CA Unpub Decisions

J.V. (mother) and J.M. (father) appeal from the juvenile court’s order terminating their parental rights over their son C.M. (born July 2014). (Welf. & Inst. Code, § 366.26.) They contend the order must be reversed because the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) We agree. We conditionally reverse the juvenile court’s order terminating parental rights and remand the matter for the limited purpose of directing the court to conduct a full inquiry and provide proper notice under the ICWA.

Following revocation of probation, Mikaela Tyrona Bolds (defendant) was sentenced to two years in county jail. On appeal, defendant challenges a probation condition requiring her to disclose her internet account passwords to her probation officer. Defendant contends this probation condition violated her right to privacy under the Fourth Amendment and was unconstitutionally overbroad. We dismiss this appeal as untimely.

Gerry Dewayne Williams appeals from an order denying his petition for resentencing under Penal Code section 1170.126, a provision enacted under the Three Strikes Reform Act of 2012 (Proposition 36). The trial court denied the petition because it found that resentencing Williams would pose an unreasonable risk of danger to public safety.
Williams contends: (1) the statutory language “unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) is unconstitutionally vague; and (2) the trial court abused its discretion and violated due process by finding an unreasonable risk of danger. We reject these contentions and affirm the order.

The Los Angeles County District Attorney’s Office charged defendant and appellant Benjamin Koziol (Benjamin) with pimping (Pen. Code, § 266h, subd. (a); count 2), and both Benjamin and his codefendant and wife Jordan Koziol (Jordan) with pandering by procuring (§ 266i, subd. (a)(1); count 3). A jury convicted defendants on both charges and found true, as to count 3, the allegation that defendants caused, induced, persuaded, or encouraged the victim, Jessica V. (Jessica), to become a prostitute through promises, threats, violence, a device, or a scheme. Jordan was sentenced to the low term of three years for count 3; Benjamin was sentenced to concurrent terms of four years for each count.
Defendants timely appealed. Benjamin argues: (1) The trial court erred in admitting evidence that he had nonconsensual sex with Jessica, and (2) The trial court improperly denied his motion for a new trial. Jordan joins in his arguments.
We affirm.

Gilda DePaz (DePaz) sued Vivian Aryeh (Aryeh) and VPMG 1772 Preuss, LLC (VPMG) (collectively, defendants) for injuries that she sustained while working at a property that Aryeh rented from VPMG.
Before trial, the parties entered into an agreement that narrowed the scope of their dispute. Aryeh and VPMG “jointly” admitted to “liability for [DePaz’s] accident” and to “causation as to [DePaz’s] injuries.” The defendants stipulated further that, while they did not dispute liability or causation, they reserved their right to contest DePaz’s claim for damages. Shortly thereafter, DePaz settled her claims against Aryeh for $300,000.
At trial, DePaz waived her claim for economic damages, limiting her claim against VPMG to noneconomic damages only. The jury awarded DePaz a total of $1.5 million in noneconomic damages. Following the verdict, VPMG argued that it was entitled to a $300,000 offset from the verdict due to DePaz’s settlement with Aryeh.

Following a jury trial, appellant Jamal Lee Gilmore was convicted of felony battery on a peace officer and misdemeanor battery on a custodial officer. He contends the prosecution engaged in racial discrimination in exercising a peremptory challenge to a prospective African-American juror; additionally, he challenges the trial court’s denial of his motion for acquittal and asserts the existence of sentencing error. In supplemental briefing, he also contends we should remand the matter for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393), which becomes effective January 1, 2019, and provides the trial court with discretion to strike enhancements for serious felony convictions. We agree with the last contention. Accordingly, we remand for resentencing, but in all other respects affirm the judgment.

Defendant and appellant Providence Health System—Southern California (Providence) challenges a judgment entered following a jury trial in favor of plaintiffs and respondents Dona Higgins, the deceased patient, and her husband, Gary Higgins. The sole issue on appeal is whether the Medical Injury Compensation Reform Act of 1975 (MICRA) $250,000 cap on noneconomic damages applies.
We conclude that MICRA would cap plaintiffs’ damages at $250,000 unless the jury found that Providence acted with recklessness. But the special verdict form was problematic in that it instructed the jury to skip the question asking whether Providence acted with recklessness, yet later asked the jury whether Providence’s recklessness was a substantial factor in causing Mrs. Higgins’s death. Because of these flaws in the special verdict, the judgment is reversed and the matter is remanded for a new trial.

Appellant Williamsburg National Insurance Company, acting through its agent Montana Bail Bonds, Inc. (collectively, the surety) posted bond for a criminal defendant who later failed to appear for trial. Bail was forfeited. In a previous appeal, we held that the trial court erred when it denied the surety’s motion for an extension of time to locate a defendant without first holding a hearing.
Upon remand, the parties stipulated to the maximum extension that would have been available under the applicable statutes had the trial court held a hearing and granted the surety’s motion: nine days. The surety did not locate defendant within that time period. The surety then moved to vacate the forfeiture and exonerate bail, arguing that the delay caused by the trial court’s previous error and the ensuing appeal interfered with the surety’s ability to locate the defendant. The trial court denied the motion, and the surety appealed.

Savoeun Soeur appeals from a judgment entered after a jury found him guilty of two counts of first degree murder and one count of premeditated attempted murder, and further found special circumstance, gang and firearm enhancement allegations to be true. The trial court sentenced him to life without the possibility of parole (LWOP) for the murders.

We reconsider this case on remand from the California Supreme Court. In our first decision in this case, People v. Diaz (2015) 238 Cal.App.4th 1323 (Diaz I), we declined in the first instance to strike defendant Robert Diaz’s Penal Code section 667.5, subdivision (b) enhancement based on a 2009 felony conviction that had been reduced to a misdemeanor under Proposition 47. In our second decision, In re Diaz (2017) 8 Cal.App.5th 812 (Diaz II), we reversed the trial court’s grant of habeas corpus relief striking that enhancement. The California Supreme court granted review in Diaz II, and later vacated our decision and directed us to reconsider it in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). Now, under Buycks, we affirm the trial court’s order striking the section 667.5, subdivision (b) enhancement based on the 2009 reclassified conviction.

Michael Edward Nelson, Jr., pleaded guilty to one count of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), to one count of possession of ammunition by a felon (§ 30305, subd. (a)(1)), and he also admitted to one prior strike conviction (§ 1170.12, subds. (b), (c)), and to one prior prison term (§ 667.5, subd. (b)). In accordance with the terms of his plea bargain, the trial court sentenced Nelson to six years and four months in prison. Nelson petitioned for recall of his sentence and resentencing. The court denied the petition.

A jury found defendant Ivan Martinez-Chavarin guilty of four felonies involving his possession of a firearm, and the trial court found that he had thereby violated his probation in a separate case. On appeal, he claims that his convictions, and therefore the probation-violation finding, must be reversed because the prosecutor committed Griffin error by commenting on the defense’s failure to produce certain evidence. We affirm.

This case involves a discovery dispute between the parties to a marital dissolution proceeding. The trial court initially denied, as untimely, Matthew W. Clarke’s motion to compel further responses to his second set of requests for production. After reconsideration on its own motion, the trial court granted the motion to compel and ordered Claudia G. Akel to pay approximately $15,000 in sanctions (Code Civ. Proc., §§ 2023.030, subd. (a), 2031.310, subd. (h)). Akel appeals, contending the trial court erred by granting the motion to compel without holding a hearing on the merits and without hearing oral testimony or admitting declarations into evidence. We affirm.

Barbara Smith appeals from a final judgment following a motion for summary judgment granted by the trial court in favor of respondent City of Richmond (City). Her complaint alleged that overgrown roots from a City-owned tree on her property had damaged her home’s sewer lines. The City denied the tree was City-owned and filed a motion for summary judgment claiming there was no genuine dispute as to its alleged ownership, and Smith had no evidence to prove the tree belonged to the City. On appeal, Smith argues the City did not meet its burden to provide evidence negating its ownership of the tree. Smith further contends the circumstantial evidence she provided, which she says the trial court improperly disregarded as hearsay, established there was a triable issue of fact as to whether the City owned the tree. Seeing no merit in these claims, we affirm the judgment.