CA Unpub Decisions

Following a suitability hearing under the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36 (Pen. Code, § 1170.126), the trial court found resentencing Michael L. Foster would pose an unreasonable risk of danger to public safety and denied his petition for recall of his prison sentence. On appeal Foster contends he was provided ineffective assistance of counsel and the trial court failed to apply the proper definition of “unreasonable risk of danger to public safety.” We affirm the trial court’s order.

Yunhwan Park sued his former employer Joong-Ang Daily News California, Inc. doing business as Korea Daily (Korea Daily) and its parent company Joong-Ang Media Network USA, Inc. (Media Network) asserting causes of action for various wage-and-hour Labor Code violations, as well as for fraud and unfair business practices. Following a bench trial, the court entered judgment in favor of Park for $119,088.29 plus attorney fees and costs. On appeal Korea Daily and Media Network contend the court’s ruling was not supported by substantial evidence and challenge the award of attorney fees. We reverse the findings on Park’s causes of action for violation of Labor Code section 970, inducing him to move to California based on false representations, and fraud and otherwise affirm.

Edward Garcia appeals a judgment following conviction of first degree murder with special circumstance findings that the murder was committed while he was engaged in the commission of attempted robbery or robbery, and that the murder was intentional and involved the infliction of torture. (Pen. Code, §§ 187, subd. (a), 189, 190.2, subds. (a)(17)(A) [robbery] & (a)(18) [torture].) We affirm.

Petitioners Lisa Gallo, Mary Sherfey, and Denise Thompson filed this writ proceeding to challenge a portion of respondent superior court’s order granting petitioners leave to amend their complaint against real parties in interest Rudy Gallo and Gina Komaroff. Having considered the petition, record, and the parties’ briefs, we determine petitioners are entitled to writ relief.

Professional models posted an online “blacklist” of photographers who allegedly engaged in sexually inappropriate behavior in professional settings with models. Alan Brenner, one of those on the list, sued the models for defamation and related torts. The models successfully moved to strike the complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16). We affirm

Petitioner Van Osmond Smith (appellant) appeals in propria persona from an order dismissing his petition to admit his mother’s will into probate, name him as executor of his mother’s estate, and appoint him as successor trustee of his mother’s trust. The court dismissed the petition on the ground the matter should have been pursued as a motion or objection in prior actions in which appellant’s sister had been appointed executor and confirmed as trustee. We find no error and shall affirm.

Plaintiff Van Smith sued the County of Alameda (County) and an assistant county clerk-recorder, Matthew Yankee (collectively, defendants), for allegedly submitting a false instrument—a recorded deed of trust—that allowed the County to prevail in prior litigation. On appeal, Smith challenges (1) an order granting defendants’ motion to declare Smith a vexatious litigant and (2) an order granting their special motion to strike Smith’s complaint pursuant to Code of Civil Procedure section 425.16 as a strategic lawsuit against public participation (anti-SLAPP motion). We shall affirm the challenged orders.

After defendant Steve Harris attempted to swallow a bag of heroin to evade a probation search of his companion’s vehicle, a jury convicted him of one count of possessing heroin and one count of resisting, delaying, or obstructing a peace officer. On appeal, he contends that the trial court erred by: (1) denying his request for a pinpoint jury instruction on prolonged detentions as to the latter count; (2) imposing a probation condition requiring him to submit to searches of his electronic devices (electronics search condition); and (3) imposing penalty assessments on a $50 criminal laboratory analysis fee (crime-lab fee) he was charged. We reject Harris’s claim of instructional error, but we agree that the probation condition is unconstitutionally overbroad and that penalty assessments should not have been imposed on the crime-lab fee. We therefore strike the challenged condition and penalty assessments and otherwise affirm.

A jury convicted Julio Rodriguez of multiple crimes against Jane Doe 1: two counts of kidnapping for the purpose of rape (Pen. Code, § 209, subd. (b)(1)), two counts of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sodomy (§ 286, subd. (c)(2)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and second degree robbery (§§ 211, 212.5, subd. (c)). The jury also convicted Rodriguez of kidnapping Jane Doe 2 for the purpose of rape (§ 209, subd. (b)(1)) and assault with the intent to commit a felony (§ 220, subd. (a)(1)). Rodriguez appeals from the judgment, arguing (1) evidence of an uncharged offense was erroneously admitted; (2) the evidence was insufficient to support one of his convictions for aggravated kidnapping; (3) the trial court erred by failing to sua sponte instruct a juror to disregard restraints placed upon Rodriguez; (4) ineffective assistance of counsel; (5) cumulative error; and (6) his sentence constitute

As part of a judgment of conviction for failing to register as a sex offender, defendant Raule Rivera Chavez was ordered to pay to the County of Santa Clara a $259.50 Criminal Justice Administration fee, colloquially referred to as a booking fee. He argues on appeal that the fee was imposed based on an insufficient record. For the reasons explained here, we will affirm the judgment.

Defendant John Winston Boone pleaded no contest to grand theft (Pen. Code, (§§ 484-487, subd. (a)) , forgery of a bill due (§ 470, subd. (d)), three counts of use of personal identifying information without authorization (§ 530.5, subd. (a)), embezzlement (§§ 504, 487), and preparing false documentary evidence (§ 134). Defendant also admitted an excessive taking enhancement (§ 12022.6, subd. (a)(1)) and an aggravated white collar crime enhancement (§ 186.11, subds. (a)(1), (a)(3)). At sentencing, the court ordered victim restitution totaling [amount redacted] to defendant’s two former employers. On appeal, defendant challenges two components of the victim restitution order, which directed him to pay one of his employers: (1) [amount redacted] in lost wages and profits based on the efforts of its employees, and (2) [amount redacted] in lost profits for a lost business opportunity. He contends there is insufficient evidence to support either order.

The superior court granted defendant Reese Allen Stanley’s suppression motion and dismissed the criminal action against him after it found that the detention of defendant by a sheriff’s deputy was not supported by reasonable suspicion. The prosecution challenges that finding. We conclude that the deputy’s detention of defendant was reasonable, and we therefore reverse the superior court’s order.

Defendant Ryon Michael Hoffmann challenges the superior court’s denial of his Penal Code section 1170.18, subdivision (f) application seeking to have his 2004 conviction for possession of a “blank or unfinished” check (§ 475, subd. (b)) redesignated as a misdemeanor. The superior court denied his application because it found that “the face amount of the check in that Count was $1327.56.” Defendant’s original contention on appeal was that the superior court erred in equating the “face amount” of a check with its “value” for purposes of determining whether the value of the check was greater than $950 so as to qualify for relief under section 1170.18. He claimed that “the value” of a check does not refer to the “face amount written on” the check “but is to be determined merely based upon the intrinsic or inherent value of the instrument itself (i.e., the price someone would pay to acquire the instrument).”

In 2016, Eisuke “Ace” Kutsuna lost his unlawful detainer action based on unpaid rent against Russ S. Fuller and his company Revolution Supply, Inc. (collectively referred to in the singular as Fuller). We upheld the trial court’s determination Fuller had an affirmative defense to the action because Fuller paid the rent to the Franchise Tax Board (FTB) pursuant to a FTB order stating the property owner owed taxes. (Kutsuna v. Fuller (Nov. __ 2017, G053428) [nonpub. opn.] (Kutsuna I).) While that appeal was pending, Kutsuna filed a second unlawful detainer action against Fuller. After a bench trial, the court again ruled in Fuller’s favor. On appeal, Kutsuna raises some of the same legal challenges discussed in Kutsuna I and several new ones. We conclude all the contentions lack merit and affirm the judgment.