CA Unpub Decisions

Defendant Jared Michael Brobst was convicted by plea of sexual penetration of an unconscious person (Pen. Code, § 289, subd. (d)) and first degree burglary (§§ 459, 460, subd. (a)). He also admitted that a person not an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.

Defendant and appellant Chung Nguyen appeals from an order denying his request for attorney fees against plaintiff and respondent Truc Thanh Thi Truong. He claims he was entitled to fees under Civil Code section 1717 (section 1717) pursuant to an attorney fees provision in an agreement that was the subject of the action. The court denied the request on the ground there were no contract-based causes of action against him. We agree with that ruling and affirm the order.

A jury convicted Trisha Thomas of three counts of arson (Pen. Code, § 451, subd. (d), and one count of vandalism (Pen. Code, § 594, subds. (a), (b)). The court suspended imposition of sentence and placed Thomas on probation for five years.
Thomas asserts the prosecutor committed misconduct during closing argument by misstating the law on necessity, and by mentioning possible punishment.
We conclude the challenged arguments were not prosecutorial misconduct, and were harmless in any event. Therefore, we affirm the judgment.

A jury convicted Antonio Javier Pedraza of two counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a) [counts 1-2]; all statutory citations are to the Penal Code unless otherwise noted) and sexual penetration of a person under age 18 (§ 289, subd. (h) [count 3]). Pedraza contends the trial court erred in admitting evidence he committed uncharged sexual offenses against the victim. (Evid. Code, §§ 1108, 352.) He also argues the court abused its discretion in denying him probation. For the reasons expressed below, we affirm.

A jury convicted Ahmad Rashad Siddiqi of first degree murder (Pen. Code, § 187, subd. (a)) for stabbing Soraya Faroqi to death, found true the special circumstance that he committed the murder by lying in wait (Pen. Code, § 190.2, subd. (a)(15)), and found true that he personally used a weapon during the commission of the murder (Pen. Code, § 12022, subd (b)(1)). The trial court sentenced Siddiqi to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive year for the personal use enhancement.

A jury convicted defendant, Gustavo Dominguez Monroy, of 11 counts of lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); counts 1-8 & 10-12); furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (a); count 14) and unlawful sexual intercourse (§ 261.5, subd. (c); count 15.) The jury also found true as to counts 4 through 8, 11, and 12 the special allegation defendant had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8).) The court sentenced defendant to prison for an aggregate term of 26 years, 8 months.

Appellant Raul Ayala contends the trial court abused its discretion in denying his motion for a mistrial on the grounds the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose two potential witnesses. We disagree and affirm.

In March 2012, appellant Billy Joe Holtzclaw committed felony petty theft with prior convictions and threatened a witness. In August 2012, while out on bail on the petty theft and related charges, he failed to appear in court, which constituted another felony pursuant to Penal Code section 1320.5. Subsequently, the underlying petty theft offense was reduced to a misdemeanor pursuant to the Safe Neighborhoods and Schools Act (hereafter Proposition 47). On appeal, Holtzclaw contends the trial court erred in refusing to reduce his failure to appear charge to a misdemeanor in light of the reduction of the underlying offense; that the trial court erred when it imposed the aggravated term on the failure to appear charge; and that the jail sentence for misdemeanor petty theft with a prior should be no more than six months and not one year. We agree only with his last contention and in all other respects affirm.

Dustin A. is a former ward of the juvenile court who is subject to a requirement, currently stayed, to register as a sex offender because he was once found to have committed a violation of Penal Code section 647.6, annoying or molesting a child, and was subsequently committed to the California Youth Authority (CYA), now known as the Division of Juvenile Justice (DJJ). In 2010, the superior court granted Dustin’s writ petition asking the court to strike the section 647.6 adjudication from a 1995 order that had cited it as one basis for his commitment to CYA. The purpose and effect of the superior court’s 2010 order was to relieve Dustin of the obligation to register as a sex offender, and also to remove several sex-offense-based conditions of parole to which he was subject following some adult convictions of unrelated offenses. After an appeal by the People, we disagreed with the superior court’s reasoning and reversed the order, but kept the stay in place and remanded to allow

In a felony complaint filed March 19, 2014, defendant was charged with four counts of second degree robbery (Pen. Code, § 211), and one count of receiving stolen property (§ 496, subd. (a).) The complaint also alleged defendant received the stolen property for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and that defendant had suffered a prior serious felony conviction. (§§ 667, subds. (b)–(i); 1170.12, subds. (a)–(d).)
On March 25, 2014, pursuant to a plea bargain, defendant changed his plea on the charge of receiving stolen property from not guilty to nolo contendere. Defendant also admitted the attached gang enhancement (§ 186.22, subd. (b)(1)) and the prior strike. The four second degree robbery counts were dismissed. Defendant was later sentenced to prison for two years four months.

Defendant and appellant Joshua David Henson appeals from the trial court’s order denying his petition to recall his sentence pursuant to Penal Code section 1170.18, also known as Proposition 47. Defendant argues: (1) his trial counsel was ineffective because he failed to present evidence from the preliminary hearing that the stolen items were worth $950 or less; (2) this court should reconsider existing case law and place the burden on the People to establish the value of the stolen items; and (3) in the alternative, the order should be reversed because the record shows the stolen items were worth $950 or less. We affirm.

While riding his bicycle, Andres Olmos collided into the door of Brian Hunt's personal vehicle when Hunt opened its door. Olmos sued Hunt and Hunt's employer,
A-Z Bus Sales, Inc. (A-Z Bus), alleging negligence and respondeat superior liability. The court granted summary judgment in A-Z Bus's favor on the ground that the "going and coming" rule barred employer liability for Hunt's tort committed during his commute to work. Olmos argues A-Z Bus did not meet its initial burden of production on summary judgment to show the going and coming rule applies. He further argues triable issues of material fact exist as to the rule's applicability here. Whether the going and coming rule applies in this case cannot be decided as a matter of law; therefore, we reverse the summary judgment.

A jury found Douglas Vladimir Rosette guilty of felony vandalism (Pen. Code § 594, subd. (b)(1)), and the trial court sentenced him to three years of formal probation, subject to various conditions. On appeal, Rosette challenges the probation condition requiring him to submit to warrantless search and seizure. He asserts the condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad. We reject these contentions and affirm the judgment.

A jury found Kenneth Eugene Satterfield guilty of forcible rape (count 1; Pen. Code, § 261, subd. (a)(2)), forcible sexual penetration (count 2; § 289, subd. (a)(1)(A)), and forcible oral copulation (count 3; § 288a, subd. (c)(2)(A)). The jury also found true several enhancement allegations attached to each count, namely, that Satterfield personally used a deadly weapon and tied and bound the victim within the meaning of section 667.61, subdivisions (a), (c), and (e), personally used a deadly weapon within the meaning of section 667.61, subdivisions (b), (c), and (e), tied or bound the victim within the meaning of section 667.61, subdivisions (b), (c), and (e), and committed the crimes during the commission of a first degree burglary and a second degree burglary within the meaning of section 667.61, subdivisions (a), (c), and (d) and subdivisions (b), (c), and (e).