CA Unpub Decisions

Appellant, Brian Leon Booker, pled guilty to first degree burglary (Pen. Code, § 460, subd. (a)); evading a police officer (Veh. Code, § 2800.2, subd. (a)); resisting arrest (Pen. Code, § 148, subd. (a)(1)); and vehicle theft (Veh. Code, § 10851, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

Appellant/defendant Jermaine Michael Dean was convicted of first degree premeditated murder with a robbery special circumstance, and sentenced to life in prison without possibility of parole. The court ordered him to pay a $10,000 restitution fine pursuant to Penal Code[1] section 1202.4, and victim restitution of 5,861.42 for the victim’s funeral expenses. Defendant did not object.
On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) By letter on December 11, 2012, we invited defendant to submit additional briefing.
Defendant has filed a briefing letter, and contends the restitution fine and restitution for the victim’s funeral expenses must be stricken because the sentencing court failed to consider his ability to pay. We affirm.

Appellant, Joshua Justin Keene, pled no contest to petty theft with a prior (Pen. Code, § 666). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm.

In case No. VCF249671, appellant, Kenneth Robert Cizek, pled no contest to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))[1] and admitted a great bodily injury enhancement (§ 12022.7, subd. (a)). In case No. PCF203272, Cizek admitted violating his probation. In case No. PCM250853, he pled no contest to being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). On August 23, 2011, the court sentenced Cizek to an aggregate five-year prison term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm.

On March 21, 2008, appellant, Jose Madrigal Paz, was convicted of violating Penal Code section 12025, subdivision (a) for carrying a concealed weapon and placed on probation for 36 months. On September 27, 2010, an affidavit was filed alleging appellant violated his probation by committing attempted murder in an unrelated case (Merced Superior Court case No. CRM12907). On February 22, 2012, the trial court terminated appellant’s probation in the instant action and sentenced him to two years, to be served concurrently with his sentence of 32 years to life for his convictions in the other action. Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

Following an adjudication hearing, the juvenile court found that Joseph C. (the Minor) had committed the felony offense of possessing a concealed dirk or dagger (Pen. Code, § 21310), two misdemeanor offenses of violating curfew (San Diego Mun. Code, § 58.0102, subd. (A)) and one infraction for loitering (San Diego Mun. Code, § 58.05, subd. (b)(1)).
At the disposition hearing the court determined the maximum custody was three years. The court took custody of the Minor under Welfare and Institutions Code 726, subdivision (a), and imposed, but stayed a commitment to the Short Term Offender Program.[1] Based on the lack of sufficient information the court set the dagger offense as a felony, subject to a defense motion to reduce it to a misdemeanor. No such motion is in this record.

Kenneth Morgan filed a petition for a recall of his sentence in the trial court, pursuant to Penal Code section 1170.126.[1] Section 1170.126, subdivision (b) provides that a person serving an indeterminate term of life imprisonment under the "Three Strikes" law for a conviction based on "a felony or felonies that are not defined as serious and/or violent felonies . . . may file a petition for a recall of sentence . . . ."
The trial court denied the petition on the ground that Morgan had suffered a conviction for rape in concert with force and violence (§ 264.1), and thus was not eligible for resentencing pursuant to section 1170.126, subdivision (e)(3).[2]
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Morgan filed a supplemental brief seeking reversal. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

On counts one and two, a jury convicted defendant David Thomas Crego of lewd and lascivious acts with a 15-year-old child. The trial court declared a mistrial on count three. Nonetheless, the trial court had instructed the jury that if the jury determined, either beyond a reasonable doubt or by a preponderance of the evidence, that defendant committed the act alleged in count three, the jury could consider that act in determining whether defendant was disposed or inclined to commit the offenses charged in counts one and two.
Defendant challenges that instruction, claiming it violated his federal due process rights because the trial court did not conduct an Evidence Code section 352[1] analysis, and because the instruction improperly included references to both the beyond-a-reasonable-doubt standard and the preponderance-of-the-evidence standard.
We conclude the trial court did not commit instructional error. We will affirm the judgment.

Appellant Robert Lawrence Huffman Smith appeals from his convictions in two criminal cases. The sole basis for his appeal is that the trial court improperly denied, in each case, his motion to suppress certain evidence under Penal Code section 1538.5. We affirm.

GCP Management, LLC, as agent for GCP, Gibraltar Capitol Fund, VI, LLC (GCP), appeals the summary adjudication of its action for inverse condemnation as well as the subsequent grant of a nonsuit with respect to its claim of trespass. In addition, GCP contends that the trial court’s ruling in favor of the City of Oakland (City) on the City’s cross-complaint for damages was error. We affirm.

Alan R. Good (Good), as personal representative of the estate of Dora G. Good,[2] maintained causes of action, among others, for elder abuse, negligence, and breach of fiduciary duty against defendant Schuh Enterprises, Inc., (Schuh), who provided nonmedical companion care to the elderly Dora and her husband Bruce Good, both now deceased. In this appeal, Good claims the trial court erred in granting summary adjudication in favor of Schuh on the cause of action for elder abuse and on all claims for punitive damages, and also erred in determining, on Good’s subsequent motion for judgment, that Schuh was not liable either for negligence or a breach of fiduciary duty. As discussed below, we conclude these rulings were correct, and affirm the challenged order and judgment.

Plaintiff and respondent Rachel Goss has sued her employer, defendant and appellant Ross Stores, Inc. (Ross), for alleged Labor Code and wage order violations for failing to provide “suitable seats” for cashiers. Goss asserts claims on her own behalf, including for injunctive relief under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL), and class claims a “representational” claim under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA). Ross moved to compel arbitration of Goss’s individual claims, claiming she waived any right to pursue class and in a representational claims. While the trial court concluded Goss entered into a binding arbitration agreement, it also concluded her waiver of representational claims was unenforceable and she could not be compelled to arbitrate her claim for injunctive relief. The court therefore denied Ross’ motion. We conclude AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ [131 S.Ct. 1740, 179 L.Ed.2d 742] (Concepcion ) is controlling and requires reversal.[1]

In April 2012, a petition was filed alleging that X.V., a minor (17 years old at the time of the petition’s filing), came within the provisions of Welfare and Institutions Code section 602. (The minor was already a ward of the court.) The petition charged the minor with felony possession of a dirk or dagger and misdemeanor resisting a peace officer. The charges arose out of an incident in which the minor was congregating near school with several other young people who were believed to be students; one of them appeared to be smoking marijuana from a pipe. After police detained the minor and the other young people, a pat search of the minor resulted in the police finding a folding knife concealed on his person. The minor filed a motion to suppress this evidence under Welfare and Institutions Code section 700.1, which was denied. After the minor admitted the two charges alleged, the court sustained the petition and adjudged the minor to continue to be a ward of the court. He was ordered to remain in the custody of his parent under the same conditions of probation previously imposed.

After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187) for Townley's shooting of Javier Lazaro in Santa Cruz on February 17, 2006. This court reversed the judgments against both defendants, finding error in the superior court's refusal to permit trial counsel to show their clients a sealed declaration by a prosecution witness attesting to his own participation in an attempted murder, along with a sealed transcript of the witness's plea agreement proceeding. We held that the trial court had deprived defendants of their Sixth Amendment right to effective assistance of counsel by denying them access to these materials. The Supreme Court granted review. In Townley's case the holding that error had occurred was unchallenged by the People, and the high court expressed no opinion on this point. It did, however, reject this court's conclusion that the error was a structural defect subject to automatic reversal under Perry v. Leeke (1989) 488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for that purpose. (People v. Hernandez (2012) 53 Cal.4th 1095.)