CA Unpub Decisions

A jury found defendant and appellant Efren Flores (defendant) guilty of first degree murder and two counts of attempted murder. On appeal, defendant contends that there was insufficient evidence to support the guilty verdicts, his trial counsel provided ineffective assistance of counsel by failing to object to certain hearsay statements of a former codefendant, and the trial court erred by failing to instruct the jury sua sponte on accomplice liability. Defendant also challenges his sentence under the gun-use enhancement on the grounds that it violates California’s multiple conviction rule and principles of double jeopardy.
We hold that there was substantial evidence in support of the jury verdicts, the claimed ineffective assistance of counsel was not prejudicial, and the claimed instructional errors were not prejudicial. We further hold that defendant’s challenges to his sentence under the gun-use enhancement are without merit. We therefore affirm the judgment of conviction.

Plaintiffs Joshua Morgan and George Shannon appeal from the trial court’s denial of their motion to certify a class consisting of customers who purchased cellular telephones from defendant AT&T Wireless Services, Inc. (the predecessor to AT&T Mobility, hereafter referred to as ATTM) in 2003. Plaintiffs’ filed a class action lawsuit alleging ATTM made changes to their wireless network which rendered plaintiffs’ phones unusable. ATTM initially sought to compel individual arbitration based on an arbitration clause that contained a clear action waiver, but changes in the law resulted first in its abandonment of that request, and later in its renewal of its request to compel individual arbitration. The trial court concluded that ATTM waited too long to renew its request to compel arbitration and waived that right as to the named plaintiffs. However, the court also held that ATTM could not have sought to compel arbitration as to the putative class members before the named plaintiffs filed a motion seeking class certification. When plaintiffs did so, the court denied the motion for class certification on the basis that plaintiffs were not compelled to arbitrate due to ATTM’s waiver, but the putative class members were still subject to arbitration. As a result, the named plaintiffs were not representative of the class, and the trial court therefore denied the motion for class certification.
Plaintiffs contend on appeal that a finding of waiver of the right to compel arbitration by a class action defendant applies not only to claims of the class representatives, but also to putative class members, prior to class certification. Because we agree, we reverse the trial court’s order denying class certification.

A jury convicted defendant Tyrell Ainsworth of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that defendant personally used a firearm within the meaning of section 12022.53, subdivision (d). Defendant admitted the allegation that he had suffered one prior strike conviction. After defendant’s successful motion to proceed in propria persona at the sentencing hearing, the court sentenced him to state prison for 75 years to life, consisting of 25 years to life for the murder, doubled pursuant to the “Three Strikes” law, plus a consecutive sentence of 25 years to life for the gun use enhancement.
Defendant contends on appeal that the trial court erred by refusing to instruct the jury regarding voluntary manslaughter because there was substantial evidence the killing was done in the heat of passion, and by admitting evidence that a shotgun not involved in the killing was found at defendant’s residence. We are not persuaded by either of these arguments. However, we agree with defendant’s further contention that because he was a minor at the time of the killing and the court did not consider the factors specified in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller) before imposing a sentence of 75 years to life, we must remand the matter to the trial court to reconsider its sentencing decision in light of that case. We thus affirm the judgment of conviction but remand the matter to the trial court for resentencing.
Defendant also contends and the Attorney General concedes that the trial court imposed an erroneous fine and erred in calculating his presentence custody credits. Accordingly, we order that the abstract of judgment be corrected.

A jury found defendant and appellant Joshua Martin Parra-Davis guilty of offenses relating to possession of destructive devices under former Penal Code section 12301 et seq.[1] He contends on appeal that the trial court misinstructed the jury on the definition of “destructive devices,” depriving him of his state and federal constitutional due process rights. We hold that any instructional error did not violate his due process rights, and we therefore affirm the judgment.

Robert Palomo appeals a judgment following conviction of three counts of oral copulation of a child less than 10 years old, and three counts of committing a lewd act on a child, with a finding that he committed the criminal offenses on more than one victim. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a), 667.61, subd. (e).)[1] We affirm.

In this case, the probate court found that a trustee of a decedent’s trust (Trust), Edward Ezor (Ezor), breached his duties as a trustee. Ezor acted as co-trustee with one of the beneficiaries, Jill Wizel (Wizel) to administer the Lydia Wizel Trust for the benefit of Robert Brown (Brown) and Wizel. The court concluded that Ezor breached his duties by delaying the administration of the Trust, paying himself and his attorney excessive fees, refusing to make any distributions to Brown, failing to investigate Wizel’s competence to serve as a trustee, failing to pay Wizel’s medical insurance premiums, and opposing the beneficiaries’ objections to his account without reasonable cause and in bad faith.
The probate court removed Ezor and surcharged him the excessive fees paid to him and his attorney, the loss incurred by Brown due to Ezor’s failure to divide the Trust assets, and the loss incurred by Wizel due to her lapse of medical insurance. The probate court also surcharged Ezor the attorney fees related to his opposition to the objections to the account pursuant to Probate Code section 17211, subdivision (b).

Attorney Tatiana Katerina Linton appeals from an order denying her motion to vacate a default and default judgment in an action alleging she misappropriated money that belonged to the plaintiff. We affirm the order.

Calvin McGraw appeals the judgment entered following his conviction by jury of (1) corporal injury to a former cohabitant (Pen. Code, § 273.5, subd. (a)),[1] with a special finding that appellant used a chair as a deadly weapon (§ 12022, subd. (b)(1)), and personally inflicted great bodily injury (§ 12022.7, subd. (e)); and (2) assault with a deadly weapon (§ 245, subd. (a)(1)), with a special finding of infliction of great bodily injury. Appellant waived jury on the prior conviction allegations and the trial court found them to be true. It sentenced appellant to an aggregate prison term of 22 years.
Appellant contends the trial court erred by finding no prima facie case of discrimination during voir dire, by failing to instruct the jury sua sponte with CALCRIM No. 850 and by denying appellant's motion to reopen the evidence. He further contends trial counsel provided ineffective assistance of counsel by not objecting to inadmissible expert evidence as to the victim's credibility and by failing to request the CALCRIM No. 850 limiting instruction. We affirm.

Petitioner filed a petition for writ of mandate arguing that the trial court improperly denied her peremptory challenge under Code of Civil Procedure section 170.6.[2] We requested informal opposition and reply, and gave notice that we may issue a peremptory writ in the first instance. (See Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Having received and reviewed the informal opposition and reply, we now grant petitioner’s request for a peremptory writ of mandate.

Pursuant to a negotiated disposition, appellant Rudolph Chavez Esquivel III entered a plea of no contest to first degree robbery (Pen. Code § 213, subd. (a)(1)(B))[1] with a stipulated midterm sentence of four years. He received the four-year sentence.
Assigned counsel has submitted a Wende[2] brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Esquivel has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
We find no error and affirm.

A modification decision.

The San Francisco District Attorney charged Raymond D. Bassett and an accomplice with second degree robbery. (Pen. Code, § 211.) Bassett was alleged to have robbed his victim of an iPhone. Shortly after the crime occurred, the victim identified Bassett as one of the perpetrators during a “cold show.”[1] A jury later found Bassett guilty of the charge, and after a bifurcated trial, the court found true allegations of a prior serious felony conviction and a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (a)(1), (d), and (e), 1170.12, subdivisions (b) and (c). Bassett was sentenced to eight years in prison and filed a timely notice of appeal.
In this court, Bassett raises a single issue. He contends the victim’s field identification of him was the result of an identification procedure so impermissibly suggestive that it gave rise to a very substantial likelihood of irreparable misidentification. He argues the trial court committed reversible error by admitting the identification. We find this argument unpersuasive and will therefore affirm.

In this action for premises liability, plaintiff Rosemarie Landry seeks review of an order granting summary judgment to defendant S.C. Beach Hotel Partners, LLC, which owns the Dream Inn Hotel ("Dream Inn") in Santa Cruz. Plaintiff contends that defendant had a duty to protect her from the children who injured her on the stairway of hotel property. We disagree and therefore affirm the judgment.

A jury convicted defendant Orlando Creswell of first degree robbery in concert, first degree robbery, burglary, and battery. It made no findings, however, on allegations of six prior convictions for purposes of the Three Strikes law, three prior serious-felony convictions for purposes of five-year sentence enhancements, and one prior prison term for purposes of a one-year sentence enhancement. The trial court sentenced defendant under the Three Strikes law to two consecutive 25-year-to-life terms for the robbery convictions, one stayed 25-year-to-life term for the burglary conviction, and a consecutive 31 year term for the enhancements. Defendant appealed, and we reversed the judgment with directions to hold a court trial on the allegations. The trial court found the allegations true and sentenced defendant as before. On appeal, defendant contends that the trial court erred by (1) denying his motion to dismiss the allegations grounded on his statutory right to a speedy trial (Pen. Code, § 1382 [failure to bring action to trial within 60 days after filing of remittitur]),[1] and (2) failing to account for custody credits between his original sentencing and resentencing. The People concede the custody-credit issue, and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment.