CA Unpub Decisions

Convicted by jury of possessing methamphetamine and marijuana for sale (Health & Saf. Code, §§ 11378 [methamphetamine], 11359 [marijuana]), and found by the trial court to have incurred a strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), defendant Dennis Threets contends the court erred prejudicially and violated due process by admitting evidence of a prior conviction for possessing cocaine for sale (Health & Saf. Code, § 11350). He also contends that various penalty assessments were improper. We shall order the correction of the sentencing order and abstract of judgment to reflect the statute under which one assessment was evidently meant to be imposed, and otherwise affirm.

Plaintiff Curtis Vance prevailed in an administrative proceeding before the Labor Commissioner on claims for unpaid wages. Defendant Quikrete California, LLC (Quikrete), sought de novo review in the superior court. (Lab. Code, § 98.2.) At the conclusion of Vance’s case, Quikrete moved for judgment pursuant to Code of Civil Procedure section 631.8. The trial court concluded that Quikrete had demonstrated that it had complied with newly enacted section 226.2, which barred Vance from seeking compensation for “nonproductive” time or various penalties for the unpaid wages, and his remaining claims suffered from a failure of proof. Vance appeals. We must reverse the judgment and remand for proof that Quikrete has completed its obligation under section 226.2 to compensate all employees retroactively (who are so entitled) in order to claim the benefit of the statute. We accordingly do not reach the remainder of Vance’s issues.

A jury found defendant Michael Simlee Walton guilty of the murder of one victim, the attempted murder of a second victim, assault with a gun on three other victims, being a felon in possession of a gun, and receiving stolen property (the gun). The jury further found true a host of gun enhancements. The trial court sustained a recidivist allegation that the prosecution later dismissed. It sentenced him to state prison for a determinate term of 26-plus years and a consecutive minimum indeterminate life term of 65 years.
Defendant filed his notice of appeal in October 2012. The briefing originally was completed in February 2014; supplemental briefing was completed in June 2017 and February 2018. The panel as presently constituted was assigned this matter in July 2018.

L.W. (Father) appeals from a juvenile court order terminating his parental rights over minor H.W. (Minor) pursuant to Welfare and Institutions Code section 366.26. Father contends the juvenile court erred when it determined the Indian Child Welfare Act (ICWA) and related California statutes did not apply despite Father’s claim of Cherokee heritage. Father, the Los Angeles County Department of Children and Family Services (DCFS), and Minor have stipulated to a conditional affirmance of the parental rights termination order with a remand to allow compliance with ICWA and related California provisions. We accept the parties’ stipulation.

By age 15, A.P. had been charged in three petitions with theft offenses from four retail stores committed over a one year period. The juvenile court sustained the petitions, which alleged grand theft, commercial burglary, petty theft and shoplifting. She was declared a ward of the court and put in suitable placement. (Welf. & Inst. Code, § 602.)

Ronald Terry Lindsey was found not guilty by reason of insanity of assault with a deadly weapon and battery causing serious bodily injury. (Pen. Code, §§ 243, subd. (d), 245, subd. (a)(1), 1026.) He was committed to the Department of State Hospitals (DSH) for 14 years. The People petitioned to extend his commitment in 2017. Appellant contested the petition.
A jury found that appellant represents a substantial danger of physical harm to others by reason of a mental disease, defect or disorder. (Pen. Code, § 1026.5, subd. (b)(1).) The judgment extends his commitment to May 17, 2019.
We conclude that appellant’s state hospital records were properly admitted at trial. (Evid. Code, § 1280.) His treating doctor could cite facts from the records when testifying, without violating appellant’s right to confront witnesses. Further, the doctor’s face-to-face contacts with appellant, without more, support the judgment. We affirm.

Defendant Jesse Lee Stiles appeals the judgment following his convictions for possession of methamphetamine for sale and transportation of methamphetamine for sale. He contends insufficient evidence demonstrated the “transportation” element of transportation for sale in Health and Safety Code section 11379, subdivision (a) because there was no evidence of either his origin or destination. We find nothing in the statute or case law to require such evidence and we find the evidence sufficient to sustain his conviction. He also challenges the jury instruction on transportation for sale. We find that contention forfeited. We affirm.

Appellant was prosecuted as a juvenile (Welf. & Inst. Code, § 602) for inflicting corporal injury on his girlfriend (Pen. Code, § 273.5, subd. (a)). In the course of testifying at appellant’s contested adjudication hearing, the victim, B.N., made self-incriminating statements concerning an incident involving appellant that had occurred at a later date. On motion of the prosecution, the juvenile court struck and sealed that portion of her testimony.

Appellants Robert H. Bisno and Bisno Development Enterprise, LLC (Bisno) appeal from the trial court’s grant of summary judgment in favor of respondents Ryan Ogulnick (Ogulnick), Chris Lee (Lee), Dyer 18, LLC (Dyer 18), Dyer 18 Holding, LLC (Dyer Holding) and R20 Development, LLC (R20). Bisno, as Ogulnick’s attorney, entered into a real estate transaction with Ogulnick without observing the requirements of Rules of Professional Conduct, Rule 3-300 (Rule 3-300). Bisno argues on appeal that the trial court erred in failing to find a factual issue with respect to whether he rebutted the presumption of Probate Code section 16004, which governs transactions between lawyers and their clients. We find that Bisno established a triable issue of fact exists whether he rebutted the Probate Code section 16004 presumption, and reverse.

A jury found Jose Ruiz guilty of second degree murder after he stabbed and killed Patrick Ortega. Ruiz contends that his conviction must be reversed because the prosecutor, first, repeatedly referred to Ortega as the “victim” and, second, committed misconduct by misstating the law. Ruiz also contends that the trial court improperly excluded evidence and failed to give a pinpoint instruction. We reject all contentions and affirm the judgment.

Late in an evening in March 2017, F.F. and a “group of kids, like pre-teens,” were at a bus stop, along with other waiting passengers. The juveniles were throwing bottles at passing motorists, and once aboard the bus, some of them, but apparently not F.F., continued throwing objects. They appeared to be targeting one woman in particular, and one of them stated, several times, “they’re going to beat her ass.” The woman was then struck by a thrown bottle, and she “sat there and looked very shocked.” When a second bottle was thrown at her, she “yelled for help” and asked the bus driver to pull over. One of the juveniles then “stood up and threatened” the woman, walked towards her, and “grabbed a bottle and knocked” her on the head. Some of the juveniles then tried to steal the woman’s cell phone. While attempting to take her phone, the group threatened her life and called her “many, many horrible things.”

Appellant Gerald Hake appeals the trial court’s order granting a nonsuit in favor of Honeywell International Inc. (Honeywell) in the trial of his asbestos exposure from Bendix brakes in Kansas between 1953 and 1962. Hake argues the trial court erred in applying Kansas law on the issue of causation rather than Washington law, even though Hake requested the court apply California law. He further asserts that the trial court incorrectly concluded Hake could not prove causation under Kansas law. Finally, Hake argues the trial court erred in granting summary adjudication in favor of Honeywell on his claim for punitive damages.

Appellant David Eugene Gaines was sentenced to the upper term of four years for felony stalking (Pen Code, § 646.9) and consecutive terms of one year for resisting arrest (§ 148) and six months for simple assault and battery (§ 240). The court also terminated probation from Gaines’s previous case and sentenced Gaines to serve an additional consecutive term of one year, for an aggregate term of six years six months. Gaines asserts that trial counsel rendered ineffective assistance in failing to object to the imposition of consecutive terms. We affirm.

In written agreements with Bellevue Union School District and City of Santa Rosa High School District (collectively, Districts), property owner William Lechmanksi agreed to pay school impact fees exceeding those authorized by former Government Code section 65995. Lechmanski’s successor in interest, Burbank Housing Development Corporation (Burbank), paid the fees required by the agreements, then petitioned for writ of mandate and for declaratory relief, alleging the agreements were “illegal, contrary to state law, and unenforceable.” The trial court granted the petition, invalidated the agreements, and refunded Burbank $19,557.
We affirm.