CA Unpub Decisions

A jury convicted German Mora Nunez of carrying a concealed dirk or dagger (Pen. Code, § 21310). Nunez was sentenced to a three-year term in local custody. Nunez filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel indicates she has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Nunez the opportunity to file his own brief on appeal, but he has not responded.

A jury convicted Theodis Barley Jr. of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) and found true the allegation that he used a device designed to accelerate the fire (§ 451.1). The court sentenced Barley to nine years in prison, consisting of the middle term of five years for the current offense, plus four years for the accelerant finding.
Barley appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues on appeal. Barley's counsel asks this court to review the record independently for error as required by Wende. We granted Barley the opportunity to file a supplemental brief on his own behalf. Although Barley requested and received several extensions of time in which to file his supplemental brief, he has not done so.

A jury convicted defendant Dameon Lacy of second degree robbery (Pen. Code, § 211) and sustained the allegation that defendant personally used a firearm (§ 12022.53, subd. (b)).
Sentenced to state prison for an aggregate term of 12 years, defendant appeals. He contends he is entitled to the ameliorative benefit of the amendment to section 12022.53 which allows the sentencing court to exercise discretion under section 1385 to strike or dismiss the firearm-use enhancement. We agree and will remand the matter to the trial court.

Defendant Tomas Morelos was convicted of attempted murder and assault with a firearm for shooting multiple rounds at an occupied truck. He challenges both convictions, contending there was insufficient evidence to establish the victim was inside the truck at the time of the shooting. Defendant further contends the trial court erred by denying his motion for a new trial, based on newly discovered evidence.
After we issued an opinion affirming the judgment and our Supreme Court denied his petition for review, defendant filed a petition to recall the remittitur and remand for resentencing, arguing he is entitled to the benefit of the recent amendments to Penal Code sections 12202.5 and 12022.53, which went into effect January 1, 2018, pursuant to Senate Bill No. 620. The bill grants trial courts the discretion to strike or dismiss firearm enhancements. We granted the petition to recall the remittitur, vacated our decision, and reinstated the appeal.

A jury found defendant Christopher Schulz guilty of, among other things, discharging a firearm at a vehicle, and found several enhancements true, including that the crime was committed to benefit a street gang. On appeal, defendant contends: (1) statements of witnesses and investigating officers were unduly prejudicial; (2) his trial counsel rendered ineffective assistance in failing to move to bifurcate the gang allegations and in failing to object to the prosecution’s motion to preclude the defense from eliciting certain testimony from the victim; (3) the errors were cumulatively prejudicial; (4) reversal is required to allow the trial court to consider striking the firearm enhancements pursuant to the newly enacted Senate Bill No. 620; and (5) the judgment must be modified to impose a full, stayed term on count three. Defendant’s last two contentions have merit.

After a bench trial on class action and individual wage and hour claims brought under Business and Professions Code section 17200 by Robert Kane, Ahmad Lloyd, Kosol Main, Jose Noe Galan and Javier Higuera Parra against their former employer, Valley Slurry Seal Company (Valley), the trial court found against Valley on some of the claims and entered judgment awarding $91,644.49 in total restitution and interest to the named plaintiffs on their individual claims, $218,277.94 in restitution and interest to the class, and injunctive relief requiring Valley to comply with California prevailing wage laws and meal break requirements. The court also awarded the named plaintiffs $996,232.72 in attorneys’ fees under Code of Civil Procedure section 1021.5. On appeal, Valley takes a scattershot approach to challenging the judgment and attorneys’ fees award. We begin by noting that the appellant must “[s]tate each point under a separate heading or subheading summarizing the point.”

Petitioner is the mother of two daughters, five-year-old M.R. and two-year-old H.R., both dependents of the juvenile court. On February 13, 2018, the juvenile court terminated reunification services and set a selection and implementation hearing under Welfare and Institutions Code section 366.26. Mother filed a petition for extraordinary writ pursuant to rule 8.452 of the California Rules of Court challenging the order. We conclude substantial evidence supports the juvenile court’s order and therefore deny the petition.

An information, amended at trial, charged Theodore Ralston Baker with one count of knowingly and maliciously dissuading a witness from prosecuting a crime. The information also alleged that Baker had a prior strike, a prior serious felony, and three prior prison terms. Baker pleaded not guilty. The trial court denied Baker’s motion to strike his prior strike under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. At trial, the victim testified she was a former girlfriend of Baker’s younger brother Keyion and the mother of Keyion’s three children. In August 2014, she reported Keyion for domestic violence, and obtained a restraining order against him. On September 5, 2014, the day of Keyion’s court hearing, the victim had just parked in her driveway. A car pulled up and Baker got out. Baker demanded that she go to court and drop the charges against Keyion. She refused, and they argued.

In this dependency case, the juvenile court found jurisdiction over the minor, R.C., based upon two separate counts under Welfare and Institutions Code section 300, subdivision (b), relating to the parents’ use of methamphetamine. The court ordered the minor to remain in mother’s custody while she participated in a drug rehabilitation program with monitored visitation for the minor’s presumed father, Gary H. Mother, Kristina W., does not appeal. Father does not challenge the disposition but contends the jurisdictional finding relating to his substance abuse is not supported by substantial evidence. Father hopes to avoid the court’s case plan, which requires him to participate in a full drug rehabilitation program and submit to random drug testing.

Pursuant to a plea agreement, appellant Christian B. Jones pled no contest to one count of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and was sentenced in accordance with the agreement to 36 months of probation. Appellant’s counsel on appeal filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436 (Wende)) requesting that we conduct an independent review of the record. Appellant filed a supplemental brief, principally contending he wanted to go to trial and that his counsel misled him regarding the consequences of his plea deal. We have reviewed the record and conclude that no arguable issues exist. Accordingly, we affirm.

A jury found defendant and appellant Jonathan Requejo guilty of attempted murder, possession of a firearm by a felon, and shooting into an occupied vehicle, and made true findings that defendant personally and intentionally discharged a firearm. On appeal, defendant contends that (1) his conviction must be reversed because his trial counsel provided ineffective assistance by failing to request an eyewitness identification instruction pursuant to CALCRIM No. 315, and (2) the recent enactment of Senate Bill No. 620 (SB 620) requires us to remand this matter to allow the trial court to exercise its discretion to strike the firearm enhancements under Penal Code section 12022.53.
As we will explain, defendant has not demonstrated by affirmative evidence that his counsel lacked a “ ‘ “ ‘rational tactical purpose’ ” ’ ” for failing to request a CALCRIM No. 315 instruction. (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).)

This is the third appeal in this malicious prosecution action. The factual and procedural background of this action and the underlying action is described in detail in La Grange v. Tran (Nov. 12, 2015, B255835) [nonpub. opn.] (La Grange I) and La Grange v. Ward (Jan. 23, 2018, B275459 [nonpub. opn.] (La Grange II).
In this appeal Debra La Grange challenges the trial court’s award of $23,760 in attorneys’ fees to R. Jeffrey Ward, an attorney who represented Tina Tran in the underlying action and who became a defendant in the malicious prosecution action. After the trial court granted Ward’s special motion to strike under Code of Civil Procedure section 425.16, a ruling we affirmed in La Grange II, the court granted Ward’s motion for attorneys’ fees, although the court awarded Ward much less than he asked for in fees.
La Grange does not dispute Ward prevailed, but argues the amount of the award of attorneys’ fees was unreasonable. We affirm.

Defendant Robert Al Lammers, a bipolar methamphetamine addict, was convicted of three counts of premeditated attempted murder and one count of assault after he went on a three-day spree in which he approached Hispanic men in public places, stabbed them with a folding knife, and fled in his car. Though a defense expert testified defendant was delusional at the time, the jury was instructed that it could consider defendant’s mental illness only when deciding whether he acted with intent to kill. Defendant contends this was error because his mental illness was also relevant to whether he premeditated and deliberated the attempted killings. We agree and conclude the error was prejudicial as to count 1 but harmless as to counts 2 and 5. We therefore reverse count 1.

In this consolidated appeal, plaintiff Kevin Brady (Brady) challenges the trial court’s grant of summary judgment to defendants Walt Disney Pictures (Disney), The Walt Disney Company and Disney Worldwide Services, Inc. (collectively Companies) on Brady’s age discrimination claims. In Companies appeal, they claim that the trial court abused its discretion when it granted Brady’s postjudgment motion to tax Disney’s costs. We affirm both the judgment and the posttrial order.