CA Unpub Decisions

Senate Bill 1393, signed into law on September 30, 2018, amends Penal Code sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five year enhancements pursuant to section 667, subdivision (a), subsection (1). The new law takes effect on January 1, 2019. Appellant and respondent agree that the law will be applicable to those parties, like appellant, whose appeals will not be final on the law’s effective date. We agree. Accordingly, we affirm the conviction and remand this matter for the trial court to set a resentencing hearing after January 1, 2019, to exercise its discretion whether to dismiss the enhancement.

Edgar A. Alcazar (Edgar), a minor, allegedly suffered severe and permanent injuries when he fell from the branch of a tree located on the campus of his middle school. By and through his guardian ad litem, Edgar sued the Los Angeles Unified School District (LAUSD). A jury found in favor of LAUSD on all of Edgar’s claims.
On appeal, Edgar advances two arguments for why he is entitled to a new trial; both arguments relate to the jury selection process, which ultimately involved three venires. First, Edgar argues that the trial court erred when, following the first venire, it refused to allow counsel to make mini-opening statements to the second and third venires and prohibited counsel from referring to the specific facts of the case during the balance of voir dire. Second, Edgar contends that the trial court erred by refusing to remove two jurors for cause.
We are not persuaded by either of Edgar’s arguments. Accordingly, we affirm the judgment.

Plaintiff and respondent Timothy Atkins was incarcerated for 23 years after a jury found him guilty of murder and robbery in 1987. The trial court subsequently granted Atkins’s habeas corpus petition and vacated his conviction; the District Attorney declined to retry the case. In 2007, asserting his innocence, Atkins filed a claim for monetary compensation under Penal Code section 4900 with defendant and appellant Victims Compensation and Government Claims Board (Board), which denied his claim. Atkins challenged the Board’s denial by filing a petition for writ of mandate in the trial court. The trial court denied the petition. In a 2013 appeal, we reversed the trial court’s ruling and ordered the court to grant Atkins’s petition and order the Board to vacate its decision, hold a new hearing, and issue a written decision setting forth the decision’s factual and legal bases.

Cyrus M. Sanai, representing himself in this court, as he did in the trial court, appeals from the judgment entered after an order granting summary judgment in favor of CoreLogic Information Resources, LLC and The Irvine Company, LLC in Mr. Sanai’s long-running lawsuit alleging violations of Civil Code section 1785.25, subdivision (a), part of the California Consumer Credit Reporting Agencies Act, and title 15 United States Code section 1681s-2(b), part of the federal Fair Credit Reporting Act (FCRA). Mr. Sanai does not directly challenge the court’s order granting summary judgment. Indeed, he did not submit any evidence or file a separate statement in opposition to the motion as required by California Rules of Court, rule 3.1350(e). Instead, Mr. Sanai argues the trial court erred in a series of rulings that so affected the scope and timing of permissible discovery that reversal of the judgment is required. We affirm.

A homeowner sued a city for inverse condemnation, contending the repair and stabilization work the city performed on an adjacent hillside damaged the home and its downslope patio. Following a bench trial on the issue of liability, the trial court found that the homeowner did not carry its burden of proving that the city’s work was a “cause” or a “substantial factor in causing the damage” to the home or patio. On appeal, the homeowner argues that the trial court misapplied the law, wrongly excluded evidence, and improperly evaluated the evidence. We reject each of these challenges and affirm.

Bruce Douglas Kohler appeals an order imposing penalty assessments on a $50 lab fee (Health & Saf. Code, § 11372.5) and a $150 drug program fee (§ 11372.7) after he was convicted by plea of manufacturing concentrated cannabis (§ 11379.6, subd. (a)) and sentenced to 18 months county jail and 18 months mandatory supervision, for a total fixed term of three years. (Pen. Code, § 1170, subd. (h)(5)(B).) The trial court denied a post-sentence motion to vacate the penalty assessments, ruling that the assessments were mandatory. We affirm.

The minor, now 17-year-old G.C., appeals from an order based on her admission to a violation of probation, redeclaring wardship, and returning her to probation with custody to remain with her parents subject to numerous conditions, to two of which she objected at the disposition hearing. Her attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting this to court make an independent review of the record, and has advised G.C. of her right to file a supplemental brief, which she has not done. Having made an independent review of the record, we shall affirm the juvenile court’s order.

Defendant John Ollison appeals from the judgment following his contested probation violation hearing. Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no issues and requesting that this court review the record and determine whether any arguable issue exists on appeal. We have done so and we affirm.

B.A. Retro, Inc. (Retro) was a subcontractor on a project on which D.L. Falk Construction, Inc. (Falk) was the general contractor. Retro sued Falk for some $260,000, the amount it claimed Falk owed it. On the eve of the date set for trial Falk learned that Retro had begun work on the job at a time when it did not have workers’ compensation insurance, the effect of which was to cause an automatic suspension of its license. The trial was continued, and more pleadings ensued, including Falk’s cross-complaint for disgorgement of the $440,447 it had paid to Retro. The case proceeded to a court trial on the licensure issue, at the conclusion of which the court ruled against Retro, rejecting its claim of substantial compliance with the licensing law, and entered judgment against Retro on both its claim and Falk’s disgorgement claim. We affirm.

Plaintiff Eugene Spencer is in the business of helping to clear out foreclosed residential properties. In the instant case, he was asked to assist with an eviction and “trash-out” at a residence in a gated community. As the locksmith was in the process of drilling out the lock on the front door, the former owner shot through the door, hitting Spencer. He sued numerous individuals and entities, including the homeowners association, defendant Norris Canyon Estates Owners Association, and the security company the association hired to control access to the neighborhood, defendant Securitas Security Services USA, Inc. Spencer claims that when he passed through the security gate, the guard told him the former owners had moved out and he relied on that statement to his detriment. The trial court granted the homeowners association and security company’s motions for summary judgment, concluding there was no triable issue as to reliance. We affirm.

After a jury trial, appellant Mark Christopher Pike (Pike) was found guilty of a number of felonies arising out of his involvement in a July 2016 domestic violence incident. On appeal, Pike contends that the trial court erred in denying his motion to quash a search warrant for his cell phone on the basis that the probable cause showing in the supporting affidavit was conclusory and inadequate. Pike further asserts that the imposition of a probation report fee in accordance with section 1203.1b was improper under the facts of this case. Although we agree that the probation report fee was erroneously imposed and therefore strike it, we otherwise affirm.

Appellant Fabian Jacobo was convicted of sexual intercourse, sodomy, and lewd acts upon a child under the age of 10, his stepdaughter, J.C. He contends the trial court erred in allowing a witness to testify about J.C.’s positive test for chlamydia and in admitting the laboratory report because it was inadmissible hearsay. He further contends his sentence of 50 years to life constitutes cruel and unusual punishment under both the federal and state constitutions. We affirm.

Defendant Jose Velasquez was convicted of numerous crimes arising out of a sexual assault in Concord, committed when he was a minor. A few months before the Concord crimes, he had sexually assaulted a woman in Washington. He was subsequently convicted of the Washington crimes, and while he was serving his sentence in that state, a DNA test connected him to the sexual assault in Concord. The Contra Costa District Attorney filed a complaint against defendant while he was incarcerated in Washington, but he was not arrested and arraigned on the California charges until about nine years later, after he was released in Washington.

Tommy M., when one month shy of his 18th birthday, participated in the robbery of a young woman’s cell phone and then ran from the police when they tried to apprehend him. He was adjudged a ward of the court as a result, with true findings that he had committed a felony second degree robbery (Pen. Code, §§ 211, 212.5) and resisted arrest, a misdemeanor (Pen. Code, § 148). He claims on appeal that a police investigator violated his Miranda rights when he asked Tommy for his phone number as biographical identifying data, without administering a Miranda warning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He further claims the court erred in denying his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and denying his attorney’s simultaneous motion to withdraw as counsel due to a “conflict of interest.” He contends there was insufficient evidence to identify him as one of the robbers. With respect to disposition, Tommy argues an electronics search c