CA Unpub Decisions

Defendant Rene G. Boisvert seeks reversal of the trial court’s 2017 post-judgment order granting Lars Lohan, to whom plaintiff Donald DeGutz assigned his interest in the judgment in this case, the power of sale on a deed of trust. Boisvert contends Lohan’s purported lack of compliance with a 2014 post-judgment order in the same case requires reversal. Boisvert also argues that Lohan is not allowed to appear in this court to represent the interest of DeGutz because such an appearance is prohibited in federal court. We reject Boisvert’s appellate claims and affirm the trial court’s order.

The Oakland Police and Fire Retirement System (retirement system), the retirement system board, and the City of Oakland appeal a judgment granting a writ of mandate in favor of the Retired Oakland Police Officers Association, along with several system members and beneficiaries (collectively, the association) directing that master police officer-terrorism pay (MPO pay) be included in the calculation of pension benefits. Appellants contend the trial court erred in concluding that MPO pay is “compensation attached to . . . rank” as required by the Oakland City Charter for inclusion in pension benefits. We agree and therefore shall reverse the order granting the association’s petition.

Appellant, a former elementary school teacher, was convicted by a jury of 17 counts of lewd conduct with boys under the age of 14 (Pen. Code § 288, subd. (a)) and two counts of lewd conduct with a boy who was 14 or 15 when appellant was more than 10 years his senior (§ 288, subd. (c)(1)). He was sentenced to an aggregate 12-year prison term. In this court, appellant contends the trial court committed reversible errors by admitting expert testimony regarding (1) the “profile” of a sex offender; (2) the immutability of a sexual attraction to young children; and (3) the low percentage of child sex abuse allegations that turn out to be false. Appellant further contends he was prejudiced by improper remarks the prosecutor made during his closing argument. We reject these contentions and affirm the judgment.

Defendant Ruben Mercado pleaded no contest to two counts of forcible rape against two victims in exchange for the dismissal of other charges, the dismissal of four multiple victim allegations, and a 14-year prison sentence. After entering his plea and before sentencing, defendant sought unsuccessfully to recuse the Santa Clara County District Attorney’s Office (the D.A.’s Office) and to withdraw his plea on grounds that plea counsel had been ineffective. On appeal, he challenges the denial of those motions, as well as the trial court’s refusal to hold an evidentiary hearing on the plea withdrawal motion. We affirm.

The California Supreme Court transferred this case back to this court following the high court’s opinion in People v. Franco (2018) 6 Cal.5th 433 (Franco). For the reasons below, we will now affirm.

Appellant Jeremy Christopher-Edward Caswell challenges the language in a condition of his probation which required him to “[c]ooperate with the Probation Officer in a plan for psychological or psychiatric/alcohol and/or drug treatment.”

Following a contested adjudication hearing, the juvenile court made true findings on a petition filed against Trayvon C. (the Minor) under Welfare and Institutions Code section 602. The court found true one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); battery resulting in serious bodily injury (§ 243, subd. (d)); and simple battery (§ 242).
At the disposition hearing the court found the Minor to be a ward of the court and placed him on probation on various terms and conditions.

Kirby Faciane appeals from an order denying his request to dissolve a restraining order and raises two issues here. First, he contends the trial court improperly failed to consider facts relevant to the prior order in deciding whether there was a material change in the circumstances since the restraining order was entered. Second, he argues the court improperly considered inadmissible evidence in its ruling. Neither argument persuades and, accordingly, we affirm.

Aaron Wesley Thurman was convicted by a jury of first-degree residential burglary (Pen. Code §§ 459, 460; count 1); grand theft (§§ 484, 487, subd. (a); count 2); receiving stolen property (§ 496, subd. (a); count 3); and shoplifting (§ 459.5; count 4). Thurman admitted a prison prior (§ 667.5, subd. (b)).
The court dismissed count 3 and sentenced Thurman to the middle term of four years for burglary and one year for the prison prior.
Thurman appeals contending the court erred in giving CALCRIM No. 1702 regarding the liability of aiders and abettors for burglary. Thurman did not object to the instruction at trial, did not contend it was confusing and did not request any clarifying language. He now contends the instruction is misleading under the facts of this case and that counsel was ineffective for not raising the issues in the trial court.

Husband appeals from a postjudgment order denying his request to equitably offset amounts Husband must pay Wife for Wife's community property interest in profits from Husband's business by amounts Husband previously paid Wife as spousal support. Husband contends the court erred by failing to enforce a stipulation for a dollar-for-dollar offset or, alternatively, by failing to apply the doctrine of judicial estoppel to require a dollar-for-dollar offset.
We affirm the order as we conclude Husband has not established the existence of a binding stipulation. In addition, we conclude Husband has not established all the elements of judicial estoppel were met and, even if they were met, Husband has not established the court abused its discretion in declining to apply the doctrine under the circumstances presented.

Bernard I. Segal appeals a judgment denying his Code of Civil Procedure section 1094.5 petition for writ of mandate that challenged a decision by the City of San Diego (City) approving construction of a building proposed by real party in interest Playa Grande, LLC, in the community of La Jolla Shores and certifying the final environmental impact report (FEIR) for that project.

La Jolla Shores Tomorrow (LJST) appeals a judgment denying its Code of Civil Procedure section 1094.5 petition for writ of mandate that challenged a decision by the City of San Diego (City) approving construction of a building proposed by real parties in interest Bob Whitney and Playa Grande, LLC (together Playa Grande) in the community of La Jolla Shores and certifying the final environmental impact report (FEIR) for that project.

Defendant Joshua Eugene Long appeals his conviction for robbery (Pen. Code, § 211). He contends the trial court erred in failing to instruct the jury on unanimity, arguing that the jurors’ questions and failure to reach a verdict on the gun enhancement signal their disagreement as to the conduct underlying the “force or fear” element. As we explain, where, as here, there was evidence of only one discreet crime--no matter how it was committed--instruction on unanimity is not required. Accordingly, we affirm the judgment.
As we explain, post, based on intervening events, we shall remand the matter to the trial court for the limited purpose of permitting the exercise of discretion whether to dismiss the five-year enhancement previously mandated by section 667, subdivision (a).

A jury found defendants Demetrius Johnson and David Bell each guilty of three counts of robbery along with various accompanying firearm enhancements. On appeal Johnson and Bell argue remand is required to allow the trial court to exercise its newfound discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) to strike the firearm enhancements. Bell separately contends the trial court erred in imposing consecutive terms without stating reasons on the record. We will remand to allow the trial court to consider exercising its discretion under Senate Bill 620 as to both defendants. We will also modify the judgment to correct several sentencing errors as well as correct some clerical errors. We otherwise affirm.