CA Unpub Decisions

Four children of mother, Mandie B., and fathers Damian W. and David U., were removed from parental custody and made dependents of the court after the Riverside County Department of Public Social Services (DPSS) intervened and initiated dependency proceedings for the third time. Because each of the parents had previously received family reunification services in prior proceedings, the juvenile court denied services at the disposition hearing in the third dependency proceeding pursuant to Welfare and Institutions Code section 361.5, subdivision (b), and scheduled a selection and implementation hearing pursuant to section 366.26. Prior to that hearing, mother and father David U. made requests to modify the order denying reunification services, pursuant to section 388, which were denied. The court then terminated parental rights and mother and father David U. appealed.

On June 1, 2015, 22-year-old defendant and appellant Frank Joseph Covin was staying with his father, Prospare Landry, and his father’s girlfriend, Laurel Roberts, in a house located in an unincorporated area of Barstow. Sometime the prior evening, defendant shot both Roberts and Landry in the back of their heads and left them to die in the pools of their blood while he watched television. When police arrived he hid and a standoff ensued until he voluntarily exited the home several hours later. Defendant was convicted of two counts of first degree murder, the special circumstance of multiple murder and two firearm enhancements.

This appeal challenges an award of attorney fees under Code of Civil Procedure section 1021.5. In Limon et al. v. Garden Grove Agency for Community Development et al.; Garden Grove MXD et al. (Super. Ct. Orange County, 2009, No. 30-2009-00291597) (Limon I), Marina Limon and other residents of an RV park that was demolished in Garden Grove, as well as a nonprofit affordable housing advocacy organization, (collectively, Limon) brought an action in the Orange County Superior Court against the Garden Grove Agency for Community Development (Redevelopment Agency) before that agency, along with nearly 400 other redevelopment agencies across the state, was dissolved by the Legislature in what we have previously referred to as the “Great Dissolution.” (City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1463.)

Defendant Gregory Anderson appeals his conviction, following a jury trial, of battery with injury on a transit operator (Pen. Code, § 243.3) and misdemeanor vandalism (Pen. Code, § 594, subd. (a)).
On July 6, 2016, at 4:30 a.m., defendant emptied a fire extinguisher on a Metropolitan Transit Authority train platform, as the train was pulling into the station. Once the operator stopped the train, defendant tried to break into the locked cab of the train, succeeding in smashing the window separating the cab from the train (the vandalism). He then reached into the cab, ripping the wired radio from the control panel and taking the operator’s handheld radio from her person. The operator’s finger was injured in the struggle (the battery with injury).

A jury convicted appellant Joleen Mae Lavergne of selling, transporting, or offering to sell a controlled substance and she pleaded no contest to possessing methamphetamine (id., § 11377; count 2) and possessing a methamphetamine pipe (id., § 11364; count 3). She claims the trial court erroneously (1) conditioned giving an entrapment instruction on the admission of evidence she possessed the pipe and methamphetamine, (2) denied her motion to dismiss the charges based on a violation of her right to a speedy trial, and (3) denied her Penal Code section 1538.5 motion to suppress the pipe and methamphetamine on the ground the warrantless searches of Lavergne’s vehicle were unlawful.
Although we conclude the trial court erred in conditioning allowing Lavergne to make an entrapment defense upon admission of her possession of methamphetamine and the pipe, we conclude that error was not prejudicial. We also reject Lavergne’s other challenges to the judgment and thus affirm.

Luis C. Hernandez appeals from a judgment convicting him of carjacking and sentencing him to 33 years in prison. He contends his sentence should be vacated and the case remanded to allow the trial court to decide whether to strike a 10-year firearm enhancement under Penal Code section 12022.53 and a 5-year prior serious felony enhancement under section 667.
We conclude that the matter must be remanded to allow the trial court to decide whether to exercise its discretion to strike the prior serious felony enhancement and resentence Hernandez fully aware of its sentencing discretion. We therefore affirm the judgment of conviction, vacate the sentence, and remand for resentencing.

Following his altercation with an Uber driver, a jury found defendant William Morgan guilty of robbery. On appeal, defendant contends his conviction should be reversed to afford him a hearing under recently enacted Penal Code section 1001.36, which provides criminal defendants suffering from specified mental disorders an opportunity to enter a mental health diversion program in lieu of trial. Defendant further contends that the trial court erred by denying his Batson/Wheeler motion, abused its discretion by unreasonably limiting his trial counsel’s voir dire of the initial 25 jurors to 15 minutes, and erred by failing to instruct the jury sua sponte on the lesser included offense of assault.
We hold that section 1001.36 applies retroactively to defendant’s case and entitles him to a hearing to determine his eligibility for a mental health diversion program.

In this appeal, P.S. argues that the juvenile court erred when it failed to apply the relative placement preference pursuant to Welfare and Institutions Code section 361.3 when evaluating her grandparents’ request for placement. In the alternative, if viewing the grandparents’ request for placement through the lens of section 388 was appropriate, P.S. argues that the juvenile court erred when it found that it was not in P.S.’s best interests to be placed with her grandparents. We agree that the juvenile court erred in failing to apply section 361.3’s statutory factors when deciding the issue of placement and thus do not address P.S.’s alternative argument. Consequently, we reverse the juvenile court order denying the grandparents’ section 388 petition. We necessarily reverse the juvenile court orders terminating parental rights and designating the foster parents, Jesse and JoAnna G., as P.S.’s prospective adoptive parents.

Plaintiff and appellant Parvaneh Solaymanpour (plaintiff) appeals from a judgment and postjudgment orders in favor of defendant and respondent CA Glatt Center, Inc., dba Pico Glatt Kosher Market (defendant). Plaintiff sued defendant for negligence and premises liability, seeking damages for burns suffered at defendant’s hot food counter. After the case ended in a jury verdict in favor of defendant, the court served notice of entry of judgment on both parties. Plaintiff filed a motion for new trial, which the court denied after a hearing. One week later, plaintiff filed a motion for relief under Code of Civil Procedure section 473, subdivision (b), seeking to set aside the court’s earlier order denying her motion for new trial. The court denied the motion for relief, citing section 660 and its jurisdictional requirement that a court rule on a motion for a new trial within 60 days after notice of entry of judgment is served by mail.

PJCA-2, LP, Cinthya Ruiz, and Papa John’s USA, Inc. appeal from an order denying their motion to compel arbitration of Jason Spaulding’s employment-related claims. The trial court ruled the arbitration agreement was procedurally and substantively unconscionable and refused to enforce the agreement. Because the arbitration agreement has some procedural unconscionability, but is not substantively unconscionable, and because a court can refuse to enforce an arbitration agreement as unconscionable only where there is both procedural and substantive unconscionability, we reverse.

Mario Baguada appeals from a postjudgment order denying his motion under Penal Code section 1473.7 to vacate his 2013 conviction for conspiracy to transport marijuana (Health & Saf. Code, § 11360, subd. (a)). Appellant contends the motion should have been granted on the ground that his trial attorney provided ineffective assistance of counsel by failing to advise him of the adverse immigration consequences of his non contest plea to the charge of which he was convicted. We affirm.

Joseph Perez appeals from a judgment entered after a jury convicted him of the first degree murder of Miles Rose, second degree robbery, and possession of a firearm by a felon. As to all counts, the jury found true the special allegation the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). The jury also found true multiple firearm-use enhancements. Perez contends on appeal there was insufficient evidence to support the jury’s true finding on the gang enhancement. He also asserts remand is necessary to allow the trial court to exercise its discretion whether to strike the firearm-use enhancements imposed pursuant to section 12022.53, subdivision (d).

Craig Wood appeals from a post-judgment order of the family law court that (1) ordered him to provide the court and his former spouse, Suzanne Wood, a monthly accounting of his gross income from all sources for the previous calendar month, (2) determined Craig owed $77,504.40 in spousal support arrears for the period May 2013 through October 2015, (3) ordered Craig to pay Suzanne $2,358 in monthly spousal support, and (4) ordered Craig to pay $20,301.56 in attorneys’ fees.
Craig challenges all four components of the post-judgment order. We agree with him that issue preclusion prevented the family law court from determining his spousal support arrears for the period May 2013 through November 5, 2014 and that the court erroneously included $58,000 as income to him in determining his spousal support arrears for the period November 6, 2014 through October 2015.

Manuel Busane appeals from the judgment after a jury convicted him of two counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)) and two counts of nonforcible lewd acts on a child (§ 288, subd. (a)), and found true allegations that he committed his crimes against multiple victims (§ 667.61, subds. (b), (c)(4) & (8), (e)(4)). The trial court found true allegations that Busane suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)), and that he served five prior prison terms (§ 667.5, subd. (b)). It sentenced him to 116 years to life in prison. The court awarded Busane 1,040 days of actual custody credits and no presentence conduct credits.