CA Unpub Decisions

Defendant and appellant Richard Danelle Durden was charged by information with identity theft by a person previously convicted of identity theft (Pen. Code , § 530.5, subd. (c)(2), count 1), possession of a falsified identification card (§ 470b, count 2), and misdemeanor resisting an officer (§ 148, subd. (a)(1), count 3). The information further alleged that defendant suffered one prior prison term. (§ 667.5, subd. (b).) A jury found defendant guilty of counts 1 and 2. However, it was unable to reach a verdict on count 3, so a trial court declared a mistrial as to that count. Defendant admitted the prior conviction as to count 1 and the prison prior allegation.

The court granted defendant and respondent, Kathy Lee Urbanek’s, Penal Code section 995 motion to set aside the information. Plaintiff and appellant, the People, appeal, contending the court abused its discretion in granting defendant’s section 995 motion. We reverse the judgment and remand the matter for further proceedings.

Defendant Tor Cleveland, his girlfriend, and a female acquaintance were "party[ing]" with Alfred S. in Alfred's home. A dispute arose during which Cleveland beat Alfred while the girlfriend stabbed him repeatedly with a pocketknife. Afterwards, the three visitors fled in Alfred's car. A jury found Cleveland guilty of assault with a deadly weapon (on the theory he aided and abetted his girlfriend's stabbing of Alfred) and carjacking. The jury also found true the allegation that Cleveland personally inflicted great bodily injury on Alfred in connection with the assault. The trial court sentenced Cleveland to 15 years in prison, consisting of 10 years on the carjacking conviction, plus a consecutive five-year enhancement based on Cleveland's admission of a prior conviction for a serious or violent felony. (Pen. Code, § 667, subd. (a)(1).) Cleveland appealed.

The trial court dismissed this action for failure to comply with Code of Civil Procedure section 583.310, which requires that an action "be brought to trial within five years after the action is commenced against the defendant" (at times, section 583.310 deadline).

Roslyn Lacher and Pamela Lacher (collectively, the Lachers) appeal from the trial court's granting of a preliminary injunction to vacate their premises temporarily to allow for fumigation of termites, as well as the award of attorney fees to the Windham at Carmel Mountain Ranch Association (the Association), which brought the suit seeking the injunctive relief. The Lachers contend the court (1) abused its discretion by granting the preliminary injunction, (2) permitted a premature request for attorney fees, (3) erroneously determined the Association was the prevailing party, and (4) improperly failed to offset attorney fees paid by settling defendants. For the reasons we explain below, we affirm.

Appointed counsel for defendant Roxanne Smaller has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will affirm the judgment.

Appellant Patrick J. appeals from orders under Welfare and Institutions Code section 366.26 terminating his parental rights to his daughter, E.J. He contends that (1) the juvenile court clerk failed to properly notify him of his right to file a writ petition challenging the referral order setting the section 366.26 hearing; (2) the purportedly defective writ advisement excuses his failure to file a writ and allows him to raise several issues from the referral hearing that would otherwise be barred, including whether the juvenile court erred by terminating reunification services without expressly finding that the Butte County Department of Employment and Social Services (Department) made active efforts to reunify an Indian family or provide him with reasonable services to meet his special needs; (3) the c

Defendant and appellant Julio Cesar Ochoa appeals from a postjudgment order denying his request to withdraw his no contest plea to one count of robbery and his admission of gun and gang enhancements. We appointed counsel to represent Ochoa on appeal. Appellant’s appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. At our invitation, appellant filed his own letter brief, raising several issues. We augmented the appellate record to include an amended abstract of judgment, filed September 13, 2018.
We have conducted an independent examination of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and have reviewed appellant’s contentions. We conclude no arguable issues exist. Accordingly, we affirm.

This is the third appeal by Eric Langford Daniels, aka Eric Andrews, arising out of his conviction for unlawful possession of a firearm by a felon. We previously affirmed appellant’s conviction in 1999. In 2015, we denied appellant’s appeal from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.)
Appellant now appeals from the trial court’s denial of his motion for a hearing under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). His counsel filed an opening brief that raised no issues and requested independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On July 24, 2018, we sent appellant a letter informing him of the nature of the brief that had been filed and advising him that he had 30 days to file a supplemental brief setting forth issues he wished this court to consider. Appellant has not filed a response with the court.

G.H. appeals from the judgment after the juvenile court declared him a ward of the court. (Welf. & Inst. Code, §§ 602, 800, subd. (a).) The court found true allegations that G.H. committed assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and personally used a firearm to commit his crime (Pen. Code, § 12022.5, subd. (a)). It ordered him committed to the Division of Juvenile Justice (DJJ) for a maximum term of nine years six months.
G.H. contends: (1) the prosecution presented insufficient evidence he committed assault with a firearm, and (2) the court abused its discretion when it ordered him committed to the DJJ. We affirm the order of wardship, vacate the commitment order, and remand.

A jury convicted Mario Alberto Valenzuela of two counts of attempted premeditated murder and one count each of assault by a prisoner serving a life sentence, assault by means of force likely to produce great bodily injury and battery causing serious bodily injury. On appeal Valenzuela contends the court improperly answered the jury’s question regarding willful intent. Valenzuela also argues his conviction for assault must be reversed because it is a lesser included offense of assault by a life prisoner and remand for resentencing is necessary to allow the trial court to exercise its discretion under new law, effective January 1, 2019, to strike or dismiss the prior serious felony convictions for sentencing purposes. We reverse the conviction for aggravated assault, remand for resentencing and in all other respects affirm.

Appellant David Hopkins sued the Los Angeles Unified School District alleging age discrimination in violation of Title VII of the Civil Rights Act of 1964. The trial court sustained the District’s demurrer without leave to amend, concluding that Hopkins had not exhausted his administrative remedies. We reverse.

Leondre Nesby appeals from a judgment of conviction of six counts of second degree robbery and other offenses in connection with the May 2015 robberies of two medical marijuana dispensaries. The jury also found true multiple firearm-use allegations. Nesby’s only contention on appeal is that we should remand to allow the trial court to exercise its discretion to strike the firearm-use enhancements under Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h). The People concede, and we agree. We affirm the judgment of conviction, but remand for resentencing for the trial court to decide whether to strike the firearm-use enhancements.

Masayuki Arikawa appeals from the judgment entered after the trial court granted summary judgment in favor of Nikkei Senior Gardens (Nikkei), Seniority Inc., and two of Nikkei’s employees, Michael Motoyasu and Gabriela Perez, in Arikawa’s action for wrongful termination, retaliation for making wage-related complaints and related employment claims. Arikawa contends the court erred in denying his request for a continuance of the summary judgment hearing to permit him to obtain a transcript of Motoyasu’s recently completed deposition and his request at the hearing for leave to amend his complaint. He also argues triable issues of material fact existed as to some of his claims. We affirm.