CA Unpub Decisions

This contentious child custody battle between petitioner Sean Fitzgerald (husband) and respondent Ivory Fitzgerald (wife) comes to us after several years of litigation, mostly on the same issues -- wife seeking additional custody and visitation time with their son, B. F., and husband seeking to impose supervision on her visitation because she does not meet B. F.’s needs and presents a risk of abducting the child to the Philippines.
The appeal arises from the trial court’s 2017 decision (2017 decision) in response to husband’s motion to modify the final child custody and visitation orders included in the 2014 judgment dissolving the marriage (judgment). Husband asserts three arguments on appeal: (1) the trial court erred in granting wife’s motion in limine precluding husband from introducing any evidence regarding wife’s alleged rape of husband’s son from a prior marriage, M. F.; (2) the trial court erred in failing to consider and appoint minor’s counsel for B. F.;

Police pulled over defendant Jermaine Rivers for a vehicle infraction in front of his home. Codefendant Kevin Khem, who was on searchable postrelease community supervision (PRCS), was defendant’s passenger. After defendant said Khem slept on his couch and kept some of his belongings in defendant’s room, police searched defendant’s home and found a firearm inside a dresser in defendant’s bedroom.
Defendant moved to suppress the gun, arguing that the search of his bedroom dresser exceeded the scope of Khem’s PRCS search condition. After both the preliminary hearing magistrate and the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant pleaded guilty to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and admitted a strike prior (§§ 1170.12, subd. (b), 667, subd. (d)). The court sentenced him to four years in state prison.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 and In re Kevin S. (2003) 113 Cal.App.4th 97. Having reviewed the record as required by Wende and Kevin S., we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

A.V. (the minor) appeals from the juvenile court’s dispositional order reaffirming his status as a ward of the court (Welf. & Inst. Code, § 602) and vesting discretion in his probation officer to potentially require him to serve up to 135 days in the juvenile hall as part of the minor’s commitment to a camp rehabilitative program. The minor argues the juvenile court should have confirmed compliance with section 241.1 (a procedure for addressing dual jurisdiction in dependency and delinquency court) prior to his dispositional hearing and “the juvenile court’s order imposing a condition of probation on [the minor] suspending or staying a 135-day[] commitment in the juvenile hall that can be summarily enforced by the probation officer is an unlawful stayed or suspended commitment and must be stricken.” (Emphasis Omitted.)

A jury convicted defendant Devonnae Cox on two counts of robbery (Pen. Code, § 211) and found true an enhancement allegation for personal use of a firearm (§ 12022.53, subd. (b)). The trial court sentenced him to 13 years in state prison.
Defendant now contends we must remand the matter for a new sentencing hearing because Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, §§ 1 & 2) (Senate Bill 620), which became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal. The People agree and so do we. We will remand for resentencing.

Ashley M. Naghash appeals from the trial court’s entry of judgment dismissing her complaint as to defendant Terry Richards for failure to bring her action to trial within five years as required by Code of Civil Procedure section 583.310. Because she has demonstrated no error in the trial court’s decision, we affirm the judgment.

This is defendant’s second appeal after he was convicted of numerous sex-related crimes, including four counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) when he was 15 years old (counts one through four). In his first appeal, we affirmed the judgment but remanded for resentencing as to counts one through four because the aggregate sentence imposed on those counts--100 years to life--constituted cruel and unusual punishment in violation of the Eighth Amendment. We also ordered the trial court to correct errors in the abstract of judgment. (People v. Jones (Sep. 10, 2015, C076049) [nonpub. opn.] (Jones).)

Plaintiff Berenice Thoreau de la Salle is among the host of mortgagees who have defaulted on their loans since the Great Recession of 2008 (remaining in her home for nearly 10 years without making any payments for it). In this preforeclosure action, plaintiff appeals in pro se contending the trial court erred in sustaining without leave to amend the demurrer to her latest pleading. We affirm the judgment.

In our prior opinion in this case we decided that if a defendant admits prior prison term allegations (Pen. Code, § 667.5, subd. (b)) before the passage of Proposition 47 and is sentenced after its passage, those allegations—based on convictions now deemed misdemeanors pursuant to Proposition 47—were still valid. Thereafter, the Supreme Court granted defendant’s petition for review and ultimately transferred the case with directions for this court to vacate our prior decision and to reconsider the cause in light of the recently decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks). (See People v. Dazo (Jan. 26, 2016, C078836) [nonpub. opn.], review granted Apr. 13, 2016, S232486, and ordered vacated and transferred Sept. 19, 2018.) Applying Buycks, we conclude such prison priors are invalid.

Defendant Christopher Stephen Carter challenges a victim restitution order requiring him to pay restitution to the victim’s husband who was not her spouse at the time of the crimes. We reverse the trial court’s order.
After sentencing defendant for committing numerous sex crimes against A.G., defendant’s stepdaughter, over a 12-year period, the trial court ordered defendant to pay victim restitution to A.G.’s husband, Austin. A.G. was not married during the time she was molested, but she was married at the time of trial. Austin accompanied her to California from out-of-state for the trial. Once here, in addition to attending trial, he transported her to and from the airport, court, various meetings with the prosecution team, and a counseling session. He requested, and was awarded, $2,480.11 in restitution for the costs associated with his travel and lost wages.

Plaintiff and appellant S. Simon Levi alleged over 65 attorneys, judges, elected officials, investigators, individuals, and corporations engaged in unethical practices, fraud, and political corruption in matters involving the California State Bar and the California Bar Foundation. He also alleged a group of the defendants conspired to press false criminal charges against him and interfere with the exercise of his constitutional speech rights because of the corruption he uncovered, resulting in an unlawful search of his home pursuant to an invalid warrant.

“ ‘Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.’ [Citation.] When a public use results in damage to private property without having been preceded by just compensation, the property owner may proceed against the public entity to recover it. Such a cause of action is denominated ‘inverse condemnation.’ ” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 737.)
Plaintiffs Richard Downs, as trustee of the Baker 1982 Trust-JMB, and W. Jaxon Baker, as trustee of the Baker 1998 Trust-KJB, (collectively plaintiffs) who own property used as commercial office space, sued the City of Redding (City) for inverse condemnation arising out of a public works bridge construction project (project). The bench trial was conducted in two phases.

In 1998, Jason William Burton (Burton) shot and wounded a stranger without any provocation and tried to shoot another stranger. Facing the prospect of 75 years to life in prison, Burton agreed during trial to plead no contest to one count of attempted murder and admit a firearm enhancement in exchange for a sentence of 30 years to life in state prison.
In 2018, 19 years after being sentenced, Burton filed a motion to withdraw his plea on the ground that he agreed in 1999 to serve a sentence of 30 years, not 30 years to life. The trial court denied Burton’s motion and this appeal followed.
We have reviewed the record, the briefing by Burton’s appointed appellate counsel, and the supplemental briefing submitted by Burton himself. We affirm the judgment.

Javier Zamudio-Arriaga appeals from the judgment entered after his guilty plea to two counts of sale of cocaine (Health & Saf. Code, § 11352, subd. (a)) and one count of possession of cocaine for sale. (Id., § 11351.) Appellant waived his right to a preliminary hearing. Pursuant to a negotiated plea agreement, the trial court suspended the imposition of sentence and placed appellant on probation for five years on condition that he serve 364 days in county jail. The trial court denied appellant’s request for a certificate of probable cause.