CA Unpub Decisions

David Jah appeals from a trial court order apportioning partition costs pursuant to Code of Civil Procedure section 874.040. We affirm.

Defendant Jabar Exsavia Pollins was convicted by a jury of second degree robbery (Pen. Code, §§ 211, 212.5). The jury also found true an enhancement that he personally used a firearm during the commission of the offense (§ 12022.53, subd. (b)). Defendant was sentenced to a total term of 12 years in prison. On appeal, he argues the trial court erred when it admitted expert testimony on pimping and pandering. He claims this testimony was irrelevant, prejudicial, and amounted to improper profile evidence. For the reasons set forth below, we find no merit in defendant’s argument that expert testimony was admitted in error.
While defendant’s appeal was pending, the Legislature amended section 12022.53, subdivision (h), effective January 1, 2018. (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) Section 12022.53, subdivision (h) now grants trial courts the discretion to strike or dismiss firearm enhancements pursuant to section 1385.

A jury found defendant Felix Armando Villar guilty of the felony offense of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). It found true that defendant committed the offense “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members” within the meaning of section 186.22, subdivision (b)(1). Defendant was sentenced to 25 years to life as a third strike offender under the Three Strikes law (§ 667.5, subd. (b)) consecutive to a two-year gang enhancement term (§ 186.22, subd. (b)(1)(A)).

The court terminated B.C.’s (mother) reunification services and set a permanency hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). Subsequently, mother filed a petition pursuant to section 388 (388 petition) to change that ruling. The court denied the petition. It found mother had shown a change of circumstances in that she had maintained sobriety over a lengthy period. However, the court found that changing the order would not be in the best interests of the child. We find no abuse of discretion and deny the petition.

Defendant Amparo Jose Guzman was charged in the information with transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count one), possession of methamphetamine for sale (§ 11378; count two), and driving on a suspended license (Veh. Code, §14601.1, subd. (a); count three). Guzman pled guilty to the Vehicle Code violation before trial and sentencing was continued until after the trial on the drug charges. The jury acquitted defendant of the offenses charged in counts one and two, and convicted him of two counts of misdemeanor possession of methamphetamine (§ 11377, subd. (a)), as lesser included offenses of counts one and two. The court placed defendant on three years of informal probation and, in addition to other terms and conditions of probation, ordered defendant to serve 60 days in custody and register as a narcotics offender, purportedly pursuant to section 11590. The court imposed a fine on the Vehicle Code conviction.

Defendant Sean Matthew Evans contends on appeal that the trial court erred in sentencing him to more than six months on two shoplifting convictions. The People concede. We vacate the sentences in two cases and remand for resentencing.

Appointed counsel for defendant Daniel Cruz 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.

Appellant Chawa See was 16 years old when he and three other gang members approached Robert Trevino and See shot him in the head. A jury convicted See of murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (§§ 182/187) and found true a gang enhancement (§ 186.22, subd. (b)(1)), a special circumstance allegation (§ 190.2, subd. (a)(22), and a personal use and intentional discharge of a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).
The court originally sentenced See to 25 years to life without the possibility of parole (LWOP) for the murder and a consecutive 25 years to life for the firearm enhancement. However, on May 13, 2016, the court granted See’s petition for a writ of habeas corpus that alleged his LWOP sentence violated the Eighth Amendment.

On June 16, 2009, a jury convicted appellant Gerald Anthony Wharry of possession of ecstasy (Health & Saf. Code, § 11377, subd. (a)/count 2). The jury, however, was unable to reach a verdict on a count of sale of cocaine base (§ 11352, subd. (a)/count 1) and the court declared a mistrial with respect to that count. In a separate proceeding, Wharry admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and two prior conviction enhancements (§ 11370.2).
On October 15, 2010, a second jury convicted Wharry of sale of cocaine base. Despite his conviction on the two counts, the court allowed Wharry to remain out of custody on his own recognizance pending sentencing and he absconded. He was apprehended on August 28, 2015.

The Right to Repair Act (Civ. Code, §§ 895–945.5; the Act), which sets out statewide standards residential construction must meet, establishes a prelitigation dispute resolution process pursuant to which a homeowner must give the builder notice of any alleged construction defects, after which the builder has a right to attempt to cure the defects. (§§ 896, 910–938.) If the builder fails to comply with the prelitigation procedures or fails to remedy the defects, the homeowner may file an action for damages. (§§ 920, 925.) If the homeowner files suit without giving the builder the required notice, the builder may obtain a stay of the litigation, pending completion of the prelitigation process. (§ 930, subd. (b).)

Plaintiff and appellant, Jacob R. Davis, brings this putative class action against his former employer, defendant and respondent, International Coffee and Tea, LLC, (International Coffee), on the theory that the company’s tip-pooling policy violates Labor Code section 351. The trial court sustained International Coffee’s demurrer to the second amended complaint (SAC) without leave to amend. According to the SAC, International Coffee pools tips on a weekly basis and distributes them to service employees based on the number of hours each employee worked that week. We conclude this policy does not violate section 351, and moreover, the statute does not create a cause of action for unfair and unreasonable tip pooling. We hold the court did not err in sustaining the demurrer and affirm.

In this marital dissolution action between Lee Mihoky and Jennifer Mihoky, Lee appeals the denial of his request for an order (RFO) to enforce the parties' dissolution judgment and marital settlement agreement (MSA) by awarding him possession and control of the marital residential property (the property) and ordering Jennifer to vacate the property. Lee contends that the trial court erred in finding that the doctrines of waiver and estoppel precluded Lee from enforcing the provision in the judgment that awarded him the property upon Jennifer's failure to refinance the property within a specified time period. We agree that the court erred and accordingly, reverse.

In this case Christopher Haggerty was convicted of one count of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)). Based upon a prior Illinois conviction for robbery, the prosecution alleged a serious felony prior conviction (§ 667, subd. (a)(1)) and a serious/violent felony [strike] prior. Following the verdict, the court held a hearing and reviewed the record as then permitted by People v. McGee (2006) 38 Cal.4th 682 (McGee). The trial court concluded the Illinois prior qualified as a serious felony in California. Accordingly, the court imposed a second strike sentence of eight years (the middle term doubled), plus five years for the serious felony prior conviction, and one year for the prison prior (§ 667.5, subd. (b)), for a total of 14 years. Haggerty appeals contending the trial court impermissibly engaged in judicial factfinding in order to determine that the Illinois prior qualified as a serious felony.

Defendant Brice Tabbutt robbed a 73-year-old man of his car. He was initially placed on formal probation. After failing to abide by the terms and conditions of probation, Tabbutt was eventually sentenced to a term of four years in prison. Upon sentencing Tabbutt to prison, the trial court issued a stay-away and no-negative-contact order to prohibit Tabbutt from going near his mother's mobile home park and from engaging in negative contact with his mother, sister, and niece after his release from prison.
Tabbutt contends that the trial court did not have the authority to issue the protective order. The People concede that Tabbutt is correct and request that this court strike the order. We accept the concession.