CA Unpub Decisions

Sigfredo Concepcion shot his wife Linda in the back, causing her death, three days before their divorce was to become final. A jury convicted Concepcion of first degree murder and found true an allegation that he discharged a firearm causing a death during the commission of the crime. The trial court sentenced him to 25 years to life for the murder and an additional consecutive term of 25 years to life for the firearm enhancement, for a total of 50 years to life.

Paul Anthony Ensslin (aka Geoffrey Anthony Underdahl) was sentenced to prison for 11 years after a jury found him guilty of stealing a car and the trial court found true allegations concerning prior convictions and prison terms. Appointed appellate counsel filed a brief raising no grounds for reversal. We have reviewed the record and found no reversible error and therefore affirm the judgment.

San Diegans for Open Government (SDOG) appeals an order pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16) striking SDOG's complaint against three board members and the superintendent of Poway Unified School District (District) who were sued individually for violating the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (Brown Act) based on communications regarding the hiring of the superintendent. SDOG contends the court erred in determining: (1) the public interest exception of section 425.17 does not apply because SDOG did not establish private enforcement was necessary; (2) the claims arose from activity protected by section 425.16, subdivisions (e)(1) or (e)(2); and (3) SDOG could not establish a probability of prevailing on its single claim under Government Code section 54960.1 because the section allows actions against a legislative body, not against individuals. We disagree with each of SDOG's contentions and, therefore, affirm the order.

A jury found Sergio Lopez guilty of 46 counts of burglaries, robberies, and false imprisonment, and several carjacking counts. The crimes arose during numerous incidents over a six-month period in Riverside County. The jury was unable to reach a verdict on charges relating to one additional incident. On four carjacking counts, the jury found Lopez personally used a deadly and dangerous weapon (a knife). (Pen. Code, § 12022, subd. (b)(2).)

The juvenile court found true allegations Alberto C. (Minor) committed felony burglary (Pen. Code, § 459; count 1) and unlawfully possessed burglary tools, a misdemeanor (Pen. Code, § 466; count 2). The court adjudged Minor a ward of the court and placed him on probation with various terms and conditions.

A jury convicted Dionte Simpson of conspiracy to commit murder, murder, and possession of a firearm by a felon in connection with the 2011 murder of rival gang member Cordell King. The jury found true allegations that Simpson intentionally and personally discharged a firearm which proximately caused death, a principal personally and intentionally discharged a firearm, and the crimes were committed in association with and for the benefit of a criminal street gang. The court sentenced him to prison for a total term of 50 years to life.
On appeal, Simpson argues the trial court erred by admitting evidence of a subsequent shooting incident that resulted in Simpson's conviction for attempted murder. Simpson contends the evidence of the second shooting was more prejudicial than probative and its admission violated his due process rights under the federal Constitution. We reject these contentions.

The Orange County Water District (the District) appeals a postjudgment order awarding The Arnold Engineering Company (Arnold) approximately $615,000 in costs of proof under Code of Civil Procedure section 2033.420 based on the District's failure to admit certain fact specific requests for admission (RFAs) during discovery. The District contends the trial court erred in making the award because (1) the District had reasonable grounds to believe it would prevail on the matters at issue under section 2033.420, subdivision (b)(3), and (2) even if it did not, Arnold did not adequately substantiate its costs with admissible evidence.

This case arises under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.) and concerns the Smith Canal Gate Project (project), designed to protect certain Stockton properties against flooding. Plaintiff Atherton Cove Property Owners Association (Atherton) appeals from the denial of its mandamus petition seeking to set aside the certification of an environmental impact report (EIR) by the San Joaquin Area Flood Control Agency (Agency). On appeal, Atherton outlines purported deficiencies in the EIR, claims the EIR should have been recirculated in response to new information, and claims the Agency’s findings do not support rejecting a particular project alternative. We shall affirm the judgment denying the writ.

Defendants and appellants Private National Mortgage Acceptance Company, LLC, PennyMac Financial Services, Inc., and PennyMac Mortgage Investment Trust (collectively, “PennyMac”) appeal from orders denying successive petitions to compel arbitration of a dispute with a former employee, plaintiff and respondent Richard Smigelski. PennyMac advances a number of arguments on appeal. Of greatest significance, PennyMac argues the trial court erred in finding the parties’ arbitration agreement contains unenforceable waivers of the right to bring claims under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2699 et seq.), and erred in declining to sever the waivers and enforce the remainder of the agreement. We disagree and affirm.

Defendant Marcelo Rubio, Jr., was convicted of multiple theft offenses and admitted four prior prison term enhancement allegations. Subsequent to sentencing, the trial court redesignated two of the prior convictions on which the prior prison term enhancements were based as misdemeanors. On appeal, defendant contended the trial court erred in denying his motion to be resentenced by striking the enhancements based on that redesignation of the prior convictions as misdemeanors.

David Marshall appeals a postjudgment order denying his Proposition 36 petition (Pen. Code, § 1170.126, subd. (b)) to recall his third-strike life sentences for attempted mayhem, assault with intent to commit mayhem, and assault by means likely to produce great bodily injury. Appellant contends, and the Attorney General agrees, that the petition makes a preliminary showing that appellant is serving a concurrent, life term for a non-serious felony, i.e., assault by means likely to produce great bodily injury. (See § 1170.126, subd. (e)(1); Couzens & Bigelow, Cal. Three Strikes Sentencing (The Rutter Group 2018) § 14:3, pp. 14-4 to 14-5.) We reverse and remand with directions.

On January 7, 2018, two officers observed defendant Milton Lavender moving his hand back and forth and side to side against a park wall. When one of the officers shined a light on him, defendant dropped a spray paint can on the ground and kicked it. Defendant had fresh paint on his hands and the spray can had fresh paint on its tip. The paint on the graffiti was still wet and defendant stood in front of graffiti that was approximately six feet high and 20 feet long. It would cost approximately $472 to paint over the graffiti.

Alberto Martinez-Jara appeals from the judgment after a jury convicted him of carjacking and assault with a firearm and found true the allegation he personally used a firearm in committing the offenses. We affirm.

This consolidated appeal involves four children—J.S., D.S., S.S., and R.S. (collectively, the Minors)—who share the same parents, defendants and appellants C.B. (Mother) and R.S. (Father). Mother and Father appeal from two orders, one selecting guardianship as the permanent plan for J.S., D.S., and S.S., and one terminating their parental rights over R.S. We consider whether the juvenile court made necessary findings—either express or implied—regarding the applicability of the Indian Child Welfare Act (ICWA), and if so, whether substantial evidence supports the finding that the Los Angeles County Department of Children and Family Services (the Department) complied with the inquiry and notice obligations imposed by ICWA and related provisions of California law.