CA Unpub Decisions

Defendant and appellant, Lorenzo Micquell Latimer, appeals his conviction for premeditated attempted murder, aggravated mayhem, inflicting corporeal injury on the mother of his child, arson, hit and run driving, and the unlawful driving or taking of a vehicle, with deadly weapon, great bodily injury and prior prison term enhancements (Pen. Code, §§ 664, 187, 205, 273.5, 451, 12022, 12022.7, 667.5; Veh. Code, §§ 20002, 10851).[1] Latimer was sentenced to state prison for life plus 11 years and two months.
The judgment is affirmed.

James Burton Williams appeals the judgment entered after a jury convicted him of first degree murder (Pen. Code,[1] §§ 187, subd. (a), 189), three counts of attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true allegations that appellant personally and intentionally discharged a firearm in committing the murder (§ 12022.53, subds. (b)-(d)), and personally used a firearm in committing the attempted murders (§ 12022.53, subd. (b)), as well as allegations that all of the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced him to an aggregate prison term of 50 years to life plus 59 years, plus three consecutive terms of life with the possibility of parole.[2] Appellant contends that prosecutorial misconduct, instructional error, and juror misconduct compel reversal of the judgment. He also challenges two of his attempted murder convictions on grounds of insufficient evidence, and claims the court erroneously failed to award presentence custody credit.
We shall strike the consecutive 10-year gang enhancements imposed on each of the three attempted murder counts, and order the sentences on each of those counts modified to reflect a 15-year minimum parole eligibility term. We also order the judgment modified to reflect an award of 1,180 days of presentence custody credit, and to correct a clerical error in the abstract of judgment. In all other respects, we affirm.

Defendant Troy Varnado appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, with a finding he personally fired a gun, causing death. Defendant contends his trial attorney rendered ineffective assistance by failing to object to the admission of evidence that he possessed a gun that was shown not to be the murder weapon and ammunition for that gun. We affirm.

Early Strong appeals from an order denying certification of a statewide class of non-exempt African-American employees of respondent Blue Cross of California (Blue Cross), based on disparity in promotion and pay. We find no abuse of discretion and affirm the order.

As the importance of standardized tests has increased for admission to undergraduate and graduate schools, the business of preparing students to take those tests has flourished. This case arises out of the creation of a new Law School Admissions Test (LSAT) preparation business by five employees of one test preparation company who left to start a competing company. This professional move generated seven and a half years of litigation, including three and a half years of vigorously contested pretrial discovery and motions, a three-month trial, four appeals, and multiple writ proceedings.

Real parties Francisco and Antoinette Oroz, as Trustees of the Oroz Family Trust, brought an unlawful detainer action against petitioners Randy Stevens, individually, and doing business as Flamingo Properties/Jiffy Lube, alleging that petitioners failed to pay rent on a piece of commercial property in Rohnert Park, California. Trial was set for May 11, 2010. However, petitioners abandoned the property in April 2010 and, on May 11, formally surrendered possession. The case was re-set for trial on June 23, 2010, to determine the amount of back rent petitioners owe real parties.
Trial commenced as scheduled but the court continued the case to permit real parties to file a first amended complaint alleging breach of contract, which they did on July 22, 2010. On August 25, 2010, petitioners answered the amended complaint and filed a cross-complaint, naming real parties, plus an additional party, Bryan Shiflett, as cross-defendants.[1]
On October 3, 2011, real parties filed a motion to sever the cross-complaint, which the court granted. The court also ruled that petitioners’ affirmative defenses should not be presented during the trial on the complaint, but could be presented at the trial on the cross-complaint. On February 27, 2012, the court granted real parties’ ex parte application for an order confirming the severance of the cross-complaint and re-setting the continued trial. During the subsequent trial proceedings on the complaint, the court did allow testimony regarding waiver, one of the affirmative defenses raised by petitioners, but did not allow testimony on the other affirmative defenses. After hearing additional testimony, on June 29 the court issued an order awarding real parties approximately $34,000 plus interest. On August 7, 2012 the court entered a judgment against petitioners in the amount of $69,422.33.

Defendant Tony Eric Heinricher appeals from a judgment entered following his no-contest plea to involuntary manslaughter and elder abuse. His attorney has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was informed of his right to file a supplemental brief, which he has not done. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.

Argelio Lozano appeals following a jury trial. He was convicted of receiving stolen property, evading an officer, hit and run, and obstructing a peace officer in the performance of duties. He argues that his conviction should be reversed because the trial court improperly restricted his voir dire of prospective jurors, the jury was given misleading and confusing instructions on circumstantial evidence, and the court gave an unwarranted instruction on expert testimony. We conclude that the trial court did not improperly restrict the scope of voir dire, and that Lozano’s challenges to the instructions were forfeited due to his failure to raise them in the trial court. Moreover, we conclude there was no instructional error. Thus, we affirm.

This litigation arises out of a contract between Arntz Builders (Arntz) and the City of Berkeley (the City) for the restoration and expansion of the Berkeley Central Library. In the operative complaint, Arntz alleged against the City causes of action for breach of contract, breach of contract due to subcontractor pass-through or indirect claims, and breach of implied duty to provide complete and accurate plans. After prolonged litigation, which included two prior appeals (Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276 (Arntz I) and Arntz Builders v. City of Berkeley (Aug. 25, 2008, A117744 [nonpub. opn.] (Arntz II)), the trial court granted the City’s motion for summary judgment. Arntz appealed the ensuing judgment, and today, in Arntz Builders v. City of Berkeley, case No. A126838 (Arntz III), we reverse the trial court’s judgment and remand the matter for further proceedings. We incorporate by reference our discussion of the factual and procedural background set forth in Arntz III.
Following entry of judgment, the City moved for attorney fees as the prevailing party under Public Contract Code section 7107, subdivision (f), and the trial court granted the motion in part, awarding fees in the amount of $1,290,063.75. In the matter now before us, Arntz appeals that award of fees. Our reversal of the trial court’s judgment in favor of the City in Arntz III eliminates the basis for the award. Accordingly, we must vacate the attorney fee order as well. (Metropolitan Water Dist. v. Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1436-1437.)

In this action, plaintiff Arntz Builders (Arntz), a general contractor, and defendant City of Berkeley (the City) have been locked in a prolonged battle over who is responsible for construction cost overruns and schedule delays that occurred in the course of the Central Library restoration and expansion project. In more than nine years of litigation, including two appeals, the parties have yet to reach the merits of the underlying disputes.
In the first appeal, we reversed the trial court’s ruling that Arntz’s action was barred in its entirety for failure to file a claim pursuant to Government Code section 910. (Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276 (Arntz I).) In this appeal, we reverse the trial court’s ruling that Arntz’s action was barred in its entirety because (1) it failed to submit to the City a timely claim pursuant to the terms of the construction contract, and (2) it failed to submit an application for leave to present a late claim, pursuant to Government Code sections 930.4 and 911.4, subd. (b).[1]

M.G. is the father of M., the child at issue in this juvenile dependency case. He has filed a petition for extraordinary writ seeking review of the juvenile court’s orders terminating his reunification services and setting a Welfare and Institutions Code section 366.26[1] permanency planning hearing. A self-represented litigant, father states in his writ petition that he believes that he has done everything he has been asked to do and requests further reunification services.
For the reasons stated below, we find that father has not shown that the juvenile court’s findings and orders are not supported by substantial evidence and we will therefore deny the writ petition.

Petitioner Norris Snowden is a 55-year-old American. Respondent Simona N. Campeanu is a Romanian citizen in her early forties. She first met Snowden via the Internet in 2006. Snowden and Campeanu got married in 2009. They did not begin living together until December 2010, after Campeanu obtained the necessary visa and left Romania with her two daughters, moving into Snowden’s home in San Jose. The couple lived together for less than two months before they separated permanently in January 2011.
On March 3, 2011, Snowden filed a petition to annul the marriage, citing Family Code section 2210, subdivision (d), which provides for annulment in the case of fraud. Snowden claimed that Campeanu refused to have sex with him after they married and had concealed from him the fact that she is unfertile. Snowden maintained that Campeanu’s true motive for marrying him was to obtain a green card, allowing her to reside in the United States.
Campeanu denied the fraud allegation and petitioned for dissolution of the marriage. The trial court bifurcated the annulment issue from the dissolution issue and the annulment matter was tried first. The evidence consisted primarily of the testimony of the two parties. The trial court, as the finder of fact, concluded that Snowden had failed to carry his burden of proof and denied the petition. Snowden appeals. He argues that the evidence supports his claim of fraud but he disregards substantial conflicting evidence upon which the trial court relied. Accordingly, we shall affirm.[1]

In this case, we review the denial of a petition for writ of mandate filed by Santa Ana Unified School District (the District), seeking to overturn the decision of the Commission of Professional Competence regarding one of the District’s counselors, Anthony Espinosa. The District accused Espinosa, a counselor at Segerstrom High School, of immoral behavior with two female students, V. and C., and sought to suspend and dismiss him under Education Code section 44934.[1] Espinosa demanded and had a hearing before an administrative law judge and two panel members, both of whom were counselors.
The Commission unanimously found the District’s charges against Espinosa unproven and ordered them dismissed. The District then filed a petition for writ of mandate in the Orange County Superior Court, which petition was denied. The District has appealed the denial of its petition to this court, asserting that it did not get a fair trial before the Commission and that the trial court used the wrong standard of review when it denied the petition. It also asserts substantial evidence did not support the Commission’s decision.
We affirm. The trial court clearly used the correct standard of review, independent judgment, when it examined the administrative record, giving due weight to the Commission’s findings. The District has waived its argument concerning the sufficiency of the evidence – usually a losing proposition on appeal anyway – by preparing a one-sided recitation of the facts in its opening brief. And we conclude that the District’s criticisms of the way the administrative law judge conducted the hearing lack merit. The trial court correctly upheld the Commission’s decision.

Javier Enrique Perez was convicted of one count of sexual penetration with a foreign object on nine-year-old Mario, and one count of committing a forcible lewd act on eight-year-old Andy. In plain English, he raped Mario with a toy light saber, broken at the tip, and forced Andy into participating in that rape. For these crimes he was sentenced to two consecutive terms of 15 years to life, for a total of 30 years to life. Perez was 16 years old when he committed the crimes. He presents four discrete challenges to the judgment.
(1) He claims there was insufficient evidence of force or coercion against the eight-year old.
(2) He claims his sentence is cruel and unusual as shown by recent federal and state high court case law, specifically Miller v. Alabama (2012) ___ U.S. ___ 132 S.Ct. 2455; Graham v. Florida (2010) ___ U.S. ___, 130 S.Ct 2011; and People v. Caballero (2012) 55 Cal.4th 262.
(3) He claims that under Miller, Graham and Caballero, California’s one-strike law is unconstitutional as applied to persons under age 18, because it left the trial court without any discretion to impose something less than 30 years to life.
(4) He claims that under older state high court case law, specifically People v. Dillon (1983) 34 Cal.3d 441 and In re Lynch (1972) 8 Cal.3d 410, his sentence is grossly disproportionate to his offenses.[1]
We affirm. In brief:
(1) There was substantial evidence Perez used both force and intimidation against Andy, including forcibly grabbing him and pulling his pants down.