CA Unpub Decisions

The People charged defendant Johnny Alex Nicholson with rape of a drugged victim (Pen. Code, § 261, subd. (a)(3); statutory section references that follow are to the Penal Code unless otherwise stated), assault to commit a specified sex offense during a first degree burglary (§ 220, subd. (b)), first degree burglary (§ 459), and grand theft (§ 487, subd. (a)). The magistrate held defendant to answer on all counts except the assault charge. The People filed an information and then an amended information, which charged defendant with rape of a drugged victim (count 1), rape of an unconscious victim (§ 261, subd. (a)(4) (count 2)), assault to commit a specified sex offense during a first degree burglary (count 3), first degree burglary (count 4), grand theft (count 5), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)) (count 6)).

Tweakers may not make reliable witnesses or sympathetic defendants to juries, particularly when a corpse is buried 10 feet from a tweaker’s backyard. Indeed, methamphetamine is the main character in this murder tale. All of the prosecution’s percipient witnesses, the defendant, and Larry Lillard, the decedent, were habitual users, although they also drank alcohol, smoked marijuana, and ingested other drugs as well. Following grueling cross-examination challenging the reliability of the witnesses’ accounts that defendant had told them he buried Lillard, who he referred to as “Uncle Larry,” in the backyard, that Uncle Larry was “pushing up daisies,” that he sold Uncle Larry’s motorhome and depleted his bank account, a jury convicted defendant William Patrick Olsem of first degree murder.

In 2012, the County of Amador (County) certified a final environmental impact report (EIR) and approved the Newman Ridge Project (Project), an aggregate quarry and related facilities near Ione owned by real parties in interest Newman Minerals and others (Applicants). Ione Valley Land, Air, and Water Defense Alliance, LLC (LAWDA) filed a petition for writ of mandate under the California Environmental Quality Act (CEQA) challenging the certification and approval. The trial court granted the petition as to traffic impacts because the 2012 draft EIR did not accurately portray the data from the traffic impact study and did not disclose traffic information in a manner reasonably calculated to inform the public and decision-makers.

California’s anti-SLAPP statute provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . . shall be subject to a special motion to strike, unless the court determines . . . there is a probability that the [party] will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) Plaintiff David Roy appeals from the order denying his special motion to strike defendant Brenda Davis’s cross-complaint under the anti-SLAPP statute. We affirm the trial court’s order.

Appellant Trampolines Unlimited, Inc. (TUI) and respondent Platinum Gymnastics (Platinum) entered arbitration over a contract dispute. After the arbitrator found in favor of TUI, Platinum petitioned to vacate the award on the grounds that the contract was illegal and therefore unenforceable. The trial court granted the petition. TUI appeals the order vacating the arbitration award. We affirm.

On August 2, 2017 Victor Espino approached his sister on the street, swinging a metal pipe and threatening to kill her. He showed his sister the handle of a gun in his pocket and told her she was lucky it was not loaded. Espino then reached into his sister’s car, took cash from her purse and used the pipe to break a car window.

Carrows Restaurants Group, Inc. and Catalina Restaurant Group, Inc. (collectively Carrows) appeal an order denying their motion to compel arbitration. We conclude the language of the arbitration agreement is sufficient to apply to the current action. But we remand to determine a factual issue where time is not relative, but relevant. Did Carrows know that at the time plaintiff employee signed an arbitration agreement, plaintiff was represented by counsel? We reverse and remand.

Martin Ernesto Cervantes appeals from a judgment following a jury trial. For the reasons explained below, we affirm the judgment of conviction. We vacate the sentence imposed and remand for the trial court to determine whether to strike firearm enhancements imposed pursuant to Penal Code section 12022.53, and if an enhancement is stricken, to resentence Cervantes. We further remand for the trial court to correct certain errors in the abstract of judgment.

Defendant and appellant Scott Brian Garcia appeals his conviction for first degree burglary. Garcia argues the evidence was insufficient to support the verdict, and his motion for acquittal under Penal Code section 1118.1 should have been granted, because the People failed to establish the elements of entry and intent. We affirm the judgment of conviction, but remand to allow the trial court to correct a sentencing error.

Following a domestic altercation, defendant Tony Barrera was convicted of assault by means of force likely to produce great bodily injury. On appeal, he contends the trial court prejudicially erred by failing sua sponte to instruct the jury on the lesser included offense of simple assault. Because there was undisputed evidence defendant applied force likely to produce great bodily injury, we find the trial court did not err and affirm.

Philip Anthony Garbarino (Garbarino) challenges the issuance of a domestic violence restraining order in favor of Anne Marie Capra (Capra), asserting that the trial court lacked personal jurisdiction over him because he was not properly served. For the reasons set forth below, we reverse.

Defendant Olivia Benoit was convicted of robbery after stealing two packages of hair extensions and a can of mousse from a beauty supply store. She contends that there is no substantial evidence to support the force/fear element of robbery, that the court erroneously admitted evidence of her two prior misdemeanor theft convictions, that counsel provided ineffective assistance by failing to request a limiting instruction, and that we should vacate her sentence and remand for the court to exercise its new sentencing discretion under Senate Bill No. 1393. We agree that defendant is entitled to the benefit of the change in the law. As such, we vacate her sentence and remand for further proceedings. In all other respects, we affirm.

William Lamar Ballard and John Christopher Brown appeal from judgments of conviction for murder and attempted murder. They contend (1) insufficient evidence supported the convictions, (2) the trial court erred in determining the prosecutor had a race-neutral reason for peremptorily challenging a prospective juror, (3) the court erred in refusing to instruct on self-defense, (4) the court erred in instructing on aider and abettor liability, (5) the prosecutor committed misconduct by failing to disclose exculpatory evidence and by misstating the law during closing argument, (6) fee assessments must be vacated because the trial court made no finding regarding defendants’ ability to pay, and (7) changes in the law require resentencing Brown. We reject each contention but the last, and affirm with directions to resentence Brown.

Michael Molinaro appeals from a restraining order issued under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). We conclude the part of the restraining order prohibiting Michael from posting anything about his divorce case on Facebook constitutes an overbroad, invalid restraint on his freedom of speech. We therefore will reverse that provision and direct the trial court to strike it from the restraining order. We affirm the restraining order in all other respects.