CA Unpub Decisions

In 2012 defendant Nasir Kamaruddin Shamsi pleaded guilty to first degree robbery in concert (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a); all undesignated statutory references are to this code), kidnapping (§ 207, subd. (a)), ten counts of second degree burglary (§ 459, 460, subd. (b)), fraudulent use of access card (§ 484g, subd. (a)), cultivation and possession of marijuana for sale (Health & Saf. Code, §§ 11358, 11359). Defendant also admitted an allegation he committed the marijuana offenses while he was released from custody on bail. (§ 12022.1, subd. (b).) As part of the negotiated disposition the prosecution dismissed a kidnapping for ransom charge. (§ 209, subd. (a).) And the court sentenced defendant to a total term of 21 years and four months in prison.

Though it could not reach a unanimous verdict on three other counts, a jury convicted defendant Nicholas Arthur Duncan of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). In a bifurcated proceeding, defendant admitted he had: two serious or violent prior felony convictions (§§ 667, subd. (d), 1170.12, subd. (b)); one prior serious felony (§ 667, subd. (a)(1)); and two prior felony convictions for which he had served a prison term of at least one year (§ 667.5, subd. (b)). The trial court sentenced defendant to 11 years in prison, comprised of: (1) the midterm of three years for the conviction (§ 245, subd. (a)(4)); (2) a doubling of the three-year term based on the prior strikes (§ 667, subd. (e)(1), (e)(2)(C)); and (3) a consecutive five-year term for the prior serious felony conviction (§ 667, subd. (a)(1)). The court struck the prison priors for purposes of sentencing only.

The People appeal from an order granting a Penal Code section 995 motion with respect to a torture-murder special circumstance allegation. We affirm.

Appointed counsel for defendant Jose Luis Gallardo asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we find no arguable issues on appeal.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 20, 2015, defendant went to the house he and his codefendants were using to grow marijuana. He was armed and intended to meet potential buyers of 10 pounds there. A shoot-out ensued during which defendant and a codefendant were shot and injured, and a potential buyer was shot and killed.

A jury convicted appellant Anthony Devon Coxum of premeditated first degree murder (Pen. Code, § 187, subd. (a)) and found true a personal use of a knife enhancement (§ 12022, subd. (b)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

Pursuant to a plea agreement, appellant Armen Sedrak pled no contest to one count of violating Vehicle Code section 23153, subdivision (b) and admitted a Penal Code section 12022.7 enhancement. Sedrak contends the trial court misunderstood its sentencing discretion when it declined to place him on probation and therefore, the matter should be remanded for a new sentencing hearing. We affirm.

Defendant and appellant Whanita Rose Fawcett pled no contest to committing perjury by false application for aid (Pen. Code, § 118). 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, including serving 270 days on work release and imposition of victim restitution following a victim restitution hearing. Following a restitution hearing, the trial court ordered defendant to pay victim restitution in the amount of $17,193.
On appeal, defendant argues: (1) the trial court violated the plea agreement when it awarded victim restitution to the Housing Authority for rental payments made prior to June 2015; (2) the trial court abused its discretion when it awarded restitution for rental payments made prior to April 2015 because the record contains a typographical error; and (3) the trial court abused its discretion when it calculated restitution based on an improper legal theory.

In 2005, defendant and appellant, Robert Wayne Puls, pled guilty in case No. FVI021475 to one felony count of unlawfully taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).) In a previous opinion in this appeal, we affirmed the trial court’s order denying defendant’s Proposition 47 petition to reclassify his 2005 Vehicle Code conviction as a misdemeanor. (People v. Puls (June 7, 2016, E064118) [nonpub. opn.].) We held that such convictions are ineligible to be reclassified as misdemeanors under Proposition 47, regardless of whether such convictions were theft-based and involved vehicles worth $950 or less. (Id. [at pp. 6-10].)

Nickolas Antoninetti pleaded guilty to one count of grand theft of property valued more than $950 (Pen. Code, § 487, subd. (a)). The trial court granted Antoninetti probation on various terms and conditions. One of the conditions of probation imposed was a so-called Fourth Amendment waiver. The condition, 6n, provides: "Submit person, vehicle, residence, property, personal effects, computers and recordable media, to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer."
Antoninetti appeals challenging only the portion of condition 6n which provides "computers and recordable media." Antoninetti contends there is no nexus for the search of electronic devices and in any event the condition is overbroad and violates the requirements of People v. Lent (1975) 15 Cal.3d 481 (Lent).

The juvenile court found true allegations that Jesus S. assaulted Sean L. with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with enhancements that he caused great bodily injury and the crime was a serious felony (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8) & (c)(23)). The court declared Jesus to be a ward of the court under Welfare and Institutions Code section 602 and committed him to the Youthful Offender Unit (YOU) program for 480 days.
Jesus argues that the juvenile court erred by denying his motion to exclude evidence of his statements to police during a custodial interrogation because he did not knowingly, intelligently, and voluntarily waive his right to remain silent as required under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He next asserts that the court abused its discretion by committing him to the YOU program rather than releasing him to his mother.

San Diegans for Open Government (SANDOG) appeals the trial court's denial of its special motion to strike (Code of Civ. Proc., § 425.16). On appeal, SANDOG claims that the trial court erred in denying the motion on the ground that a cross-complaint filed by the Public Facilities Financing Authority of the City of San Diego (PFFA) and the City of San Diego (the City) (collectively "respondents") did not arise from SANDOG's petitioning activity. Specifically, SANDOG maintains that respondents' cross-complaint arose from SANDOG's filing of the complaint in this action.
We conclude that the trial court properly determined that respondents' cross-complaint did not arise from SANDOG's filing of the complaint. The cross-complaint, which alleges a single cause of action for declaratory relief, arose from the underlying controversy between the parties rather than from SANDOG's filing of the complaint.

The People charged Terence Scott with seven counts of robbery (Pen. Code, § 211) for the robberies of three separate Verizon Wireless (Verizon) stores. Following a two-week trial, a jury convicted Scott on all counts. Scott raises two issues on appeal. First, Scott contends the trial court erred by excluding evidence of five uncharged cell phone (phone) store robberies, which Scott would have used in support of a third party culpability defense. Second, Scott contends the trial court erroneously instructed the jury with CALCRIM No. 372 regarding flight. We affirm the judgment because the trial court exercised its sound discretion in excluding the evidence and correctly fulfilled its sua sponte obligation to instruct the jury on evidence of defendant's flight offered to show consciousness of guilt.

A jury found James Michael Albertson guilty of vehicular burglary. (Pen. Code, § 459.) The trial court imposed a split sentence of four years in jail followed by three years of mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).)
Albertson appeals, contending we must reverse the judgment because the court erred by failing to sua sponte instruct the jury on the lesser included offense of vehicle tampering. (Veh. Code, § 10852.) He also contends two conditions of the order granting him mandatory supervision are unconstitutionally overbroad: one requiring probation officer approval of his residence and one requiring him to report contacts with law enforcement to his probation officer.
We conclude Albertson has not established the evidence before the court warranted an instruction on vehicle tampering. We further conclude he has not established the challenged conditions of mandatory supervision were overbroad. We therefore affirm the judgment and order.

Plaintiff Jorge Fierro filed the underlying action against defendant Landry's Restaurant Inc., seeking remedies for what Fierro alleges to be Landry's' violations of specified California labor laws and wage orders. Fierro asserts claims on behalf of himself and on behalf of a class of individuals that he alleges is similarly situated. Landry's demurred to the complaint on the basis that each of the causes of action was barred by the applicable statute of limitations.
As to Fierro's individual claims, the trial court overruled the demurrer, concluding that the statute of limitations defense did not appear affirmatively on the face of the complaint. As to the class claims, the trial court sustained the demurrer without leave to amend on the basis that a prior class action with identical class claims against Landry's had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure sections 583.310 and 583.360.