CA Unpub Decisions

This case concerns the phased development of the Norman Y. Mineta San Jose International Airport (Airport) under the 1997 Airport Master Plan Update (Airport Master Plan) as amended over the years. Before the Airport Master Plan was adopted, an environmental impact report (EIR) analyzing the proposed plan, the San Jose International Airport Master Plan Update EIR (Master Plan EIR), was prepared for the City of San Jose (City). Over the ensuing years, a supplemental EIR (SEIR) and multiple addenda to the Master Plan EIR were prepared and the Airport Master Plan was amended a number of times.

In this action SJJC Aviation Services, LLC (SJJC) filed a petition for writ of mandate and a complaint seeking to overturn the decision by the City of San Jose (the City) to award a lease and operating agreement to real parties in interest Signature Flight Support Corporation (Signature) and its prospective subtenant, BCH San Jose LLC (BCH). The superior court sustained the demurrers of the City and real parties to SJJC’s first amended petition and complaint without leave to amend. SJJC appeals from the ensuing judgment of dismissal, contending that the “flawed” process of soliciting bids for the lease should be set aside and asserting abuse of discretion by the court in denying leave to amend. We will affirm the judgment.

Defendant and appellant Chase Pizza, Inc. (Chase) appeals from the trial court’s order denying its motion for attorney fees pursuant to Civil Code section 1717 after judgment was entered in its favor in this breach of contract action brought by plaintiff and respondent Royal Capital Holdings, Inc. (Royal). Because the parties’ contract contains no attorney fee provision that applies to the instant action, we affirm the order denying the motion for attorney fees.

The Ralph M. Brown Act (Gov. Code, § 54950 et seq.; Brown Act) requires that most meetings of a public agency’s legislative body be open to the public. The Brown Act provides that any interested person may commence an action to obtain a judicial determination that a public action taken in violation of the act is null and void.
John Rizzo and The Marina Tenants Association (collectively Rizzo) sought declaratory and injunctive relief against the Los Angeles County Board of Supervisors (the Board) on the ground that it violated the Brown Act by approving a real property transaction in a closed session. Rizzo appeals from the judgment entered after the trial court granted defendants’ motion for summary judgment. He contends the judgment should be reversed because defendants admitted they violated the Brown Act by permitting board staff to negotiate the property transaction away from public view. We disagree and thus affirm.

Appellant Nasser Hamid Zahir appeals from the order revoking and terminating his probation. The trial court executed appellant’s suspended four-year prison sentence for carrying a concealed dirk or dagger (Pen. Code, § 21310), which included two enhancements for serving prior prison terms (§ 667.5, subd. (b)). On appeal, appellant contends: (1) he was denied his due process right to adequate notice to prepare a proper defense when the court found him in violation of probation on a ground not included in the probation department’s report; and (2) there was insufficient evidence to support the court’s finding he violated his probation. We affirm.

On June 22, 2015, at approximately 1:30 p.m., while Karlia Espinoza was babysitting her younger brother, Angel, at their Palmdale apartment where they lived with their parents, someone knocked on the apartment’s front door. At the time Karlia and Angel were home alone. After the knocking, Karlia heard the front door’s knob being turned. Karlia sent Angel to look through the front door’s peephole because he was taller. Through the peephole, Angel saw Wright. Angel did not recognize Wright and he did not say anything to Wright because he was afraid. And Wright did not say anything to him. After a few seconds, Angel saw Wright walk to the left toward the window in Karlia’s bedroom. Angel told his sister and she went down the hall toward her bedroom. Shortly thereafter, Angel heard a “knocking” sound coming from his sister’s bedroom window.

Defendant Yvonne D. Keith and defendant Allen Williams planned the murder of Erik Poltorak with Michael Thomas (Michael). Michael wanted Poltorak killed because Poltorak was scheduled to testify that Michael robbed him. Jessicha Thomas (Jessicha), Michael’s niece, was with Williams when he shot and killed Poltorak. After killing Poltorak, Keith, Williams, and Jessicha visited Michael, who was incarcerated, and confirmed that Poltorak had been killed. After being arrested, Williams and Keith confessed to the killing, and Keith also confessed when she testified at trial.
Defendants Keith and Williams raise numerous challenges to their convictions. Michael and Jessicha were not tried with Keith and Williams and are not parties to this appeal. We direct the trial court to modify the abstract of judgments to reflect the trial court’s order that Keith and Williams bear the restitution costs jointly and severally. In all other respects, we affirm the judgments.

Kevin Eugene Williams (defendant) appeals from the trial court’s denial of his petition for recall and resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126). The trial court determined defendant was ineligible for recall and resentencing because he was armed with a firearm during the commission of the subject offense. (§§ 1170.126 subd. (e)(2), 667, subd. (e)(2)(C)(iii).) We affirm.

On December 4, 2014, an information was filed alleging that, around September 30, 2014, appellant Andy Villalobos committed the offense of carjacking (Pen. Code, § 215, subd. (a)) by taking a motor vehicle from the possession of Marc Valdez against his will, by means of force or fear, and with the intent to permanently or temporarily deprive him of possession of the vehicle. At the conclusion of a jury trial on June 30, 2015, appellant was convicted of the charged carjacking offense. On August 7, 2015, the trial court sentenced appellant to the upper term of nine years. On appeal, appellant contends the prosecutor violated the criminal discovery statutes and his due process right to a fair trial by failing to timely name Bakersfield Police Officer Chad Gross as a witness for the prosecution. Finding no discovery or constitutional violation occurred, we conclude the trial court properly allowed the officer’s testimony and affirm the judgment.

Defendant Lafonzo Ray Turner was involved in an altercation with a correctional officer after he disobeyed the officer’s orders to “strip out” following a visit because he had an urgent need to use the restroom. A jury found him guilty of battery upon a nonconfined person and found an attached great bodily injury enhancement true. After admitting that he had a prior strike and had served two prior prison terms, the court sentenced defendant to 18 years in state prison.

Defendant Brent Allen Taylor appeals from an order denying his motion for resentencing in which he requested that the trial court strike two one-year sentence enhancements (Pen. Code, § 667.5, subd. (b)) in a 2006 conviction that were based on prior felony convictions for which he served separate prison terms. Taylor claims that the enhancements should be stricken because the felony offenses on which they rested were reduced to misdemeanors in 2015 pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (§ 1170.18). We disagree. The reduction of a felony offense to misdemeanor under Proposition 47 does not apply retroactively to invalidate sentence enhancements that became final before Proposition 47’s enactment. We treat Taylor’s appeal as an original petition for writ of habeas corpus and deny relief.

Daryl Eugene Stempfley was found guilty of removing spikes used to hold railroad tracks in place, and being under the influence of methamphetamine. He argues the trial court improperly instructed the jury resulting in the burden of proof shifting to him to prove he did not remove any spikes. We find no error and affirm the judgment.

In two cases below, defendant Gary Dale Silva pleaded no contest to two counts of vehicle theft and one count of evading a peace officer. The trial court imposed a total four-year term including a one-year term for a prior prison term enhancement under Penal Code section 667.5, subdivision (b). Silva, however, never admitted the prior prison term enhancement, and it was never found true by any jury or court.
Silva contends the trial court imposed an unauthorized sentence. The Attorney General concedes Silva never admitted a prior prison term enhancement, but the Attorney General contends the trial court simply misspoke at the sentencing hearing.
The transcript of the sentencing hearing, the minutes of the hearing, and the abstract of judgment all reflect the imposition of a one-year term for a prior prison term enhancement. No grounds support the imposition of this term. We will reverse the judgment and remand for resentencing.

Defendant and appellant Paul Vincent Scarzo (defendant) appeals his conviction of multiple sexual crimes. He contends that the trial court improperly terminated his pro. per. status and appointed counsel to represent him; that a juror engaged in misconduct during deliberations, and the trial court erred in denying his motion for new trial based upon the alleged misconduct; that the trial court erred in imposing consecutive sentences as to counts 1 and 2; and that the abstract of judgment and minutes of the sentencing contain clerical errors. Respondent agrees with defendant’s last assignment of error, and asks that both the minutes and abstract be corrected. While we agree that the clerical errors should be corrected, we find no merit to defendant’s remaining contentions and affirm the judgment.