CA Unpub Decisions

In October of 2014, defendant Jon-Luc Laporte drove his vehicle into two women as they walked on a sidewalk, severely injuring them. When he shortly thereafter drove back to the scene, bystanders identified his truck to police officers, who then pursued him in their patrol vehicles. A jury found Laporte guilty of two counts of attempted voluntary manslaughter, two counts of assault with a deadly weapon, and one count of felony evasion of a peace officer. On appeal, Laporte contends that the trial court violated his due process right to an impartial judge by improperly prompting the prosecutor to elicit required testimony on the evasion count regarding the emergency lights on the officers’ vehicles. We affirm.

After threatening Latino residents of his apartment complex, defendant Richard O’Hara set fire to his own apartment. A jury convicted him of one count of arson of an inhabited structure and found true the allegation that he committed the crime because of the victim’s race. On appeal, he claims that the hate-crime enhancement must be reversed due to the individual or cumulative effect of two instructional errors, both involving the required showing of motive for the enhancement. We find no error and affirm.

Appellant Jose Simental was sentenced to prison for a term that included life without the possibility of parole after a jury convicted him of several sexual offenses against two minors. He contends: (1) the court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) there was no substantial evidence of force, violence, duress, menace or fear as to one count of Penal Code section 288, subdivision (b)(1); (3) the trial court should not have instructed the jury on a legally erroneous theory of duress with respect to section 288, subdivision (b)(1); (4) there was no substantial evidence appellant entered the home of one victim with the intent necessary to support a one-strike allegation of “aggravated” burglary under section 667.61, subdivision (d)(4); and (5) the instructions did not adequately define the intent required. We affirm.

Defendant was convicted by jury of, among other things, felony driving under the influence of alcohol with three prior DUI convictions. Defendant argues on appeal that the trial court erred by using the same factual basis both to impose the upper term for the felony DUI and to impose the prior prison term enhancements. Defendant alternatively argues his trial counsel provided ineffective assistance by not preserving the issue at sentencing. Defendant also asserts three sentencing errors which the People concede. We will modify the judgment to correct the conceded sentencing errors and affirm the judgment as modified.

S.A.M. Moving, Inc., (S.A.M.) sued a competitor, Alexander’s Mobility Services (Alexander’s), for slander, trade libel, and breach of contract after Alexander’s allegedly bad-mouthed S.A.M. to potential customers. One such potential customer was the City of Los Angeles. Alexander’s moved to strike the causes of action for slander and trade libel under Code of Civil Procedure section 425.16, the anti-SLAPP statute, on the grounds that the statements made to the City of Los Angeles furthered Alexander’s constitutional right of free speech in connection with a public issue or an issue of public interest.

Anaheim Point Healthcare & Wellness Centre, L.P. (Anaheim Point) appeals from the trial court’s denial of its motion to compel Maria Martinez to arbitrate her employment claims. Martinez opposed the motion to arbitrate on the grounds she did not speak or read English, the arbitration agreement was given to her buried among other documents, Anaheim Point did not explain the agreement to her, and failed to provide a Spanish version of the agreement. Martinez also argued the agreement was procedurally and substantively unconscionable, and Anaheim Point was not a signatory to the agreement. The court found there was “no meeting of the minds” because Martinez could not read what she was signing and therefore she was unaware she had agreed to arbitration. We reverse the order denying the motion to compel arbitration and remand for the court to determine whether it would be unconscionable to enforce the arbitration provision.

Judy Hopper Molson appeals from the trial court’s order awarding restitution to Leo Innerbichler, the victim of Molson’s elder abuse. Molson argues the following: the court abused its discretion in ordering restitution; the court erred by admitting expert testimony; and the court erred by awarding attorney fees. The Attorney General asserts we must modify the order to reflect the total amount of restitution; Molson disagrees.
As we explain below, although we conclude the trial court properly admitted expert testimony, we agree with Molson there was no “factual nexus” between Molson’s conduct and the restitution award, and consequently the court’s attorney fees award must also be reversed. Because we reverse the restitution award and fees award, we decline the Attorney General’s request to modify the abstract of judgment. We reverse the order and remand the matter.

Vincent Chavez appeals his conviction for attempted dissuasion of a witness by threat of force. He contends this conviction must be reversed because the trial court prejudicially erred in failing to instruct the jury on the entrapment defense, in relation to the attempted dissuasion charge. We reject this contention because the record discloses no basis for giving an entrapment instruction in relation to the attempted dissuasion charge. Chavez next argues the trial court improperly calculated his presentence conduct credit and requests remand for correction of the error. We agree the trial court erred in its calculation of Chavez’s presentence conduct credit and will remand for the trial court to recalculate the credit. In all other respects, we affirm the judgment.

Defendant and appellant Juan Francisco Ochoa was charged by second amended information with attempted murder, assault with a deadly weapon, and misdemeanor battery (§ 242, count 3). As to counts 1 and 2, the amended information alleged that he personally inflicted great bodily injury. (§§ 12022.7, subd. (a) and 1192.7, subd. (c)(8).) It further alleged that defendant had one prior serious felony conviction, within the meaning of section 667, subdivision (a), and sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). A jury found defendant guilty of counts 2 and 3, but not guilty of count 1. The jury also found the great bodily injury enhancement on count 2 to be not true. Defendant admitted the prior conviction allegations. Prior to sentencing, a trial court granted defendant’s motion to dismiss the prior strike conviction, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

E.R. (father) challenges the juvenile court’s order asserting jurisdiction over his daughter, A.R., under Welfare and Institutions Code section 300, subdivision (b). He contends the evidence is insufficient to support dependency jurisdiction and removal, and the trial court erred in terminating jurisdiction and awarding sole physical custody to mother. We reject his contentions and affirm.

Defendant and appellant Nicole Ariele Smith smuggled three bindles of marijuana into a prison facility in a secret compartment fashioned into a feminine hygiene pad she wore. Subsequently, she pled no contest to possession of contraband in prison (Pen. Code, § 4573.5). In return, defendant was placed on formal probation for a period of three years on various terms and conditions of probation, including an electronic device search condition. On appeal, defendant argues (1) the electronic device search condition is unconstitutionally overbroad and violates her Fourth Amendment rights, and (2) the electronic device search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We reject these contentions and affirm the judgment.

Defendant and appellant Carsene Cortez O’Neal forcibly kidnapped and inappropriately touched a 13-year-old girl. Subsequently, pursuant to a negotiated plea agreement, defendant pled no contest to kidnapping (Pen. Code, § 207, subd. (a)). He also admitted that he had served two prior prison terms (§ 667.5, subd. (b)). In exchange, the remaining allegations were dismissed and defendant was placed on formal probation for a period of three years on various terms and conditions of probation. The court suspended imposition of an upper term of eight years for the kidnapping offense, and two years for the two prior prison terms, for a total term of 10 years, in state prison.

Following a jury trial, defendant and appellant, Richard Garcia, was convicted of first degree residential burglary. (Pen. Code, § 459.) Defendant admitted one prior strike/prior serious felony conviction and one prison prior, and was sentenced to 14 years in prison.
The court denied defendant’s request to allow Dr. Robert Shomer to testify as an expert witness on the reliability of eyewitness identifications. In this appeal, defendant claims the court abused its discretion in excluding Dr. Shomer’s testimony and that the exclusion of the testimony violated defendant’s due process right to present a defense.
We find no merits to these claims and affirm the judgment.

Defendant and appellant Geavanni Chavez exposed himself to three teenaged girls in front of a liquor store. Following a jury trial, defendant was convicted of committing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1); count 1) and indecent exposure (§ 314, subd. (1); count 2). Subsequently, the trial court sentenced defendant to a total term of 18 months in state prison with credit for time served, comprised of the low term of one year on count 1, plus six months on count 2. Defendant’s sole contention on appeal is that the trial court abused its discretion in failing to grant him probation because it relied on insufficient facts in determining its sentencing choice. We find no abuse of discretion and affirm the judgment.