CA Unpub Decisions

Does a tenant leasing commercial property or the property’s owner bear the financial burden of complying with a 2017 local ordinance that requires seismically retrofitting a building? That is the question we are asked decide, and the answer turns on whether the leasing arrangement in this case—which includes an early termination provision in the property owner’s favor—is more like the arrangement in Hadian v. Schwartz (1994) 8 Cal.4th 836 (owner held responsible) (Hadian) or Brown v. Green (1994) 8 Cal.4th 812 (tenant held responsible) (Brown).

In September 2021, pursuant to a negotiated disposition, defendant pled guilty to one count of voluntary manslaughter with an enhancement for personal use of a firearm, in exchange for a stipulated sentence of 21 years. (Pen. Code, §§ 192, subd. (a), 12022.5.)
On September 30, 2021, the court sentenced defendant according to the plea agreement to 21 years in state prison. The sentence consisted of the 11-year upper term for voluntary manslaughter, as well as the 10-year upper term for the firearm enhancement.
On appeal, defendant contends that he is entitled to resentencing based on two recent amendments to Penal Code section 1170.

Sergio Alcantar Duarte, a noncitizen of the United States, challenges the trial court’s denial of his motion under Penal Code section 1473.7 to withdraw a 2002 guilty plea to statutory rape. Defendant argues he did not meaningfully understand the immigration consequences of his plea (considered “immigration safe” in 2002), in light of a 2017 United States Supreme Court opinion defining “sexual abuse of a minor” under the Immigration and Nationality Act to encompass his offense. For the reasons stated here, we will affirm.

In these two appeals, plaintiffs Carole Cook, Joanne Martin, Judy Berry, and Jeff Alsberg appeal from a judgment following a bench trial, in which the trial court determined that the operative complaint was barred by the statute of limitations. Plaintiffs assert that the trial court erred in finding the statute of limitations applicable, and argue that numerous other errors warrant reversal of the judgment. Plaintiffs also appeal the trial court’s costs and attorney fees judgment awarding defendants $320,100 in attorney fees. We affirm the judgments.

We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)
A jury convicted defendant Edward Chao of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and he was placed on felony probation, after a trial where the following evidence was presented: Defendant walked into a hotel lobby one night in 2018, took a fire extinguisher from a case on a wall, entered the hotel’s adjoining bar, and sprayed the extinguisher toward some of the tables. Much of the bar (which has an occupancy of about 100 people) was “covered in a grayish powder” from the fire extinguisher. This included “bottles, [] walls, carpets, tables, chairs, everything.” As many as 10 bar patrons were sprayed with the powder, and some patrons were coughing and appeared to have trouble breathing.
The bar manager testified that pouring spouts attached to alcohol bottles “were covered in whi

Appellant Martha Donohoe and respondent James Zaorski divorced in 2009. In connection with their divorce, they entered into a marital settlement agreement (MSA), which provided that Zaorski would pay Donohoe an equalizing payment under certain circumstances. In 2016, Zaorski sold his interest in a company he founded. It is undisputed that Zaorski owes Donohoe an equalizing payment based on his “proceeds”—as that term is used in the MSA—from the sale. However, the parties dispute the amount of the payment and whether Zaorski owes postjudgment interest on the equalizing payment.
In orders issued on February 22, 2019 and July 19, 2019, the trial court resolved the parties’ disputes. On appeal from those orders, Donohoe argues that the trial court erred by (1) concluding that a special cash dividend Zaorski received in connection with the sale does not constitute “proceeds” for purposes of calculating the equalizing payment;

Defendant Han Quoc Hoang challenges the trial court’s ruling declining to exercise its discretion, under Penal Code section 12022.53, subdivision (h), to strike defendant’s section 12022.53, subdivision (d) firearm enhancement. Defendant argues that the court abused its discretion by refusing to consider imposing a lesser firearm enhancement under section 12022.53, subdivisions (b) or (c).
We previously rejected defendant’s argument and affirmed the trial court’s order declining to strike the section 12022.53, subdivision (d) firearm enhancement. The California Supreme Court granted review, and deferred further action pending consideration and disposition of a related issue in People v. Tirado. (People v. Hoang, review granted Sept. 29, 2021, S270553.)

Manuel Larios appeals from a judgment after a jury convicted him of sexual offenses. Larios argues the trial court erred in admitting evidence, and the prosecutor committed misconduct. As we explain below, the court erred by admitting a priest’s testimony without determining its probative value and without weighing its probative value, if any, against its prejudicial effect. We reverse the judgment because the court’s error resulted in a miscarriage of justice that denied Larios a fair trial.

In a complaint filed April 30, 2021, the Merced County District Attorney charged defendant with one count of making criminal threats. (Pen. Code, § 422.)
On July 2, 2021, the court found defendant incompetent to stand trial. In an order filed August 6, 2021, the court directed the sheriff to deliver defendant into the custody of Napa State Hospital or another Department of State Hospitals facility. The order further provided that “upon it being determined that he has recovered his mental competence, he shall be redelivered to the Sheriff of Merced County, without delay, and without further order, and brought before this court for further proceedings against [defendant].”
At a hearing was held on November 5, 2021, to determine whether defendant had been delivered to a state hospital. It was discovered that defendant had not yet been transferred to a state hospital and the matter was continued to December 15, 2021. Defendant filed a notice of appeal on November 15, 2021.

Six-year-old H.P. was removed from the custody of her mother, C.P., and the subject of a juvenile dependency case under Welfare and Institutions Code section 300. At the time of the 12-month status review hearing (§ 366.21, subd. (f)), the juvenile court terminated jurisdiction and dismissed the dependency proceedings, ordering sole legal and physical custody be granted to H.P.’s father, T.P., with mother to have supervised visitation. Mother appeals the visitation portion of the juvenile court’s “exit order,” contending the court erred by ordering mother’s visits be supervised as opposed to unsupervised. Finding no error, we affirm.

On April 30, 2021, the Merced County District Attorney filed a complaint charging defendant with one count of making criminal threats. (Pen. Code, § 422.) At a hearing on May 19, 2021, defense counsel declared a doubt as to defendant’s competency. The court suspended criminal proceedings pursuant to section 1368 and appointed a Dr. Zimmerman to evaluate defendant.
Dr. Zimmerman prepared a report. Based on the report, the court declared defendant incompetent to stand trial on July 2, 2021.
On July 20, 2021, defendant filed a written Marsden motion. A declaration attached to the motion appears to have been preprinted, with blanks where defendant’s name was handwritten. The declaration had several preprinted grounds for the Marsden motion, with a checkbox next to each.

In 2017, defendant Martin F. Mulato and a codefendant, both inmates, were involved in a fight against a third inmate, whom they struck multiple times with their fists. The victim had minor injuries to his face and body, and he was transported to the hospital due to temporary loss of consciousness, but no further injuries were reported.
Defendant was charged with two felonies, assault by a prisoner with a deadly weapon (fists) and with force likely to produce great bodily injury (GBI), with an attached sentence enhancement for personal infliction of GBI (count 1), and battery with infliction of serious bodily injury (count 2). (Pen. Code, §§ 4501, 12022.7, subd. (a), 243, subd. (d). The information also alleged that defendant suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
The parties were unable to reach a plea agreement and the matter was confirmed for trial.

In 2012, appellant Gregory William Starling was convicted of premeditated attempted murder and sentenced to the second strike term of 14 years to life, plus 25 years to life for the personal discharge of a firearm causing great bodily injury.
In 2020, Starling filed a petition for resentencing of his conviction for premeditated attempted murder pursuant to Penal Code section 1170.95. The superior court summarily denied the petition because Starling was convicted of attempted murder and not murder and ineligible for relief under the then-existing statutory provisions.
On appeal, Starling’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).) We ordered further briefing from the parties as to whether the instant appeal was affected by the enactment of Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate Bill 775), which amended section 1170.95, effective on January 1, 2022, to add attempted murder as an eligible conviction for resentencing.

On May 22, 2019, appellant Jose Ignacio Rodriguez was convicted by jury of first degree burglary (Pen. Code, § 459) and resisting or delaying a peace officer (§ 148, subd. (a)(1)). The jury also found true an allegation that a person was present during the commission of the burglary. In addition, the trial court found true enhancements alleging Rodriguez had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), he had served three prior prison terms (§ 667.5, subd. (b)), and that he had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Rodriguez was sentenced to an aggregate prison term of 14 years.
Rodriguez raises the following claims on appeal: (1) Following the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), the prior prison term enhancement (§ 667.5, subd. (b)) applied to his sentence must be stricken,