CA Unpub Decisions

Elvin Orlando Estrada appeals from the judgment entered following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with personal use of a dangerous or deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The court sentenced appellant to prison for 26 years to life. We affirm the judgment.

Christopher Harris and Kwana Harris appeal the judgments entered following their convictions by jury of first degree murder of Eric Alexander. (Pen. Code, § 187.) Christopher Harris also appeals his conviction by jury of second degree murder of Kevin Decoud. The jury found Christopher Harris committed these offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)), and committed multiple offenses of murder (Pen. Code, § 190.2, subd. (a)(3)). The jury also convicted Christopher Harris of second degree robbery (Pen. Code, § 211) in which he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1); the jury found both of these offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).
On appeal, Christopher Harris contends the trial court erred in admitting into evidence Kwana Harris’s hearsay statement identifying him as Alexander’s killer and in failing to instruct the jury that Kwana Harris’s statement required corroboration. Kwana Harris contends the trial court erred in admitting gang evidence as to her and her defense counsel rendered ineffective assistance. We reject appellants’ claims of error and affirm the judgments.

When defendant and appellant Jose Guillen (defendant or Guillen) was 17 years old, he and three adults committed an armed robbery during which defendant personally shot and killed one of the two victims. A jury convicted him of first degree special circumstance murder, and in 2009, the trial court sentenced him to life without the possibility of parole (LWOP). We affirmed the judgment and the California Supreme Court denied review. The United States Supreme Court thereafter granted defendant’s petition for writ of certiorari, vacated his judgment, and remanded the case to this court for further consideration in light of Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller). (Guillen v. California (2012) 567 U.S. __ [133 S.Ct. 69].)[1]
On remand, we adopt and incorporate our opinion in Aleman I, including the analysis and conclusions as to defendant’s contentions made in the original briefing, with the exception of the argument that the Eighth Amendment to the United States Constitution prohibits an LWOP sentence under the circumstances of this case. We now reconsider that contention in light of Miller, and again conclude that defendant’s sentence did not violate the Eighth Amendment. We affirm the judgment.

Kenneth Seastrom, the Conservator of the Person for Wardell D. Johnston, Jr., appeals from an order granting the Petition for Order to Sell Residence of Conservatee filed by Johnston’s Conservator of the Estate, Kim Schwarcz. Appellant contends the trial court erred, and violated his due process rights, in granting respondent’s petition and authorizing sale of Johnston’s home without an evidentiary hearing. He additionally seeks remand on the ground that proper notice was not given to Johnston. We agree with respondent’s contention that appellant lacks standing to bring this appeal and, therefore, affirm.

This is an appeal from judgment following the trial court’s denial of a petition for writ of administrative mandamus (writ petition) filed by appellant Henry Kirk. The underlying administrative proceedings resulted in a decision by respondent Retirement Board of the City and County of San Francisco (board) to deny appellant’s application for retirement disability based on a heart condition that rendered him unfit to continue his service with the San Francisco Police Department. For reasons discussed below, we affirm the judgment.

After preparing an environmental impact report, respondent City and County of San Francisco (city) approved a project to rezone land along the Market Street corridor near Octavia Boulevard and to redevelop 22 vacant parcels created by the removal of the elevated Central Freeway. The city amended its general plan to include a new Market and Octavia Area Plan and conformed its planning code and zoning maps. Plaintiffs Coalition for Adequate Review and Alliance for Comprehensive Planning filed a writ petitionhttp://www.fearnotlaw.com/ in the trial court challenging the city’s amended general plan and environmental review of the project. The trial court denied relief and we affirm.

Defendant Christopher Joseph Silva pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) pursuant to a plea agreement. Following defendant’s completion of a residential drug treatment program, the trial court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends that the trial court erred by imposing gang-related probation conditions. We conclude that some of the probation conditions must be modified. As modified, the order is affirmed.

Defendant Hector Manuel Gonzalez appeals after conviction, by jury trial, of two counts of residential burglary (Pen. Code, § 459),[1] one count of robbery (§ 211), and one count of false imprisonment (§ 236). He admitted three prior prison term allegations. (§ 667.5, subd. (b).) Defendant was sentenced to an 11-year, four-month prison term and ordered to pay a $6,600 restitution fine.
On appeal, defendant contends one of the burglary convictions must be reversed due to insufficient evidence that the residence was inhabited and because the trial court gave the wrong circumstantial evidence instruction. Defendant contends the robbery conviction must be reversed for three reasons: (1) because the jury might have convicted him even if it found he used force to escape, rather than to take the property; (2) because there was insufficient evidence that the victim had constructive possession of the property; and (3) because the trial court directed a verdict by telling the jury that a caretaker on duty has constructive possession of the homeowner’s property. Defendant also contends that pursuant to section 654, the trial court should have stayed the one-year term imposed for his robbery conviction and a portion of the restitution fine.
We agree that the term for defendant’s robbery conviction should have been stayed pursuant to section 654 and that the restitution fine should have been $4,000. We will order the judgment modified.

Defendant Doreman Nichols Hall appeals from a judgment of conviction entered after a no contest plea to two counts of failing to properly register as a sex offender (Pen. Code, § 290.011, subd. (b)),[1] one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1)) and one count of possessing a short-barreled shotgun (former § 12020, subd. (a)(1)).[2] The trial court sentenced defendant to the lower term of 16 months in prison, with each count running concurrently. On appeal, defendant contends the trial court erred in denying a section 1538.5 motion to suppress evidence obtained in the warrantless search of his bedroom. Finding no error, we will affirm the judgment.

In a prior appeal, this court reversed a $987,000 judgment in favor of two of the petitioners[1] because there was insufficient evidence to support the damages awarded. (See JSA Depot, Inc. v. Foreverlawn Inc. (Aug. 31, 2011, G044164) [nonpub. opn.] (JSA Depot I).) Our disposition stated, “The judgment is reversed. No argument having been made on appeal regarding liability, the matter is remanded for a new trial on the amount of damages only.” (Ibid.)
On remand, the trial court entertained various motions by the parties and eventually issued two pertinent rulings. First, the court granted respondent Foreverlawn, Inc.’s (Foreverlawn) motion to “reinstate” its cross-complaint, which had been voluntarily dismissed by Foreverlawn in the course of the first trial. Second, in response to a motion in limine pertaining to the scope of the retrial, the court ruled it would “allow evidence of liability sufficient to tie to damages in the 8 defined categories [of alleged breaches of contract]. The special verdict shall ask the jury in which of 8 ways the conduct of defendant caused damages.” The court set trial for August 27, 2012.

Plaintiff Nancy Loo was employed by defendant Klingbeil Capital Management, Ltd. (Klingbeil), as the property manager of an apartment complex that was managed by Klingbeil and owned by KMF Merrimac Woods, LLC (KMF). After Loo’s employment with Klingbeil was terminated, Loo filed a complaint with the California Labor Commissioner, alleging various wage and hour claims against Klingbeil. In September 2009, KMF filed an unlawful detainer action against Loo for failure to pay rent. (KMF Merrimac Woods, LLC v. Loo (Super. Ct. Orange County, No. 30‑2009‑00299377 (the KMF action).) Loo filed a cross‑complaint in the KMF action, asserting claims against Klingbeil and KMF for wrongful employment termination and wrongful eviction.
After the Labor Commissioner issued an order, decision, or award, denying Loo any recovery (the Labor Commissioner’s decision), Loo sought to appeal that decision by filing a motion for leave to amend her cross‑complaint in the KMF action, to add a claim appealing the Labor Commissioner’s decision and requesting a trial de novo; the trial court denied her motion to amend.
Loo thereafter filed a State of California Department of Industrial Relations, Division of Labor Standards Enforcement form 537 notice of appeal (DLSE form 537) in the superior court, and thus commenced the instant action. The trial court dismissed the instant action on the ground Loo’s appeal from the Labor Commissioner’s decision was untimely under Labor Code section 98.2, subdivision (a) (section 98.2(a)), and awarded Klingbeil prevailing party attorney fees and costs. (All further statutory references are to the Labor Code unless otherwise specified.)
We reverse. The sole issue before us is whether the trial court erred by dismissing the instant action as untimely under section 98.2(a). We conclude Loo’s appeal was timely because, two months before filing that appeal, she had sufficiently requested appellate review of the Labor Commissioner’s decision and requested a trial de novo in a pending case within the timeframe required under section 98.2(a).

Plaintiff Randy Lee Soderstrom (a former criminal defendant) appeals from a judgment of dismissal of his legal malpractice action after the court set aside a stay and then sustained, without leave to amend, the demurrer of defendants Ray Chen (his former criminal defense lawyer), Marri Derby, and the County of Orange (sued as the Orange County Alternate Defender) on grounds the action was barred by the statute of limitations. Plaintiff contends he was entitled under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia) to a stay of proceedings on his malpractice action while he sought exoneration through postconviction relief. We disagree and affirm the judgment.

Anthony Gregorio died of leukemia in 2007. Anthony’s widow, Anne Gregorio,[1] contends Anthony developed leukemia as a result of work-related exposure to chemical products, including, but not limited to, two specific products manufactured by Rust-Oleum Corporation (Rust-Oleum). Rust-Oleum filed a motion for summary judgment, arguing Anne could not prove Anthony’s exposure to Rust-Oleum’s products; exposure is a necessary component of causation in a toxic tort case. The trial court granted the motion; Anne appeals.
We conclude that the evidence Anne offered in opposition to the summary judgment motion raised a triable issue of material fact as to Anthony’s exposure to the Rust-Oleum products identified by Anne in the second amended complaint. We therefore reverse.
Statement of Facts and Procedural History

Defendant Adrian Garduno Zuniga was convicted of possessing and transporting a controlled substance, and pled guilty to driving with a suspended license. Defendant does not challenge his convictions; the only issues raised on appeal are related to defendant’s sentence.
First, defendant argues, and the Attorney General concedes, that the trial court imposed an invalid restitution fine. We will order the judgment modified to reflect the correct fine amount.
Second, defendant argues the trial court incorrectly calculated his presentence custody credits. We agree, and remand the matter to the trial court to make a correct award of presentence custody credits.
Finally, defendant argues the trial court erred by ordering him to pay reasonable probation costs without first determining his ability to pay. We agree, and remand to allow the trial court to make a determination of defendant’s ability to pay reasonable probation costs.