CA Unpub Decisions

A jury convicted Charles Anthony Brooks of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) after he stole some power cords from a frightened sandwich shop patron. In this appeal, he argues that the trial court erred in failing to provide him with a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to determine whether he should be appointed substitute counsel based on his concerns about his appointed attorney’s performance. Further, he contends that the evidence was insufficient to support his robbery conviction and the court erred in declining to instruct the jury on attempted robbery. We conclude that his arguments lack merit, and we therefore affirm.

Defendant Travis Springer pleaded guilty to sexual abuse of a minor and was sentenced to 12 years in prison. In a prior appeal, he argued that the trial court erred in failing to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We agreed, and we therefore conditionally reversed the judgment and remanded for the trial court to hold such a hearing. (People v. Springer (Aug. 21, 2020, A158263) (Springer I) [nonpub. opn.].) On remand, the court held the hearing and denied the Marsden motion.
Springer appealed again, arguing that the trial court abused its discretion by refusing to continue the hearing and by denying the Marsden motion. We disagree and accordingly affirm.

Plaintiff Tiffany Aveau appeals a judgment in favor of defendant 23 Bottles of Beer, LLC, doing business as Russian River Brewing Company (Russian River), after the trial court granted Russian River’s motion for summary judgment in Aveau’s action for a common law claim of wrongful termination in violation of public policy. Aveau contends the court erred by using the incorrect statute of limitations to conclude her cause of action was time-barred. Russian River maintains the cause of action was properly dismissed as untimely; Aveau had not pleaded a claim for common law wrongful termination. Because we conclude Aveau’s complaint adequately alleged facts apprising Russian River of her cause of action for wrongful termination in violation of public policy, it was therefore timely filed; the trial court erred in summarily adjudicating this cause of action.

Following a jury trial in this case involving two victims, defendant Gabriel Lee Owen was found guilty of two counts of forcible penetration by a foreign object, four counts of possession of a firearm by a felon, and one count each of forcible sodomy, misdemeanor sexual battery, and possession of ammunition by a felon. Defendant appealed, contending (1) the trial court erred when it admitted evidence of five instances of uncharged misconduct, which was not admissible under Evidence Code sections 1101, 1108, 1109, and/or section 352; (2) defense counsel’s failure to object to certain inadmissible evidence and request an instruction limiting the uncharged misconduct evidence to the victim to whom that evidence pertained deprived him of the effective assistance of counsel; and (3) the cumulative prejudicial effect of the errors deprived him of a fair trial.

Plaintiff and appellant Mazen Arakji appeals an order sustaining a demurrer without leave to amend in this civil discrimination and harassment action against his former employer, defendant and respondent Goodwill of Silicon Valley (Goodwill). The trial court ruled that Arakji’s entire complaint was barred by the claim preclusive effect of an earlier small claims action Arakji had brought against Goodwill. The trial court also decided the preclusive bar could not be cured by amendment to the complaint.
On appeal, Arakji contends that his claims are not barred because the causes of action he asserted in his prior small claims lawsuit are not embraced within the instant action and do not allege violations of the same primary rights.

Marilyn Kay Edge is serving a sentence of life without the possibility of parole as a result of her 2015 guilty pleas to two counts of first-degree murder (Pen. Code, § 187, subd. (a)), and her admission at the same time that she committed multiple murders (§ 190.2, subd. (a)(3)). In 2021, Edge petitioned the court for resentencing pursuant to section 1170.95. That petition was denied in September of 2021. Edge now appeals from the trial court’s denial of her petition.
We appointed counsel to represent defendant on appeal. After conducting her analysis of potential appellate issues, counsel has informed us in her declaration that she has reviewed the appellate record, as has an attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.

This is a companion petition to the direct appeal in People v. Vasquez, G060006, which we judicially notice and file concurrently herewith. As explained in that opinion, the substantive issue presented is whether the trial court had the authority to reduce petitioner’s 25-year-to-life firearm enhancement under Penal Code section 12022.53, subdivision (d) to a lesser enhancement under that section. As a procedural matter, we must also decide whether petitioner forfeited his right to have the firearm enhancement reduced because, although he asked the trial court to strike the enhancement altogether, he did not alternatively ask the court to reduce it to a lesser one.
While the appeal was pending, the California Supreme Court decided the substantive issue in petitioner’s favor in People v. Tirado (2022) 12 Cal.5th 688, so only the forfeiture issue remains.

This case concerns the unconsummated sale of real property that fell through during escrow. Defendant Verdi Tanriverdi, as trustee of the Quartz Trust and Fireside Circle Trust, the seller, agreed to sell certain real property to plaintiff Kingsland Investment LLC, the buyer. As required by their agreement, plaintiff transferred an initial deposit of $52,140 to the escrow agent. Plaintiff later exercised its rights to cancel the purchase agreement and sought the return of its deposit. Defendant disagreed, arguing he was entitled to the deposit as liquidated damages because plaintiff could not cancel the agreement. Plaintiff then initiated the instant action, and defendant filed a cross-complaint. Both parties argued they were entitled to the deposit.

Appellant Jose Rincon Vasquez appeals from a judgment sentencing him to prison for 50 years to life for murdering a rival gang member with a firearm. On appeal, he contends the matter must be remanded for resentencing because the trial court failed to consider reducing one of his sentencing enhancements to a lesser enhancement. In light of the Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), we agree. We therefore reverse appellant’s sentence and remand the matter for a new sentencing hearing. In all other respects, we affirm the judgment.

Defendant Charles Oscar Sabbath, previously convicted of first degree murder, first degree robbery and first degree residential burglary, and serving two consecutive 25-years-to-life prison terms, appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.95 (Petition). He acknowledges he was a major participant in the underlying robbery which led to two people being killed, but contends the trial court erred in finding he acted with a reckless indifference to human life, rendering him ineligible for resentencing. We disagree. At the evidentiary hearing concerning the Petition, the trial court considered all the testimony from defendant’s trial, including the testimony defendant gave in his own defense.

Shohei Lambert (appellant) pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The parties stipulated appellant was not guilty by reason of insanity (NGI), and the trial court ordered appellant committed to the Department of State Hospitals (DSH).
On appeal, appellant contends the trial court incorrectly calculated his custody credits, and therefore erred in denying his motion to dismiss because his maximum term of commitment had expired. Respondent concedes the trial court should have granted the motion to dismiss because appellant’s maximum term of commitment had expired regardless of how credits were calculated. We agree with the parties and remand the matter to the trial court with directions to grant appellant’s motion to dismiss.

Appellant Teresita A. Andres filed this appeal to challenge a July 9, 2020 judgment of nullity of marriage and a March 10, 2021 order denying her motion for reconsideration of the judgment.
First, we conclude the appeal is timely as to the order denying the motion and is untimely as to the judgment of nullity because the appeal was filed more than 180 days after entry of the judgment. (See Cal. Rules of Court, rule 8.104(a).) Second, we conclude the filing of the judgment while the motion for reconsideration was pending divested the trial court of jurisdiction to rule on the motion. Third, the record on appeal, which does not contain a copy of the motion or the opposition, is inadequate to determine whether the motion for reconsideration should be characterized as another type of motion over which the trial court would not have been divested of jurisdiction.
We therefore affirm the judgment and order.

Appellant Jaime Ignacia Estrada, a self-represented inmate at Kern Valley State Prison, appeals the dismissal of his petition for dissolution of marriage. Respondent Maria Ortega did not appear in the superior court or in this appeal.
Estrada’s petition was dismissed after he failed to appear at a December 8, 2020 case management conference and a subsequent hearing on an order to show cause. The trial court’s order stated the inmate locator of the Department of Corrections and Rehabilitation (CDCR) did not show Estrada was in custody.
On appeal, Estrada has demonstrated that he has been in prison since 1994, that his imprisonment was good cause for failing to appear at the case management conference, and that the trial court abused its discretion in dismissing his petition.
We therefore reverse the order of dismissal.

Appellant Nancy Rodriguez appeals from the superior court’s order denying her request for reconsideration of her Penal Code section 1170.95 petition to vacate her sentence for voluntary manslaughter. Finding the issues appellant raises in the appeal are moot, we dismiss the appeal.