CA Unpub Decisions

David Moorer appeals from the March 23, 2017 order denying his request for entry of a default judgment against Noble L.A. Events, Inc. (Noble), and dismissing the case. The trial court denied Moorer’s request because Moorer refused to comply with the court’s order to distribute 25 percent of the penalties to be allocated under the Labor Code Private Attorney General Act of 2004 (Lab. Code, § 2698 et seq. (PAGA)) to the 23 aggrieved employees in a pro rata amount. Instead, Moorer allocated the entire 25 percent to himself. On appeal, Moorer contends a PAGA action is a qui tam action, and therefore, 25 percent of the civil penalties should be distributed to the aggrieved employee who brought the claim. Moorer’s position is contrary to the California Supreme Court’s rulings interpreting PAGA. We affirm.

Appellant Cleotilde Chavez sued her former employer, respondent Lifetech Resources, LLC (Lifetech), alleging that Lifetech discriminated against her because of her physical disability in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, §12940 et seq.). In essence, Chavez claimed that Lifetech failed to engage with her to determine reasonable accommodations that would allow her to do her job as an assembly-line worker, failed to provide such accommodations, and then terminated her because of her disability. At trial, the jury agreed with Chavez that she was disabled and Lifetech knew of her disability, but found that her disability was not a substantial motivating reason for the termination. The jury further found in Lifetech’s favor on Chavez’s reasonable accommodation and interactive process claims. As such, the court entered judgment in favor of Lifetech on all claims.

Defendant Thomas Dale & Associates, Ltd. (TDA) appeals from an order denying its special motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute) a complaint for damages filed by Brian S. Goldstein. Goldstein’s complaint alleged causes of action for stalking and harassment. TDA contends the complaint arose from protected activity under section 425.16, and Goldstein failed to demonstrate a probability of prevailing on his claims. We affirm.

Defendant Janzen Glynn Jackson killed his mother’s boyfriend, Frank Herrera, during an altercation. He was charged with murder (Pen. Code, § 187, subd. (a)), but convicted by the jury of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)). The trial court sentenced Jackson to the upper term of 11 years in state prison. (§ 193.)
Jackson contends the trial court erred in denying his Batson/Wheeler motion challenging the prosecutor’s exercise of peremptory challenges to two Black jurors. Jackson also asserts the trial court erred in admitting for impeachment the statements police officers obtained from Jackson in violation of his Miranda rights, failing to instruct the jury on the lesser included offense of involuntary manslaughter, and denying his motion for a mistrial based on spectator misconduct. We affirm.

Minutes after shooting a close friend 10 times, appellant Cornell Arthur Allen called 911. He did not say that his life was threatened by the unarmed victim. Instead, he told the dispatcher that the victim “wouldn’t leave” and “had sex with my girl.” Shortly before the slaying, appellant discovered that his girlfriend was in a sexual and emotional relationship with the victim. She feared appellant, who was angry.
A jury convicted appellant of second degree murder, finding that he used a firearm to commit the crime. He was sentenced to 15 years to life for the murder plus 25 years to life for using a gun, for a total of 40 years to life in prison.
Appellant contends that the trial court (1) gave inadequate self-defense instructions and (2) should have allowed evidence that the victim was a drug dealer with a criminal record.

Defendant and appellant Jesus Miguel Saenz appeals from his conviction for attempted voluntary manslaughter, assault with a deadly weapon, corporal injury to his girlfriend, and other crimes. Saenz contends the trial court erred in permitting the prosecution to redact statements by Saenz that can be heard in the background during the victim’s 911 call for help before the recording was played for the jury. We find no error and affirm Saenz’s conviction. We remand the matter to the trial court for the limited purpose of determining whether to exercise its discretion to strike the serious felony enhancements under Senate Bill No. 1393.

This is the sixth appeal by Arthur Tsatryan in this marital dissolution action. His most recent appeal was from the judgment of dissolution, which we affirmed. (In re Marriage of Tsatryan (Feb. 13, 2018, B265467) [nonpub. opn.].) Arthur now appeals from two orders denying his requests to vacate the judgment, raising numerous challenges on the merits. However, as to the first request filed on November 23, 2015, because Arthur failed to serve his former spouse Polina with his request to vacate the judgment, the trial court lacked jurisdiction to consider his request. As to his second request filed on March 14, 2016, the trial court properly denied the request because it was an untimely motion for reconsideration of the earlier denial, which the trial court had considered on the merits. We affirm.

Defendant Pedro Orellana Mejia appeals from a judgment following his plea of guilty to one count of misdemeanor battery with serious bodily injury (Pen. Code, § 243, subd. (d)). He contends the trial court abused its discretion in denying his motion to withdraw his plea based on his attorney’s asserted failure to discover certain exculpatory information prior to his plea. Alternatively, he maintains he received ineffective assistance of counsel. We affirm.

A jury found Rene Gutierrez guilty of one count of committing a lewd act upon Doe 1 (Pen. Code, § 288, subd. (a); count 1), one count of first degree burglary (§ 459; count 2), six counts of committing lewd acts upon Doe 2 (§ 288, subd. (a), counts 3, 4, 5; § 288, subd. (c)(1), counts 6, 7, 8), and three counts of committing lewd acts upon Doe 3 (§ 288, subd. (c)(1); counts 9, 10, 11). The trial court sentenced Gutierrez to four consecutive terms of 25 years to life for counts 1, 3, 4, and 5 (§ 667.61, subd. (a)), and to a determinate term of 10 years for the remaining convictions. Gutierrez appeals. We affirm.

Defendant and appellant Jaime Mares was charged by information with possession of controlled substances in state prison, possession of a controlled substance for sale (heroin), possession of a controlled substance for sale (methamphetamine), and possession of a controlled substance for sale (marijuana) (Health & Saf. Code, § 11359, count 4). The information also alleged that defendant had three prior strike convictions A jury found defendant guilty on all counts. In a bifurcated hearing, a trial court found the prior strike allegations true. Upon the People’s motion, the court struck two of the prior strike convictions. The court then sentenced defendant to the upper term of four years on count 2, which it deemed the principal term, plus one-third the middle term of two years (eight months) on both counts 3 and 4, with each term doubled pursuant to the prior strike.

This is an appeal following the 2018 revocation of probation and the execution of a previously suspended seven-year prison term, which was imposed in 2017. The appeal does not challenge the revocation of probation, but instead, contends the we should remand the case for resentencing to permit the trial court to consider striking the serious felony prior conviction (Pen. Code, § 667, subd. (a)(l)) in light of Senate Bill No. 1393, which was effective January 1, 2019.
As we will discuss post, Senate Bill No. 1393 is retroactive to cases not final on appeal. In the present case, judgment was entered in 2017 when a prison sentence was imposed, but the execution stayed. The judgment was not appealed. Thus, the judgment imposing the prison term sentence was final well before the effective date of Senate Bill No. 1393. We will deny the request to vacate the sentence and remand the case for resentencing. Given there is no challenge to the probation revocation, we will affirm.

A jury found Oscar Gomez Garcia guilty of 27 separate counts involving sexual molestation of his daughter, Jane Doe, over the course of approximately 12 years, starting when Jane Doe was four years old. The trial court sentenced Garcia to an indeterminate prison term of 175 years to life, and a consecutive determinate prison term of 110 years, eight months.
Garcia contends (1) the People's two-year delay in filing a criminal complaint against him prejudicially violated his right to due process; (2) the trial court abused its discretion by admitting evidence of Garcia's molestation of his older daughter, C.; (3) insufficient evidence supports his conviction on any of the counts; and (4) we should conduct a review of Jane Doe's medical records subpoenaed by Garcia from a medical clinic to insure that the trial court properly determined that they did not contain any relevant information that should be disclosed to Garcia.

A jury found defendant Ignacio Arizaga guilty of numerous felonies. The trial court subsequently found true numerous sentencing enhancement allegations, including allegations that defendant previously served five terms in prison (Pen. Code, § 667.5, subd (b)). The trial court sentenced defendant to an aggregate term of 32 years four months, plus 14 years to life in state prison.
On appeal, defendant contends there was insufficient evidence to find true the allegation that he served a prior prison term for his conviction in Sacramento County Superior Court, case No. 00F03370 (case No. 370). The People concede the issue.
In case No. 370, defendant was convicted on two counts of felony assault. The court suspended imposition of judgment and sentence, placed defendant on five years’ probation, and ordered him to serve 728 days “in the Sacramento County Jail.” There is nothing in the record to indicate he ever violated his probation and was sentenced to prison.

Respondent Gitta Vaughan, trustee of the Christian Engel 2004 Revocable Trust (trust), sought and obtained an order approving a partition by sale of three contiguous parcels of property (property) partially owned by the trust. Appellant Randhir Heer, who owned a half-interest in the property, appeals the probate court’s order approving the partition by sale.
Citing Probate Code section 10311, Heer argues that the probate court abused its discretion by failing to consider his overbid offer to purchase the property, which he claims was more than the successful bidder’s offer. Vaughan, in turn, claims that the order is not appealable, that section 10311 does not apply, and that the appeal is frivolous, intended only to delay the underlying partition sale. She moves for sanctions against Heer.