CA Unpub Decisions

A jury found Anthony Michael Espinosa (Espinosa), a felon, guilty of possessing a firearm and ammunition and found true gang allegations. On appeal, Espinosa contends there was insufficient evidence to support the true findings on the gang allegations, that his trial counsel provided ineffective assistance, and that there is a sentencing error. We agree that the true findings on the gang allegations are not supported by substantial evidence and that there is a sentencing error. We therefore reverse the true findings and remand the matter for resentencing but otherwise affirm the judgment.

At his trial for murder, Kenneth Brice, Jr., (defendant) tried to introduce expert testimony about the “fight or flight” response to a stressful situation, here, a fight during which defendant stabbed the victim. The trial court excluded the testimony. Nonetheless, the jury found defendant guilty of the lesser offense of voluntary manslaughter. Defendant appeals, contending the court erred by excluding the evidence. He also contends the court improperly instructed the jury regarding consciousness of guilt based on flight, because he went home after stabbing the victim. We find no error and affirm the judgment.

Marcus Lawrence Walker appeals from convictions of attempted carjacking and making a criminal threat. He contends the trial court abused its discretion in admitting evidence of uncharged offenses; he was prejudiced by prosecutorial misconduct; the court impermissibly imposed double punishment; and the court abused its discretion in declining to strike a prior serious felony conviction for purposes of sentencing under the “Three Strikes” law. Additionally, based on recent statutory amendments, appellant seeks a remand to permit the trial court to consider striking the prior for purposes of a sentence enhancement that the court lacked discretion to strike at the time of sentencing. The Attorney General concedes the error with respect to double punishment. We will order that the judgment be modified to reflect that sentence on count 2 is stayed, remand the case for resentencing with respect to the enhancement, and otherwise affirm the judgment.

Appellants Tess Viceral, Cristina Cornell, and Imelda Canovas (collectively, Appellants) appeal the superior court’s denial of their petition for a writ of mandate. They claim the court (1) applied the wrong standard of review, (2) together with the State Personnel Board (SPB), whose decision it was reviewing, made a number of reversible evidentiary errors, and (3) denied them a fair administrative proceeding. For the reasons discussed below, we shall affirm the judgment.

When Hydrofarm began purchasing products directly from Superpro, rather than Sentinel, Sentinel sued Hydrofarm for tortious interference with contract, tortious interference with prospective economic advantage, and unfair competition. The trial court granted Hydrofarm’s motion for summary judgment. We affirm.

Appellant Ali Asghar Kimia was convicted following a jury trial of premeditated attempted murder, carjacking, second degree robbery, elder abuse, and assault with a deadly weapon. On appeal, appellant contends the trial court erred when it failed to (1) give a unanimity instruction on the attempted murder count, and (2) stay his sentence on the assault with a deadly weapon count pursuant to Penal Code section 654. In supplemental briefing, appellant further argues that newly enacted section 1001.36, which permits the trial court to grant pretrial diversion in certain cases in which a defendant’s mental health disorder played a “significant role in the commission of the charged offense” (§ 1001.36, subd. (b)(2)), is retroactive to cases such as his that are not final on appeal. We shall affirm the judgment.

Defendant Nazario Martin Medina appeals from a resentencing order in which the court reduced a miscalculated state prison term by one year. The new sentence reduced the miscalculated term of 14 years to the agreed term of 13 years under defendant’s plea agreement. In view of the obvious fact that defendant benefitted from the resentencing order, and that his newly calculated sentence exactly matched the state prison term agreed upon under his plea agreement, it is not surprising that defendant’s appointed counsel filed a brief under the procedures prescribed by People v. Wende (1979) 25 Cal.3d 436. Counsel did not argue against defendant, but advised the court he was unable to find an issue to argue on defendant’s behalf. Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record but have not found an arguable appellate issue. Accordingly, we affirm the new sentence.

This is an appeal from an order renewing a workplace violence restraining order by the Roman Catholic Bishop of Orange (the Church), with respect to Father Augustine Puchner and other individuals, against Patricia Jean Nichols (also known as Heaven Nichols). In an 82-page brief and a record of 2,768 pages, Nichols, in propria persona, offers seven separate reasons why the order should be reversed, none of which have any legal merit whatsoever. She also argues the trial court should not have granted the Church’s motion to declare her a vexatious litigant in 2016, an argument expressly considered and rejected in Nichols’s prior appeal in this matter. (Roman Catholic Bishop of Orange v. Nichols (Feb. 16, 2018, G054149 [nonpub. opn.] (Nichols I).) Accordingly, we affirm the order.

Plaintiff challenges the judgment entered after the trial court sustained defendants’ demurrer to the first amended complaint without leave to amend. We conclude the trial court was correct in its determination that the first amended complaint failed to state a cause of action against defendants. Further, plaintiff has not suggested how the first amended complaint could be amended to state a cause of action against them. Accordingly, we affirm the judgment.

A jury convicted appellant Michael Murry Johnson of first degree murder for the shooting death of Leonard Greenberry (Pen. Code, § 187, subd. (a); count 1). Appellant was also convicted of attempting to murder Earl Perry stemming from the same incident (§§ 664/187, subd. (a); count 2). In both crimes, the jury found true firearm enhancements (§ 12022.53, subd. (d)). The trial court found true that appellant had suffered a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). Appellant received a prison sentence of 114 years to life.

Appellant David Whitfield hit Raymond S. in the face with a beer bottle and later solicited a fellow jail inmate to murder Raymond. A jury convicted Whitfield of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2), both with enhancements for inflicting great bodily injury (§ 12022.7, subd. (a)), and also convicted him of solicitation to commit murder (§ 653f, subd. (b)). In bifurcated proceedings, the court found true the allegations that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and two prior strike convictions (§ 667, subd. (b)-(i); § 1170.12). The court granted in part Whitfield’s Romero motion and struck the oldest of Whitfield’s prior strike convictions. Whitfield was sentenced to a determinate 22-year prison term.

The named plaintiffs, former employees of defendant, brought this action asserting wage and hour claims on behalf of themselves and other similarly situated employees of defendant. The trial court denied plaintiffs’ motion for class certification. Plaintiffs appeal, asserting the claims of the proposed class are based on statutory and regulatory requirements and uniform policies of defendant, which present predominantly common issues of law and fact suitable for determination on a class basis. They contend the trial court’s decision was based on improper legal criteria and erroneous legal assumptions and was unsupported by substantial evidence. We conclude that, in denying the motion for class certification, the trial court used improper criteria or erroneous legal assumptions, which affected its analysis of whether plaintiffs’ claims and one of defendant’s defenses presented predominantly common issues, suitable for determination on a class basis. Accordingly, we reverse

N.A. (Mother) is the mother of A.A., who was six months old on the date of the challenged orders. Mother asks this court to set aside the orders of the trial court on October 30, 2018, bypassing family reunification services and setting a hearing under Welfare and Institutions Code section 366.26. Mother asks this court to remand the case with instructions to set aside the orders bypassing reunification services and setting the section 366.26 hearing, and to grant reunification services. For the reasons discussed post, the petition is denied.

Defendant and appellant Tony Valentino Carter appeals from the trial court’s order of September 13, 2018, denying without prejudice his petition for resentencing under Penal Code section 1170.18 (Proposition 47). We affirm.