's wallet and cell phone in the passenger seat. Defendant was convicted of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (the credit cards inside the vehicle) (Pen. Code, § 496, subd. (a)). On appeal, defendant challenged his conviction for receiving the stolen credit cards, arguing that…

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