CA Unpub Decisions

This is the third time we have addressed appellant’s entitlement to Proposition 47 relief for crimes arising out her unauthorized use of a credit card. Following our first two opinions, we hold Proposition 47 applies to appellant’s conviction for second degree commercial burglary, but it does not apply to her conviction for unlawful acquisition of credit card information.
On November 1, 2005, appellant used a stolen credit card to acquire a hotel room in Anaheim. Based on that incident, she was charged with, and ultimately pleaded guilty to, one count each of second degree commercial burglary, unlawful acquisition of credit card information and fraudulent use of a credit card. (Pen. Code, §§ 459, 460, subd. (b), 484e, subd. (d) & 484g.) In 2014, following the passage of Proposition 47, she petitioned to have her convictions for burglary and unlawful acquisition of credit information reduced to misdemeanors. However, the trial court denied her petition.

K.M. appeals from a trial court order reappointing a conservator of her person and estate pursuant to the Lanterman-Petris-Short Act (LPS Act) and prohibiting her from exercising specified rights and privileges. (Welf. & Inst. Code, § 5000 et seq.) K.M. contends there was insufficient evidence to support (a) the trial court’s findings she was presently gravely disabled, and (b) the trial court’s order denying her certain rights and privileges. We affirm.

A jury found defendant Dirk Jaong Bouie, Jr., guilty of two counts of battery by a prisoner on a nonconfined person. In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions. The trial court sentenced defendant to the midterm of three years on count one, doubled to six years under the Three Strikes law, and imposed the same concurrent sentence on count two.
Defendant now contends the trial court abused its discretion in selecting the midterm sentence for each count. We do not reach defendant’s claim, however, because as the People correctly point out, the trial court imposed an unauthorized sentence by sentencing him to concurrent rather than consecutive sentences. We will reverse the sentence, remand for resentencing, and in all other respects affirm the judgment.

Mose Mitchell, Jr., appeals a judgment following the trial court’s denial of his petition for recall of sentence. (Pen. Code, § 1170.18, subd. (a).) We affirm.
In October 2011, Mitchell pled guilty to one count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)) and one count of dissuading a witness (§ 136.1, subd. (c)). The trial court sentenced him to 23 years in state prison. In August 2016, Mitchell petitioned to have his sentence recalled pursuant to section 1170.18, subdivision (a). The trial court denied the petition, finding Mitchell ineligible for relief.

In an earlier appeal, we affirmed the trial court’s order requiring Michael to pay Tania’s attorney fees following entry of a stipulated judgment settling issues of child and spousal support. Here, Michael appeals an order joining Michael Price, M.D., Inc. (M.D., Inc.) as an additional judgment debtor. It appears that the income Michael earns, which is paid to M.D., Inc., is considerably more than the amount M.D., Inc. pays to Michael each month. Consequently, he owes Tania a substantial amount of back support. The court concluded Michael’s claimed penury was self-imposed and that M.D., Inc. is Michael’s “alter ego.” It ordered that the corporation be added as a judgment debtor to satisfy his support obligation.

Emma, born in 2010, and V.F., born in 2015, are half-sisters. Alan O. is the father of Emma, and Rafael F. is the father of V.F. Neither father is a party to this appeal.
Emma, mother, and Rafael were living together when mother became pregnant with V.F. Rafael entered a residential drug treatment program shortly before V.F. was born but did not complete the program. A few weeks after V.F. was born, on January 21, 2016, Rafael pressed a knife against mother’s body, leaving “little puncture dots” on her chest. Mother obtained a temporary restraining order against Rafael later that day.

Defendant Joseph Martinez appeals from a judgment of conviction of pimping, pandering, and attempted pimping. (Pen. Code, §§ 266h, subd. (a), 266i, subd. (a)(1), 664.) The judgment is affirmed.

A jury convicted defendant Fort of arson and other charges. In this appeal, defendant argues the People’s arson expert should not have been permitted to testify because he did not have sufficient training. Defendant also contends the prosecutor committed prejudicial misconduct during his final summation by repeatedly arguing a fact not in evidence. We affirm.

Defendant Fredrick Gerod Bryson Jr. appeals from a judgment of conviction of driving under the influence (Veh. Code, § 23152, subd. (a)) and driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). He contends the trial court, by failing to obtain his personal waiver of jury trial, erroneously tried alleged enhancements for prior convictions, a prison prior, and refusal to submit to a chemical test. He also asks us to review the sealed transcript of a Pitchess hearing to determine whether the trial court erred in finding no discoverable information. While we conclude there were errors in connection with both issues, we conclude the one jury trial error was harmless. As to the Pitchess hearing, the trial court failed to place the custodian of records under oath at the in camera hearing and failed to make a sufficiently clear record to permit appellate review. We therefore conditionally reverse the judgment and remand for a new hearing.

Attorney Mark Hooshmand sued a former client, Karleen Latorya Griffin, over negative internet postings Griffin made after she became unhappy with Hooshmand’s handling of a lawsuit against her landlord. Griffin made a special motion to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16), which the trial court denied as to Hooshmand’s causes of action for libel per se and false light (and for injunctive relief associated with these two claims) and granted as to Hooshmand’s cause of action for intentional infliction of emotional distress. Griffin appeals as to the libel and false light claims; Hooshmand cross-appeals as to the intentional infliction of emotional distress claim. We affirm.

Appellants Amarette Aimee Moctezuma and Joseph Daniel Kribell were placed on probation for assaulting a homeless man. They contend the trial court erred in granting the prosecution’s request for midtrial continuances to locate an important eyewitness who, at the time of trial, was also homeless. We disagree and affirm the judgments.

Appellant Diane Dellamarggio (Dellamarggio) filed a complaint against her now-estranged husband’s employer, respondent WinCo Foods, Inc. (WinCo), for damages she suffered as a result of an extramarital affair her husband had with another WinCo employee. The trial court sustained WinCo’s demurrer to the complaint without leave to amend on the ground that the action was barred by California’s “anti-heart-balm statute,” Civil Code, section 43.5. Dellamarggio, in propria persona, contends the statute does not apply to her case and that alternatively, she should be given the opportunity to amend her complaint. For the reasons set forth below, we shall affirm the judgment.

In this suit under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code § 2710 et. seq.), plaintiffs Joe and Yvette Hardesty (collectively, Hardesty), attack findings by the State Mining and Geology Board (Board). The Board’s disputed findings conclude there are no vested rights to surface mine at the Big Cut Mine in El Dorado County (County, not a party herein). The findings in effect deny Hardesty a “grandfather” exemption from the need to obtain a County mining permit. (See § 2776, subd. (a).) The trial court denied Hardesty’s mandamus petition, and Hardesty timely appealed from the ensuing judgment.

The People charged Arman Werdian in an information with two counts of second degree robbery. The information specially alleged as to the second robbery count that Werdian had committed the offense while released on bail. Werdian pleaded not guilty and denied the special allegation.
According to the evidence presented at trial, on December 22, 2015, Werdian left a department store without paying for some merchandise. Outside the store, he was approached by Diana Osorio, a loss prevention officer. Werdian refused to return the merchandise, and he struggled with Osorio. Werdian struck Osorio twice in the chest, bruising her. With the help of a colleague, Osorio subdued Werdian. The police took Werdian into custody; the merchandise was recovered.