CA Unpub Decisions

This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in a criminal street gang and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and Elizalde[1], guilty of the first degree murder of Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force.
On appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh’s death (Elizalde and Mota join in this argument); (2) the trial court did not properly answer the jury’s questions regarding the elements of second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Mota join in this argument); and (4) the trial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Mota join in this argument).

Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits businesses from knowingly exposing anyone to a chemical “known to the state to cause cancer or reproductive toxicity” without a warning. (Health & Safety Code[1] § 25249.6.) A private party may bring an enforcement action against a business that violates Proposition 65. (§ 25249.7.)

Defendant Isaac Joseph Campa pleaded no contest to second degree burglary (Pen. Code, §§459, 460, subd. (b).)[1] In accordance with the plea agreement, the trial court suspended imposition of sentence and placed defendant on probation on the condition that he serve eight months in the county jail.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”

This is the second appeal for defendant Timothy Tyrone Simpson who was initially convicted by a jury of sexual offenses against three minor victims and sentenced to 90 years to life, consecutive to 15 years, in prison. In the first appeal we concluded the evidence was insufficient to support the convictions for forcible sexual penetration and forcible rape as to one of the victims (victim 1) and reduced those convictions to the lesser included offenses of assault with intent to commit sexual penetration and assault with intent to commit rape (former Pen. Code, [1] § 220, subd. (a)).[2] We remanded for resentencing. (People v. Simpson (Sept. 26, 2011) H036255 [nonpub. opn.].)
On remand, the trial court imposed a total term of 33 years, which included consecutive eight year terms (twice the middle term of four years) on the two assault charges. Simpson appeals from this new sentence.
Simpson argues that the trial court erred in imposing consecutive sentences on the two assault convictions because: (1) it failed to state sufficient reasons to impose consecutive sentences as required by section 667.6, subdivision (c);[3] (2) the offenses were not separate acts supported by separate intents; and (3) trial court improperly concluded the two offenses were violent even though this court had found, in Simpson’s first appeal, there was insufficient evidence to establish that they involved force, fear or duress. Simpson further argues, to the extent his claims are deemed forfeited due to defense counsel’s failure to object below, his counsel provided constitutionally ineffective assistance.
We reject his arguments in their entirety and shall affirm the judgment.

Appellants Cherrymae Padayao and Vivica Victug (plaintiffs) were employed by respondent Island Hospitality Management, Inc. (Island Hospitality) from 1990 until 2009, when they were terminated from their positions as housekeeping supervisors at a hotel. Plaintiffs, who are both Filipino, filed a wrongful termination action alleging that Island Hospitality’s decision to terminate them was based upon their race and/or national origin. Plaintiffs’ complaint included causes of action for discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12940) and wrongful termination in violation of public policy.
Island Hospitality moved for summary judgment on the ground that the undisputed facts showed that plaintiffs were terminated for nondiscriminatory reasons: their failure to ensure that hotel rooms were clean and, in Padayao’s case, her failure to follow procedures regarding the hotel’s pet log. The trial court granted the summary judgment motion, finding that no triable issue of fact existed because plaintiffs failed to present substantial evidence showing that Island Hospitality’s reasons for the terminations were pretextual or that Island Hospitality had acted with discriminatory intent.
On appeal, plaintiffs contend that a triable issue of fact exists as to whether Island Hospitality terminated them due to their race and/or national origin. For the reasons stated below, we determine that Island Hospitality met its burden on summary judgment to show legitimate, nondiscriminatory reasons for terminating plaintiffs. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) We also determine that plaintiffs produced no substantial evidence from which it could be reasonably inferred that Island Hospitality terminated them on the basis of their race and/or national origin. (See id. at p. 360.) Therefore, we will affirm the judgment in Island Hospitality’s favor.

A modification decision.

Eldridge Chaney appeals from the denial of his petition for conditional release from civil confinement as a sexually violent predator (SVP). He contends that (1) the trial court erred by proceeding under the wrong provision of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)[1] and that his trial counsel rendered ineffective assistance by inviting the error and/or forfeiting the issue; (2) the trial court violated his equal protection rights by requiring him to bear the burden of proving his suitability for conditional release; (3) the trial court violated his procedural due process rights, his constitutional rights to privacy, the psychotherapist-patient privilege, and public policy when it ordered production of his written treatment assignments; (4) the trial court violated his due process rights when it denied his request to present “rebuttal” witnesses; (5) the cumulative effect of the trial court’s errors denied him a fair trial; (6) he is entitled to a different judge on remand; and (7) the deputy district attorney who tried the case must be disqualified on remand. We conclude that Chaney’s counsel rendered ineffective assistance by seeking relief under section 6608. We reject Chaney’s other arguments. We reverse the judgment and remand the matter for a new hearing under section 6605.

This is the second appeal in long-running and wide-ranging court battles over the failed purchase of a piece of commercial real estate in Rialto. The buyer and seller have been litigating against each other since 2006 on various theories. Peripheral parties, such as the appellant here, Robert Hernandez, have also been sucked into the whirlpool. In this case, Hernandez is suing the seller, respondent and cross-appellant Steve (Stavros) Tseheridis, for canceling the escrow on the Rialto property; Hernandez intended to buy the liquor license and the trade fixtures associated with the property, which were being sold at the same time.
The case was tried in June 2011 and resulted in a defense verdict on two causes of action – breach of contract and fraud. One of the issues is whether the case should have been dismissed for exceeding the five-year rule. Tseheridis, who won at trial, has appealed on this issue. As for Hernandez, he has appealed from the refusal of the trial court to give collateral estoppel effect to one of the earlier incarnations of this Bleak House conflict and from a jury verdict he labels “inconsistent.”
We affirm the trial court’s refusal to dismiss the case for being brought to trial too late. The record indicates that if the case went over the line, it did so because of court congestion, not because of any untoward delay by Hernandez. We also affirm the trial court’s decision not to apply collateral estoppel to the present case. The California Supreme Court has clearly stated that an arbitration decision cannot have nonmutual collateral estoppel effect.
But, regrettably, we must reverse the judgment on Hernandez’s cause of action for breach of contract. The verdict was not inconsistent; the verdict form was wrong, as a matter of law. The error appears to have originated with the trial court, not with counsel, and it clearly prejudiced Hernandez. The cause of action must be retried.

Petitioner seeks leave to file a belated notice of appeal from his May 24, 2013, conviction.
David R. Mugridge represented petitioner at trial. According to Mr. Mugridge’s declaration, petitioner reasonably expected Mr. Mugridge to file a timely notice of appeal. Due to inadvertence, Mr. Mugridge failed to do so.
On August 30, 2013, petitioner filed the instant petition for writ of habeas corpus asking leave to file a belated appeal. On October 17, 2013, this court issued an order granting the Attorney General leave to file a response limited to the issue of whether petitioner should be granted leave to file a belated notice of appeal. On November 6, 2013, the Attorney General submitted an informal response informing this court that it does not oppose petitioner’s request to file a notice of appeal more than 60 days after sentencing.
A notice of appeal and a statement in support of a certificate of probable cause must be filed within 60 days of the date of the rendition of the judgment. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304, 8.308.) Although a criminal defendant has the burden of timely filing a notice of appeal, the burden may be delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) “A criminal defendant seeking relief from his default in failing to file a timely notice of appeal is entitled to such relief, absent waiver or estoppel due to delay, if he made a timely request of his trial attorney to file a notice of appeal, thereby placing the attorney under a duty to file it, instruct the defendant how to file it, or secure other counsel for him [citation]; or if the attorney made a timely promise to file a notice of appeal, thereby invoking reasonable reliance on the part of the defendant [citation].” (People v. Sanchez (1969) 1 Cal.3d 496, 500.)

Benjamin Potter appeals from the denial of his Penal Code[1] section 1538.5 motion to suppress evidence and his subsequent plea. He contends the trial court erred in denying his motion to suppress because the warrantless search of his home violated the Fourth Amendment to the United States Constitution. Specifically, he contends there was a lack of probable cause and no exigency or emergency aid exception to the warrant requirement. He also asserts the protective sweep was impermissible because he was merely detained and that detention occurred outside his home. We will affirm.

After his suppression motion was denied, defendant Byron Lee Neal pled no contest to two counts of second degree robbery and admitted one firearm enhancement. On appeal, he contends the trial court erred in denying the motion to suppress. We will affirm.

Defendant Ever Antonio Coronado was pulled over by the California Highway Patrol (CHP) for towing another vehicle with a rope on a highway and for traveling at more than 70 miles per hour. Neither defendant nor his sister operating the towed vehicle had a driver’s license. The officer intended to issue both defendant and his sister citations for driving without a valid driver’s license and to impound both vehicles. Prior to towing the vehicles from the scene, inventory searches were conducted. In the vehicle operated by defendant, two large bags of marijuana were found in the trunk. Defendant was then arrested and charged accordingly.
In a motion to suppress evidence, defendant challenged the legality of the impoundment and resulting search. The trial court denied his motion. Thereafter, defendant pled no contest to one count of transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a). On appeal, defendant contends the vehicle he was operating should not have been impounded, and therefore, the inventory search of the vehicle was unreasonable and unconstitutional. We affirm.

A jury found defendant Cesar Cazarez Rodriguez guilty on one count of battery by a prison inmate on a noninmate (Pen. Code, § 4501.5) and one count of forcibly resisting an executive officer (Pen. Code, § 69). Defendant admitted two strike priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
Originally, the trial court sentenced defendant to 25 years to life in prison. While this appeal was pending, however, it resentenced him, pursuant to the Three Strikes Reform Act, to nine years in prison. (Pen. Code, § 1170.126.) Accordingly, defendant concedes that all issues regarding his original sentence are moot.

A jury convicted Ben Sullivan Thomas of two counts of vandalism over $400 and one count each of assault with a deadly weapon, making a criminal threat and false imprisonment by violence, menace, fraud, or deceit. It also found true the allegation that he used a deadly weapon. He later admitted that he had a prison prior conviction, a probation denial prior, a serious felony prior and a prior strike conviction. The trial court denied his motion to strike his prior strike conviction for purposes of sentencing.