CA Unpub Decisions

Defendant Andrew Thomas Hrenko was sentenced to serve 20 years 6 months in prison for committing four sex offenses against minors. On appeal, he contends: (1) insufficient evidence supports his conviction for annoying or molesting a child because he did not intend to be observed as he masturbated near sleeping children; (2) his sentence was not authorized under a sentencing scheme providing for consecutive full terms for specific sex offenses; and (3) the abstract of judgment inaccurately reflects his convictions. The People disagree with the first contention and concede the latter two. Agreeing with the People, we remand for resentencing and with directions to correct the abstract of judgment, and we otherwise affirm the judgment.

A jury found defendant Sutter Nguyen guilty of second degree murder and two counts of attempted murder. The trial court sentenced defendant to nine years four months for the attempted murders and 15 years to life for the murder. This court affirmed the judgment. (People v. Pham (Jan. 22, 2008, C049751, C049992) [nonpub. opn.] (Pham).)
Defendant filed a petition for resentencing under Penal Code section 1170.95 and requested appointment of counsel. The trial court denied the petition, concluding defendant was not eligible for resentencing as he was not convicted on a felony murder or natural and probable consequences theory. Although defendant had not sought resentencing on his attempted murder convictions, the trial court also noted that section 1170.95 did not apply to attempted murder convictions.

Juan Rodriguez Avalos appeals from an order denying his motion to dismiss his restitution order pursuant to Assembly Bill (A.B.) 1869 (2019-2020 Reg. Sess.). For reasons we shall explain, we dismiss the appeal.
In 1999, appellant was convicted of two counts of residential robbery in concert with others (Pen. Code, §§ 211, 213, subd. (a)(1)(A)), attempted robbery (§§ 664/211), residential burglary (§459), rape in concert (§ 264.1) and kidnapping to commit robbery (§ 209, subd. (b)(1)). The jury also found true the firearm (§ 12022.5, subd. (a)(1)) and one “strike” allegations (§ 667.61, subds. (a), (b), (e)).
The trial court imposed a state prison sentence of 55 years to life and ordered appellant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and a “fee” of $200 pursuant to section 290.3, subdivision (a).) On direct appeal, we affirmed the convictions with modifications to the sentence. (People v. Lopez et al. (Apr. 24, 2001, B138199) [nonpub. opn.].)

Levi was born in August 2018. Both mother and Levi tested positive for amphetamines and methamphetamines during delivery, and DCFS detained Levi shortly thereafter.
Mother reported having an open dependency case in San Bernardino County for her four older children (Levi’s half-siblings), who had been placed with the maternal grandparents. Mother, too, had been living with the maternal grandparents “on and off” for the last two years. Mother said she had been born in Mexico, came to the United States with her parents when she was two years old, and was close with her parents and siblings. The maternal grandparents confirmed that mother had been living with them and said they would like to have Levi placed in their home.
Robert M. (father) said he and mother had known each other since they were children. Father had a long history of drug use and had served time in prison for drug offenses and robbery.

Panda owns and operates a chain of Asian-style fast food restaurants. On January 3, 2020, appellant visited Panda’s Arroyo Grande location. Appellant, who had pre-ordered his food online, carried his small dog, a Chihuahua mix, under his arm. Appellant’s food was ready when he arrived and he proceeded to the counter to retrieve his food. Appellant held the dog above the food counter. Panda employees served appellant, who then left with his to-go order.
Appellant alleges that during this visit, three of Panda’s employees told him dogs are not allowed in the restaurant. Appellant claims he told them his dog was a service dog and that the Panda employees’ comments violated the Americans with Disabilities Act (ADA), as incorporated by California’s Unruh Act.
Panda maintains that under its policies, service dogs are allowed to accompany guests with disabilities in all areas where guests are permitted and that its associates are trained to welcome service dogs.

Panda owns and operates a chain of Asian-style fast food restaurants. On January 3, 2020, appellant visited Panda’s Arroyo Grande location. Appellant, who had pre-ordered his food online, carried his small dog, a Chihuahua mix, under his arm. Appellant’s food was ready when he arrived and he proceeded to the counter to retrieve his food. Appellant held the dog above the food counter. Panda employees served appellant, who then left with his to-go order.
Appellant alleges that during this visit, three of Panda’s employees told him dogs are not allowed in the restaurant. Appellant claims he told them his dog was a service dog and that the Panda employees’ comments violated the Americans with Disabilities Act (ADA), as incorporated by California’s Unruh Act.
Panda maintains that under its policies, service dogs are allowed to accompany guests with disabilities in all areas where guests are permitted and that its associates are trained to welcome service dogs.

APP employed Maldonado and Gonzalez. In July 2020, Maldonado submitted a PAGA notice to the Labor and Workforce Development Agency (LWDA) pursuant to section 2699.3. He alleged three violations: (1) a WARN Act violation, (2) failure to reimburse expenses arising from the use of personal vehicles, in violation of section 2802, and (3) an Industrial Welfare Commission wage order No. 1-2001 (Cal. Code Regs., tit. 8, § 11010, subd. 15) violation for excessive heat and work conditions violations. In October 2020, Maldonado filed a complaint in Orange County Superior Court alleging the same three PAGA claims against APP.

Appellant Joseph Pacheco appeals the denial of his petition for resentencing under Penal Code section 1170.95. In 2012, appellant and three other members of a criminal street gang met with a fellow gang member, Anaya, at an apartment to collect money for a drug deal. After discovering information on Anaya’s phone leading them to believe Anaya was an informant for law enforcement, the men locked Anaya in the bathroom and then appellant and the others struck him in the face. The four assailants later reentered the bathroom; appellant and another man were armed with handguns. The men injected Anaya with methamphetamine, tied his hands behind his back, placed a sweatshirt over his head, and led him out of the apartment to a nearby truck.
Two of the men drove away with Anaya in the truck; appellant, who was wearing a GPS tracking device as a condition of parole, remained in the apartment. The two men drove Anaya to an alley and shot him in the head.

Heidi Corporation dba Donald J. Scheffler’s Concrete Construction (“Heidi”) appeals from an order granting Respondent Tree Lane LLC’s (“Tree Lane”) motion to release the mechanic’s lien Heidi recorded on real property owned by Tree Lane. Heidi failed to serve the 20-day preliminary notice of the mechanic’s lien on Tree Lane’s construction lender, Skylark Capital Management (“Skylark”) , as required by Civil Code section 8200. Heidi asserts the trial court erred in failing to recognize it was excused from strictly complying with the preliminary notice requirements of section 8200 because Skylark’s interest in the property was unaffected by Heidi’s mechanic’s lien.
Section 8200 does not provide an exception to the requirement that a lien claimant must serve preliminary notice on the lender before the lien can be perfected. Heidi’s failure to provide Skylark with preliminary notice therefore invalidated the lien.

In 1997, a jury found Reyes guilty of possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)). After a court trial on three priors that had been alleged under the Three Strikes law and that arose out of Reyes’s 1994 conviction for a robbery involving three victims, the trial court found the priors true. At the 1998 sentencing hearing, the trial court denied Reyes’s Romero motion and motion to stay sentences on various counts under section 654 and sentenced him to 25 years to life plus one year (§ 667.5, subd. (b)). On appeal, that judgment of conviction was modified to correct presentence custody credits but otherwise affirmed. (People v. Alexander Reyes (May 12, 1999, B120499) [nonpub. opn.].)
Then, in 2014, Reyes petitioned the trial court to recall his sentence under the Three Strikes Reform Act of 2012, which reduced the punishment for some third-strike offenses that were neither violent nor serious. (See generally §§ 667, 1170.12, 1170.126.)

Appellant Elizabeth I. (mother) asserts that the juvenile court erred in the exit order (Welf. & Inst. Code, § 362.4 ) it issued upon termination of jurisdiction over mother’s teenage son, C. When the juvenile court terminates jurisdiction over a child, it may order counseling or other programs as part of its exit order. However, it may not condition future modification of that order upon the completion of counseling and other programs; such changes are within the province of the family court. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 (Cole Y.).) Mother asserts the juvenile court violated this rule by conditioning any future change in visitation on mother’s completion of drug tests and other programs. Respondent Los Angeles County Department of Children and Family Services (DCFS) disagrees, contending that the juvenile court’s recommendations that mother complete certain programs did not limit the family court’s power to make any future changes to the visitation order.

Connected Morro Bay Blvd., LLC, appeals from the judgment denying its petition for a writ of mandate and complaint for injunctive relief. Respondent City of Morro Bay (City) denied appellant’s application for a permit to operate a retail cannabis dispensary. It issued permits to two other applicants. Appellant sought an order requiring City to revoke the issued permits and grant its application for a permit. Appellant contends that City officials exercised unauthorized discretion in permitting the successful applicants to change the location of their dispensaries. We affirm.

In 2014, Rafael Rojas suffered significant injuries when he was hit by a semi-trailer truck while sitting in a wheelchair on the sidewalk. The department is the state agency responsible for administering the California Medical Assistance Program (Medi-Cal). It paid $84,043.46 for Rojas’s accident-related medical treatment. By law, the department is entitled to reimbursement for the reasonable value of the benefits it has provided less certain deductions. The department enforces its reimbursement rights by way of a lien filed in the underlying litigation in the name of the department’s director. (Welf. & Inst. Code, § 14124.70 et seq.)
Rojas retained Quesada to represent him in a personal injury lawsuit against the driver and others and filed suit on October 29, 2018. As required by law, Quesada notified the department of the lawsuit. (§§ 14124.73(a), 14124.76, 14124.79.)

A jury convicted Francisco Javier Casillas of three counts of attempted premeditated murder, three counts of assault with a semiautomatic firearm and one count of carrying a loaded firearm while an active gang member. The jury also found true the allegations supporting firearm and gang enhancements. Casillas appealed, asserting instructional, sentencing and cumulative errors.
During the pendency of his appeal, the Legislature amended various statutory provisions governing gang enhancements and the requisite proof for gang-related crimes. The parties agree Casillas is entitled to the retroactive benefit of certain of these changes, necessitating the vacatur of his conviction for carrying a loaded firearm while an active gang member and other gang enhancements. The parties also agree the trial court erred in imposing a 15-year minimum parole eligibility period on the attempted murder counts.