CA Unpub Decisions

Chase Lee Collins and Robert Gerald Zygo were convicted following a jury trial of robbery and assault by means of force likely to produce great bodily injury. On appeal they argue the trial court committed prejudicial error when it excluded the preliminary hearing testimony of the victim, Lionel Ricard, which had been offered for impeachment purposes. Collins also argues the evidence is insufficient to support his conviction for robbery. We affirm.

Plaintiff Lorraine Rhone appeals from a judgment of nonsuit entered in favor of defendant Abraham Amigon at the close of Rhone’s case-in-chief. Rhone contends the court coerced her into resting her case, denied her the right to make a closing argument, and improperly assisted Amigon’s counsel. We find no error and affirm.

Defendant and appellant Gilbert Ochoa appealed from the trial court’s denial of his motion to recall his sentence for reduction to a misdemeanor pursuant to Penal Code sections 1170.18 and 490.2, which were enacted pursuant to Proposition 47 in 2014. We affirmed in an opinion filed on January 18, 2017. We held that section 490.2 did not apply to the offense for which Ochoa was convicted, i.e., acquiring or retaining possession of another person’s access card account information with the intent to use it fraudulently in violation of section 484e, subdivision (d). The California Supreme Court granted review and held the case along with a number of other Court of Appeal decisions that had taken different approaches to this issue.

At a November 2016 dispositional hearing on a petition filed by the People under Welfare and Institutions Code section 602, the Alameda County juvenile court found minor Alejandro R. to be a ward of the court and placed him on probation subject to certain conditions, including that he not knowingly possess any weapons. Alejandro argues this weapons condition is unconstitutionally vague on its face and requests that we modify it. We conclude the condition is not unconstitutionally vague and, therefore, affirm.

In 1999, appellant Gregory Antonyio Fitch by his own account assaulted a San Francisco bus driver on a bus, causing the driver to sustain physical injuries, while Fitch was not taking his medication for mental illness. Fitch pled guilty to assault and was later committed to a state hospital under Penal Code section 2962, which provides for the commitment of mentally disturbed offenders (MDOs) who, by reason of a severe mental disorder that is not in remission or in remission only due to continued treatment, represent a substantial danger of physical harm to others. Since that time, other than a failed time in a conditional release program (CONREP), Fitch, who has been diagnosed with schizophrenia among other things, has been committed to a state hospital.

Anatoly Smolkin was convicted by a San Francisco jury of multiple counts of stalking (Pen. Code, § 646.9, subd. (a)) against 11 different victims; multiple violations of restraining orders (§ 646.9, subd. (b)); making criminal threats (§ 422) against nine different victims; making threats to an executive officer (§ 69); battery on a peace officer (§ 243, subd. (b)); disruptive presence at a school (§ 626.8, subd. (a)); and 15 counts of contempt of court by violating a civil harassment restraining order (§ 166, subd. (a)(4)). The case apparently involved Smolkin calling, e-mailing, and threatening 23 individuals over a two-month period after his employment was terminated. In April 2013, the trial court sentenced Smolkin to a total determinate term of seven years in state prison. The court imposed a 10-year criminal protective order prohibiting Smolkin from entering the City of San Francisco. No appeal was taken.

We last considered this case in an appeal by Ross Stores, Inc. from an order denying its petition to compel arbitration. We reversed in an unpublished opinion (Goss v. Ross Stores (Oct. 31, 2013, A133895) [nonpub. opn.]). In our opinion, we acknowledged the courts of appeal were split on the compelled arbitrability of representative claims under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA) and that the issue was before our Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian). In Iskanian, the Supreme Court concluded an employee cannot be compelled to arbitrate a representative PAGA claim. (Id. at p. 360.) In short, the Supreme Court embraced the view we had declined to adopt in our unpublished opinion. We last considered this case in an appeal by Ross Stores, Inc. from an order denying its petition to compel arbitration.

Plaintiff Mary Aden appeals judgments entered in favor of defendants OneWest Bank, N.A. (OneWest), Financial Freedom Acquisition LLC (FFA), and the law firm of Malcolm Cisneros, a law corporation (MC), following the entry of an order sustaining without leave to amend demurrers to plaintiff’s third amended complaint. The amended complaint seeks to recover damages based on a variety of theories, all arising out of the foreclosure of a reverse mortgage on her home. We conclude the court erred in sustaining the demurrer to the causes of action for breach of the covenant of good faith and fair dealing and financial elder abuse. Accordingly, we shall reverse the judgment entered in favor of OneWest and FFA and remand with instructions to issue an order overruling the demurrer with respect to these causes of action. We shall affirm the judgment as to MC on the ground that its conduct is protected by the litigation privilege.

This is a personal injury action against defendant San Francisco Forty Niners, Ltd. arising out of an assault after a professional football game. After almost two years of litigation and only weeks before trial, plaintiff Daniel Long filed the same claims in federal court and voluntarily dismissed this state proceeding. The district court subsequently dismissed his federal action, however, for lack of subject matter jurisdiction. Plaintiff then filed a second action in superior court, to which defendant demurred on statute of limitations grounds. Facing the possible dismissal of this third action, plaintiff moved to set aside the voluntary dismissal of this case, pursuant to Code of Civil Procedure section 473. Defendant’s demurrer was sustained and plaintiff’s motions for relief from dismissal and for reconsideration were both denied. Plaintiff appeals from the denials of relief from dismissal and of reconsideration. We affirm.

Respondent ABM Industries, Inc. (collectively with related respondents, ABM) is a large facility services company with employees throughout the United States, including thousands of janitorial workers at hundreds of job sites in California. Appellants (referred to herein as plaintiffs) are present or former ABM janitorial employees. On behalf of themselves and similarly situated Californians, plaintiffs filed their complaint in this coordinated proceeding in September 2007, alleging that ABM violated California labor laws by, among other things, failing to properly record and compensate employees for meal breaks; requiring employees to work split shifts without appropriate compensation; and failing to ensure that employees were reimbursed for expenses incurred when traveling between work sites. In June 2010, plaintiffs moved for class certification of a general class of ABM workers and various subclasses of such workers who had been subjected to particular wage and hour violations.

Defendant Juan Mario Camacho Mejia pleaded no contest to lewd conduct upon a child under 14 (Pen. Code, § 288, subd. (a)). The trial court found defendant not suitable for probation and sentenced him to the middle term of six years in prison.
On appeal, defendant contends the trial court abused its discretion in denying probation because the court: (1) failed to consider rehabilitation feasibility and his amenability to undergoing treatment pursuant to section 1203.066, subdivision (d)(1), which sets forth certain findings and orders the court must make before probation may be granted in a lewd conduct case; (2) failed to consider rehabilitation feasibility and amenability to treatment pursuant to California Rules of Court, rule 4.414, which sets forth the criteria affecting the decision to grant probation generally; and (3) improperly found certain aggravating factors.

Appellants Steven M. (father) and D.S. (mother) appealed from the juvenile court’s orders terminating their parental rights (Welf. & Inst. Code, § 366.26) as to their now three- and one-year-old sons, Adam and Stanley. After reviewing the juvenile court record, appellants’ court-appointed counsel informed this court they could find no arguable issues to raise on appellants’ behalf. This court granted appellants leave to personally file letters setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Appellants filed a joint letter but failed to address the termination findings or orders or set forth a good cause showing that any arguable issue of reversible error arose from the section 366.26 hearing. (In re Phoenix H. (2009), 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.

Dustin F. (Dustin) filed a Family Code section 7822 petition seeking to have his stepdaughter, Piper P., declared abandoned by her father, A.P. (father). The family court granted the petition. Father appeals, contending substantial evidence does not support that he abandoned Piper. We affirm.

After hearing evidence he stabbed one of his former inmates 25 times with a screwdriver, a jury convicted Ernest Amaya, Jr., of assault with a deadly weapon and found true the attending great bodily harm allegation. (Pen. Code, §§ 245, subd. (a)(1) & 12022.7, subd. (a).) As this was Amaya’s third strike, he received an enhanced sentence of 28 years to life.
Amaya raises three arguments on appeal. He contends his conviction must be reversed because the trial court erroneously refused to reopen evidence during jury instructions to allow additional impeachment testimony. Next, he contends the trial court erroneously denied his Batson/Wheeler motion. Finally, he argues and the People concede the trial court lacked authority to impose a lifetime weapons and ammunition ban. We will modify Amaya’s sentence to delete the ban, but in all other respects we affirm the judgment.