CA Unpub Decisions

For purposes of the worktime credit limitation contained in section 2933.1 of the Penal Code, can a trial court make the finding a person other than an accomplice was present in the residence, which is necessary to turn first degree burglary into a “ ‘violent felony’ ” within the meaning of section 667.5, subdivision (c)(21), without running afoul of a defendant’s Sixth Amendment jury trial right as set out in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Alleyne v. United States (2013) 570 U.S. 99 (Alleyne)? We conclude the answer is yes. We emphasize, however, that our holding is a narrow one, confined to the issue before us, and should not be read to suggest judicial factfinding would be permissible in the context of, for example, imposing a sentence enhancement or sentencing under the Three Strikes law.

Following a jury trial, appellant Tye Glenn Champ, Jr., was found guilty of count 4, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and count 5, misdemeanor vandalism (§ 594, subd. (a)(3)). A mistrial was declared on count 1, attempted murder (§§ 664/187, subd. (a)) and count 2, assault with a semiautomatic firearm (§ 245, subd. (b)), and those charges were subsequently dismissed. He was acquitted of count 3, cruelty to an animal (§ 597, subd. (a)). As a third striker, Champ was sentenced to 25 years to life, plus a concurrent term in the form of credit for time served.
On appeal, Champ contends the trial court erred when it refused an instruction on entrapment by estoppel as a defense to the gun possession charge, and instructions on the right to defend property and necessity defense on the vandalism charge. We affirm.

Eduardo Flores challenges his convictions for attempted murder with deliberation and premeditation, assault with a firearm, two counts of shooting at an inhabited dwelling, negligent discharge of a firearm, possession of a firearm by a felon, and misdemeanor receipt of stolen property.

On March 27, 2017, a petition under Welfare and Institutions Code section 602 alleged defendant and appellant M.B. (Minor; a male, born 12/2000) committed assault with a firearm under Penal Code section 245, subdivision (a). In exchange for a dismissal of that count, Minor admitted making a criminal threat under Penal Code section 422. On April 19, 2017, Minor was declared a ward of the court under Welfare and Institutions Code section 602 and placed on formal probation in his mother’s custody.
On June 30, 2017, the People filed a new petition charging Minor with possession of a firearm by a felon under Penal Code section 29800, subdivision (a) (Count 1); possession of a firearm by a minor under Penal Code section 29610 (Count 2); and possession of live ammunition by a minor under Penal Code section 29650 (Count 3). The petition alleged that all three crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang.

Maher Younan (Maher) and his wife, Nadia Younan (Nadia) (collectively the Younans) brought this action against respondents CIT Bank, N.A (CIT) and Southland Home Mortgage, LLC (Southland), among other defendants. In the operative first amended complaint, the Younans claimed that CIT breached an oral agreement not to conduct a foreclosure sale of their home and that Southland wrongfully obtained title to the home at the unlawfully held foreclosure sale.
The trial court sustained Southland's demurrer to the complaint without leave to amend, and entered a judgment of dismissal in its favor. The trial court subsequently granted CIT's motion for summary judgment and entered a judgment in favor of CIT. On appeal, the Younans claim that the trial court erred in sustaining Southland's demurrer without leave to amend and in granting CIT's motion for summary judgment.

Ghani Kothawala, a used car dealer, defrauded Enrique Medina into buying a 2003 vehicle with an odometer that had been rolled back from 267,000 to 88,000 miles. After a bench trial, the court entered judgment against Kothawala and his corporate entity, Dormouse Enterprises, Inc., (collectively Kothawala) for $14,536.80 plus costs and attorney fees.
Kothawala appeals from the judgment, asserting the court (1) was biased against him, (2) ignored written evidence, and (3) erroneously imposed personal liability for the corporate entity's conduct. There is no reporter's transcript and no settled or agreed statement. Kothawala has not transmitted to this court any trial exhibits, and his brief cites no legal authorities and contains no citations to facts in the record. We affirm the judgment. We also grant Medina's motion for sanctions because this appeal is frivolous.

Joseph Mariano appeals from a postjudgment order awarding United Parcel Service, Inc. (UPS) $52,870.50 in attorney fees incurred defending against Mariano's claims for disability discrimination, harassment, and retaliation under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). Mariano contends we must reverse the order because the trial court erred in finding his FEHA disability claims were objectively without foundation when brought. Alternatively, he contends we must reverse and remand the order for further consideration because the court did not properly apportion the requested fees to either (1) those incurred after the dismissal of his nonfrivolous FEHA age discrimination claim, which he estimates to be no more than $26,094; or (2) those incurred solely in defense of the FEHA disability claims, which he estimates to be no more than $2,500.

Appointed counsel for defendant Deandrea Jovell Farlow asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

September 2016, a jury convicted defendant Isaac Emillano Hernandez of felony infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 1), misdemeanor vandalism (§ 594, subd. (a); count 2), and misdemeanor child endangerment (§ 273a, subd. (b); count 3).
In December 2016, the trial court suspended imposition of sentence and granted defendant five years’ formal probation, including 364 days in county jail for count 1, 364 days in county jail concurrent for count 2, and 364 days in county jail concurrent for count 3. The trial court also imposed “a restitution fine in the amount of $400,” and a corresponding $400 probation revocation fine suspended unless probation is revoked. (§§ 1202.4, subd. (b), 1202.44.) The trial court additionally imposed a restitution fine of “$150 for each of counts two and three.” (§ 1202.4, subd. (b).)

Defendant Corderro Donte Miller appeals from a judgment entered after jury verdicts finding him guilty of: (1) inflicting great corporal injury on a parent of his child, with a finding of true to the special allegation that in the commission of this offense he inflicted great bodily injury on the victim; (2) forcible sexual penetration with a foreign object; and (3) child endangerment. The jury found defendant not guilty of assault with a firearm and two counts of making criminal threats (§ 422). It determined the use enhancements associated with these counts were not true. Defendant contends the judgment must be reversed because: (1) the prosecutor’s closing argument impermissibly lowered the burden of proof violating the Sixth and Fourteenth Amendments and (2) the trial court’s failure to sua sponte instruct on lesser included offenses resulted in a miscarriage of justice.
We affirm.

Amador Gudino fell to his death while working on the framing of defendant Bhupinder Kalkat’s new house. Gudino’s widow, individually and as guardian ad litem for her children (the heirs), brought suit for damages against Kalkat. Kalkat successfully moved for summary judgment, on the grounds that he had no liability as the employer of an independent contractor under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, which limit employer liability under certain circumstances, explained post.
On appeal, the heirs contend Privette does not control because Kalkat furnished unsafe equipment--a forklift with defective brakes--that affirmatively contributed to Gudino’s death. They further contend there is a triable issue of fact as to whether Kalkat retained control over safety conditions at the job site and negligently exercised that control.

Ernest Western Anderson appeals from the judgment entered after pleading guilty to first degree residential robbery (Pen. Code, § 211) and personal use of a firearm (§ 12022.5, subd. (a)(1)). Pursuant to the negotiated plea, appellant was sentenced to nine years state prison and ordered to pay various fines and fees, plus victim restitution in an amount to be determined at a later date.
We appointed counsel to represent appellant in this appeal. After counsel’s examination of the record, counsel filed an opening brief in which no issues were raised. On April 10, 2018, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On May 14, 2018, appellant filed a supplemental brief stating, among other things, that his trial attorney failed to advise him how much victim restitution he would have to pay.

In this juvenile dependency case, defendant and appellant C.M. (appellant) challenges the juvenile court’s order denying his Welfare and Institutions Code section 388 petition and its order terminating his parental rights to Z.B., a minor appellant claims is his biological daughter. All parties and the juvenile court agree not only that appellant was not properly noticed of the underlying proceedings but also that the Los Angeles County Department of Children and Family Services (Department) failed to conduct a court-ordered due diligence search for appellant. Because appellant had no notice of and therefore no representation or voice in these proceedings until the permanency planning hearing when the juvenile court terminated parental rights to Z.B., we conclude a “fatal error” occurred and appellant’s constitutionally protected right to due process was violated. Accordingly, we reverse and remand with directions.

Calvin C., father of A.C., appeals from the dependency court’s Minute Order of May 3, 2017, terminating jurisdiction over A.C., declaring him a ward of the delinquency court and releasing him to the probation department. Calvin C. contends that it was error to declare A.C. a ward of the delinquency court without first obtaining the Welfare and Institutions Code section 241.1 report which is mandated in the case of a dual status minor. We affirm the termination of dependency jurisdiction, but remand the matter to the dependency court to correct its Minute Order of May 3, 2017, to reflect the orders actually issued by the court on the record.