CA Unpub Decisions

A jury found defendant Luis Martinez guilty of six felonies arising from three separate gang-related attacks, and found true various firearm and gang enhancements. The trial court sentenced defendant to 29 years plus 32 years to life in state prison.
On appeal, defendant contends: (1) there was insufficient evidence to support the gang enhancements, and (2) the trial court violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the California Constitution by refusing to instruct the jury on self-defense. We will reverse the gang enhancements and remand for resentencing. In all other respects, the judgment is affirmed.

Following a shooting in which one person died, one sustained severe injuries, and two escaped without injury, a jury convicted Jherome Higuera on one count of murder and three counts of attempted murder. The jury found Higuera committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in the criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b)(1). The jury also found Higuera personally used, and personally and intentionally discharged, a firearm causing death and great bodily injury, within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d).

Defendant and appellant Shawnpatrick Greenblat (defendant) appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.18. The issue is whether defendant made a sufficient showing in his petition that he qualifies for resentencing for misdemeanor shoplifting (§ 459.5, subd. (a)) in lieu of his original sentence for second degree commercial burglary. He contends that the facts underlying a dismissed count show that he entered a business for the purpose of passing a forged check in the amount of $485 and that this supports his position that the commercial burglary to which he pled guilty constitutes misdemeanor shoplifting.

Silas Dosio pleaded guilty to failing to register as a sex offender (Pen. Code, § 290.018, subd. (b)). The court placed Dosio on probation subject to various terms and conditions. One of the conditions prohibits Dosio from associating with minors without an approved adult being present.
Dosio appeals contending the probation condition is unconstitutional as an overbroad limitation on his right of association. We will find the probation condition appropriate for the supervision of Dosio and find that it is not overbroad.

Facing a maximum sentence of 66 years to life, Justin J. Didonato pleaded guilty to first degree residential burglary (count 1; Pen. Code, §§ 459/460) and robbery
(count 2; § 211) after the trial court stated an indicated maximum sentence of 30 years. The court sentenced Didonato to 26 years in state prison. Didonato appeals, contending the court violated the prohibition against multiple punishments for the same act (§ 654, subd. (a)) by imposing unstayed sentences for both the burglary and robbery counts. We agree and remand the case for resentencing, but otherwise affirm the judgment.

Aaron Daniel Bonin appeals from a judgment of the superior court extending Bonin's civil commitment to the Department of Mental Health for involuntary treatment as a mentally disordered offender (MDO). Bonin's counsel has filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We conclude that Anders/Wende procedures do not apply to appeals in MDO commitment cases, and thus dismiss the appeal.

Appellant Carl Thomas Banks appeals from an order denying his Proposition 47 petition for a recall of sentence, based upon his no contest pleas to second degree commercial burglary and unlawful driving or taking of a vehicle. (Pen. Code, §§ 459 (count 1), 1170.18, subd. (a); Veh. Code, § 10851, subd. (a) (count 2).) We affirm.

A jury convicted Juan Fernando Acevedo of committing a lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (a); count 1: penis touching S.G.) and of committing a lewd act upon a child 14 or 15 years of age by a person more than 10 years older than the child (§ 288, subd. (c)(1); count 7: touching buttocks of V.H.). The court sentenced Acevedo to consecutive prison terms of six years for count 1 and eight months for count 7.
Acevedo contends his convictions should be reversed because the court erred in (1) not granting a motion for mistrial when the prosecutor commented upon Acevedo's decision not to testify at the preliminary hearing, (2) allowing expert testimony regarding misconceptions regarding child abuse victims, and (3) denying the defense request to introduce a DVD of one of the victims during the People's case-in-chief. We disagree with these contentions and conclude there was no reversible error. We affirm the judgment.

Michael P. (father) appeals from the juvenile court’s order terminating his parental rights. (Welf. & Inst. Code, § 366.26.) He contends: (1) the court abused its discretion by denying his petition to modify an existing order (§ 388) without an evidentiary hearing; and (2) the court’s finding that the children are adoptable is not supported by sufficient evidence. We affirm.

Appellant, A.H., was the subject of three sustained wardship petitions under Welfare and Institutions Code section 602. (§ 602, subd. (a).) Following a contested jurisdictional hearing on the third petition, the juvenile court found A.H. violated Education Code section 32210 that prohibits willfully disturbing a public school.

Fidelity National Information Services, Inc. (Fidelity) appeals from a judgment entered in favor of the Franchise Tax Board after a bench trial on Fidelity’s complaint for a refund of taxes. On appeal, Fidelity contends: (1) the trial court erred when it ruled that capital gains from the sale of its stock in Covansys Corporation was business income subject to tax by California and (2) treating the gains as business income violates the due process clauses of the California and federal Constitutions. With respect to the first issue, we agree with Fidelity that the court erred when it failed to address Fidelity’s argument that, even if the Covansys stock was an integral part of Fidelity’s business operations at one time, it was a nonbusiness investment long before it was sold. We reject Fidelity’s other challenges to the trial court’s determination. We need not reach Fidelity’s constitutional argument because we reverse and remand for further proceedings.

Plaintiff and appellant US ETA, Inc. (US ETA) and defendants and respondents B/E Aerospace, Inc. and Aerospace Lighting Corporation (collectively, B/E Aerospace) agreed to settle the underlying lawsuit for $380,000. After some haggling over the terms of a written settlement agreement, all parties signed the agreement, B/E Aerospace transferred the settlement funds, US ETA received and kept those funds, and B/E Aerospace filed a dismissal request that US ETA had agreed to as part of the settlement.

This is the third appeal by appellant Jordan Rosenberg (Rosenberg) challenging adverse trial court rulings dismissing his actions brought for lack of personal jurisdiction against the defendants/respondents in those respective actions. In his first appeal (Rosenberg v. Springpoint Senior Living, Inc. (Feb. 6, 2013, A133504) [nonpub. opn.], we affirmed the trial court’s dismissal for lack of jurisdiction over Springpoint Senior Living, Inc. (Springpoint) and Hudson City Bancorp, Inc. (Hudson), the latter being the parent company of respondent M&T Bank (formerly known as Hudson City Savings Bank) (referred to in this opinion as “M&T”). In the second appeal (Rosenberg v. Springpoint Senior Living, Inc. (Oct. 16, 2015, A142709 [nonpub. opn.]), we again affirmed the trial court’s dismissal of the same action (Super. Ct. S.F. City and County, 2014, No. CGC-10-505893) for lack of jurisdiction as to Springpoint, Hudson, and certain employees of Hudson who had been sued in their indiv

E.A. Renfroe & Company, Inc. (Renfroe) appeals from an order denying its petition to compel former employees, respondents Monica Quiroz and Yulander McTier, to arbitrate their employment claims against Renfroe. Renfroe contends the trial court erred in determining the arbitration agreement respondents signed when Renfroe hired them was unenforceable under Alabama law because it was unconscionable. Renfroe asks that we order the trial court to compel respondents’ individual claims to arbitration, dismiss their class and representative claims, and order a stay of litigation until arbitration is completed. We conclude the arbitration agreement was not unconscionable under Alabama law, but we will reverse and remand for further proceedings in light of our conclusion.