CA Unpub Decisions

Appellant Geovanny Antonio Vargas appeals from the superior court’s denial of his petition under Penal Code section 1170.95 to vacate his first degree murder conviction. The evidence at trial established appellant was present when his codefendant fatally shot a rival gang member in broad daylight, and after the two men fled together, appellant attempted to hide the gun. The prosecution alleged that before the shooting, appellant and his codefendant were informed rival gang members were crossing out their gang’s graffiti, and appellant agreed to retaliate by committing either murder or assault. The jury was instructed that if appellant intended to aid and abet only an assault, he could be guilty of murder under a natural and probable consequences theory.

This is an appeal from judgment after defendant Marcus Geroy McGinnis entered a no contest plea to felony corporal injury to a cohabitant and admitted one prior strike offense. Defendant received a total prison term of four years, representing the two-year low term on the felony count doubled to four years for the prior strike offense. He was awarded a total of 281 days of custody credits.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (See People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he declined to exercise such right.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).
It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed.

Plaintiff Juan Ramirez and his son Juan Naranjo filed a class action lawsuit alleging various wage-and-hour claims and violations of California’s Unfair Competition Law against their former employer Pacific Bay Masonry, Inc. (Pacific Bay). Pacific Bay moved to compel arbitration pursuant to the arbitration provision contained in the plaintiffs’ employment agreements. The trial court granted the motion as to Naranjo only. In denying the motion as to Ramirez, the trial court found that the arbitration provision contained “minimal” substantive unconscionability, but “significant” procedural unconscionability.
In this appeal, Pacific Bay challenges the denial of its motion to compel arbitration as to Ramirez.

We place the issue on appeal in context by starting with the January 2019 hearing that occasioned our remand in Jaimes-Mendoza I.
January 2019 Hearing
The evidence presented at the three-day hearing on defendant’s request for outpatient status is described in detail in Jaimes-Mendoza I. (See Jaimes-Mendoza I, supra.) In brief, there was uncontradicted testimony that defendant had shown no signs or symptoms of mental illness since he had been hospitalized, he had no incidents of aggression or other concerning behavior since hospitalization, he participated in substance-use-disorder-related meetings, he was willing to work with CONREP, and he had recently been in contact with his family, who could provide him some emotional support in the community.

We place the issue on appeal in context by starting with the January 2019 hearing that occasioned our remand in Jaimes-Mendoza I.
January 2019 Hearing
The evidence presented at the three-day hearing on defendant’s request for outpatient status is described in detail in Jaimes-Mendoza I. (See Jaimes-Mendoza I, supra.) In brief, there was uncontradicted testimony that defendant had shown no signs or symptoms of mental illness since he had been hospitalized, he had no incidents of aggression or other concerning behavior since hospitalization, he participated in substance-use-disorder-related meetings, he was willing to work with CONREP, and he had recently been in contact with his family, who could provide him some emotional support in the community.

On November 6, 2020, McNamara was arrested for driving under the influence (DUI). The arresting officer drove McNamara to a friend’s house and issued a citation. McNamara signed the citation, thereby agreeing, “without admitting guilt,” to appear at an arraignment on December 8, 2020. (Boldface and capitalization omitted.)
Ten days after his arrest, but before the DUI arraignment, McNamara sought to terminate his probation in two separate misdemeanor cases. In an accompanying handwritten declaration, which he signed under penalty of perjury, McNamara stated he had “had no trouble with the law in the last 2 years 9 months or problems with probation.”
After McNamara was arraigned on the DUI charges, the Mendocino County District Attorney charged him with perjury, a felony, based on the theory that the declaration’s statement that he had “had no trouble with the law” in almost three years was false. A preliminary hearing on the perjury charge was held in May 2021.

The parties own property on a residential cul-de-sac in El Sobrante that has had a long history of soil movement and landslides. The Insalacos’ property at 71 Avenida Martinez was severely damaged in a landslide in 2017. Padilla’s property at 64 Avenida Martinez is across the street and uphill from the Insalacos’ property. The Insalacos sued a number of neighboring landowners, including Padilla, for various causes of action, including nuisance, trespass, and diversion of surface water.
Padilla’s Motion for Summary Judgment
On September 30, 2019, Padilla moved for summary judgment against the Insalacos on the grounds that his property was not the cause of the landslide on the Insalacos’ property. In support, Padilla relied on a declaration from Robert Holmer, a registered civil and geotechnical engineer.
Holmer inspected “the site” on June 7, 2018, and January 23, 2019.