CA Unpub Decisions

A jury convicted Miguel Garcia of one count of stalking with a court order in effect (Pen. Code, § 646.9, subd. (b)) and four counts of disobeying a court order (Pen. Code, § 273.6, subd. (a)). Garcia admitted two prior stalking convictions and one prison prior (Pen. Code, § 667.5, subd. (b)). Garcia was sentenced to a determinate term of five years in prison, plus an additional consecutive one-year term for the prison prior.
Garcia appeals contending that the trial court abused its discretion in permitting the prosecution to introduce evidence of prior uncharged conduct involving the victim of the charged offenses pursuant to Evidence Code[1] sections 1101, subdivision (b) and 1109. Garcia further contends that section 1109 is facially unconstitutional. We will reject both contentions and affirm.

Defendant and appellant Esmaeil Farshi (Father) appeals a 2011 domestic violence restraining order (DVRO) that prevents him from contacting his former wife, plaintiff and respondent Sepideh Mojtahedzadeh (Mother) and their two children, for a stated period (until 2066). (Fam. Code, § 6200 et seq., the Domestic Violence Prevention Act (DVPA); all statutory references are to this code unless noted.) Father contends the order was issued contrary to his own evidence, or alternatively, it is void because its duration exceeds the five years expressly permitted by the statutory scheme. He also appears to challenge the family court's exercise of discretion in denying his own cross-petition for such an order.
In response, Mother argues that the family court acted well within its discretion and in compliance with the evidence when it issued the restraining order, except she concedes the reporter's transcript of the hearing indicated that the duration of the order should be five years from date of issuance, while the written order is to the contrary. She proposes that the written order be modified on appeal, to comply with the statutory scheme. (§ 6345; Code Civ. Proc., § 43.)

A jury convicted defendant and appellant Jeffrey Allen Shekell of one count of grand theft of personal property (Pen. Code, §§ 487, subd. (a), 504a; embezzlement of leased property; all further statutory references are to the Penal Code unless noted). The court found true a related allegation he committed the offense while on bail pending judgment in another felony offense (§ 12022.1, subd. (b)). Imposition of sentence was suspended and Shekell was placed on probation for three years, conditioned on serving 180 days in county jail, and restitution orders were made.
On appeal, Shekell contends the trial court inappropriately gave a pattern instruction on theft by embezzlement, as modified to add the statutory language of section 504a. He argues this instruction did not properly pertain to the specialized facts underlying this theft charge, nor to his good faith defense, and that the trial court failed in its sua sponte duty to give an instruction on the actual elements of the offense, more precisely focusing upon its fraudulent intent requirement. (People v. Eddington (1962) 201 Cal.App.2d 574, 578-579 (Eddington).)

Defendant Gurparminder Singh Sandhu waived trial by jury. Following trial to the court, he was found guilty of perjury. (Pen. Code, § 118, subd. (a).)[1] Imposition of sentence was suspended and defendant was placed on formal probation for four years on the condition, among others, he serve 30 days of incarceration. He was ordered to pay a $200 restitution fine (id., § 1202.4, subd. (b)), a $40 court operations fee (id., § 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373). Defendant appeals pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We shall affirm.

On appeal, defendant contends that (1) the prospective application of the conduct credit provisions of the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) violates his right to equal protection of the law and (2) the presentence investigation report fee must be stricken because there was insufficient evidence of his ability to pay the fee and the trial court applied the incorrect standard in making that determination. We reject the first contention based on the California Supreme Court’s decision in People v. Lara (2012) 54 Cal.4th 896 (Lara). As to the second contention, we conclude the trial court applied the incorrect standard and remand for a new hearing on the fee using the correct standard. We affirm the judgment as modified.

A jury found defendant Keith Wayne Candler[1] guilty of possessing marijuana inside prison . The trial court found that defendant had one prior strike and sentenced him to prison for seven years four months.
Defendant contends the trial court erred prejudicially by permitting the People’s expert witness to testify on irrelevant matters outside his expertise. Finding the error harmless, we affirm.

This appeal challenges the trial court’s postjudgment order, which granted a judgment creditor’s motion for damages against a third party for a violation of its garnishee duties with regard to a writ of execution and notice of levy. We agree the trial court erred and shall reverse and remand.
Lemoin Brewer and Michael Palmer, partners in Snows Quarry Products (collectively Snows Quarry), obtained a judgment of nearly $1.5 million against L. W. Hall Company, Inc., which formerly did business under the name of Cobalt Crushing (hereafter Hall Inc.), for breach of a lease agreement. In enforcement of this judgment, Snows Quarry served a writ of execution and notice of levy on J. F. Shea Construction, Inc., in February 2010.[1] Snows Quarry brought the instant motion for damages against Shea for the latter’s violation of its garnishee duties, contending Shea had issued three checks in excess of $100,000 to Hall Inc. without good cause after service of the writ of execution and notice of levy. (Code Civ. Proc., §§ 701.010 & 701.020;[2] see 2 Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2012) ¶ 6:577, pp. 6D-62 to 6D-63 (rev. #1, 2012) [judgment creditor may determine garnishee liability by means of motion in underlying action]; see also Ilshin Investment Co., Ltd. v. Buena Vista Home Entertainment, Inc. (2011) 195 Cal.App.4th 612, 628-630 [distinguishing right to recover legal fees in claim in underlying action for breach of garnishee duties (§ 701.020) from independent creditor’s suit (§ 708.210)].) After holding an evidentiary hearing, the trial court granted the motion and entered a “judgment” in favor of Snows Quarry.[3] Shea filed a timely notice of appeal.

On appeal from numerous convictions arising out of his kidnapping and sexual assault of a three-year-old girl, defendant Kody Lee Kaplon contends the trial court erred by: (1) denying his motion for change of venue, (2) destroying jury questionnaires, and (3) failing to instruct on the corpus delicti rule with respect to the sex crimes with which he was charged. We conclude that defendant failed to preserve the denial of his change of venue motion for appellate review by failing to renew that motion or otherwise object to the composition of the jury following a voir dire in which he did not exhaust his peremptory challenges. Because the venue issue is not properly before us, any error in the destruction of the jury questionnaires was necessarily harmless. Harmless, too, was the trial court’s failure to instruct on the corpus delicti rule as to the sex crimes, because the victim’s statements provided the requisite quantum of evidence needed to satisfy that rule. We affirm.

After plaintiffs Rick Sillman and Kim Laird filed their fourth amended complaint for breach of contract and fraud, defendants John Walker and Lisa Talcott moved for judgment on the pleadings. Plaintiffs did not oppose the motion, and the trial court granted it.
In this pro se judgment roll appeal from the ensuing judgment, plaintiffs contend the appeal should be stayed until the trial court can determine whether defendants violated the automatic stay triggered by Sillman’s bankruptcy petition, assert that the trial court should have granted a continuance of the hearing on defendants’ motion, and argue the merits of their claims against defendants. Because plaintiffs have failed to provide an adequate record to assess their first two contentions, and their complaint fails to state a cause of action against defendants, we affirm the judgment.

Defendants Fryda Bryan and Michael Dale Trout were convicted of various offenses arising from the operation of a meth lab. On appeal, they both challenge the denial of their motions to suppress evidence recovered from the house where the lab was located, as well as challenging various aspects of the fines, fees, and penalties imposed on them. Trout also contends the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted manufacture of methamphetamine and in failing to stay his punishment for possession of methamphetamine pursuant to Penal Code section 654.
We find no merit in defendants’ challenges to the search of the house where the meth lab was located and no merit in Trout’s claim of instructional error. We agree, however, that Trout’s sentence for possessing methamphetamine should have been stayed pursuant to Penal Code section 654, and we also conclude that both cases must be remanded for proper calculation and documentation of all fines, fees, and assessments imposed. Accordingly, we will affirm the convictions, but modify Trout’s judgment to stay his sentence for possessing methamphetamine and remand both cases for further proceedings on the fines, fees, and penalties.

In these consolidated appeals, petitioner Howard Zochlinski challenges the trial court’s denial of his petitions for writ of mandate, continuing his efforts to obtain a Ph.D. in genetics from the University of California, Davis (UC Davis), after being disqualified from the genetics graduate department in 1993. In one appeal (No. C065103) he contends the dean of the graduate program lacked authority to reject a decision by the representative assembly of the academic senate to reinstate Zochlinski to the graduate program, and the trial court erred in upholding the dean’s decision. In the other appeal (No. C064600) he contends UC Davis abused its discretion in failing to retroactively award him a Ph.D. under what Zochlinski calls the “Three Paper Rule,” and the trial court erred in its interpretation of the applicable bylaws, rules and regulations. In both appeals, Zochlinski maintains the trial court applied the wrong standard of review.[1]
In part I we conclude the trial court applied the appropriate standard of review in both cases. In part II we conclude the trial court correctly determined that the dean of the graduate program did not abuse his discretion in declining to reinstate Zochlinski. And in part III we conclude the trial court correctly determined that UC Davis did not abuse its discretion in declining to award Zochlinski a Ph.D.
We will affirm the judgments.

Plaintiffs, homeowners Brian Altman et al.,[1] filed suit against home designer/builder, defendant John Mourier Construction, Inc. (JMC), alleging that design defects and construction defects of their homes allowed water intrusion causing damage. Plaintiffs alleged theories of strict products liability (design defect), breach of express and implied warranty, breach of contract, and negligence. By special verdicts, the jury rejected the strict liability and warranty claims, finding the houses did not fail to perform “structurally” as an ordinary consumer would have expected or as represented. The jury nevertheless found JMC breached contracts and was negligent in the design or construction of the houses. The jury awarded plaintiffs damages for negligence and breach of contract.
In a bifurcated bench trial, the trial court awarded plaintiffs some but not all of their investigative costs as damages for successfully prosecuting a tort claim in a construction defect case pursuant to Stearman v. Centex Homes (2000) 78 Cal.App.4th 611 (Stearman).
JMC appeals from the judgment, arguing evidentiary error, insufficiency of the evidence, inconsistency of the verdicts, and duplicative damages. JMC also appeals from the trial court’s refusal to offset the judgment by an amount plaintiffs received from subcontractors’ good faith settlements. (Code Civ. Proc., § 877.)[2]
Plaintiffs separately appeal from the trial court’s partial denial of investigative costs.
We reverse that portion of the judgment that awarded damages for breach of contract, because there was no substantial evidence of contract. We affirm the trial court’s ruling regarding investigative costs. We otherwise affirm the judgment.

Defendant was convicted by a jury of first degree murder (Pen. Code, § 187), attempted robbery (id. § 664/211), and active participation in a criminal street gang (id. § 186.22, subd. (a)). (Further undesignated section references are to the Penal Code.) The jury also found the murder was committed during the attempted robbery (§ 190.2, subd. (a)(17)(A)), both the murder and the attempted robbery were committed for the benefit of a criminal street gang (§§ 186.22, subd. (b), 190.2, subd. (a)(22)) and a principal in the offenses discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)).

Y.A. (mother) filed her petition contending the juvenile court erred in finding, after a contested hearing that there was a substantial risk of detriment to her two year old daughter, J.D., if she were returned to mother’s custody. Petitioner also requested a stay of the juvenile court’s setting of a December 19, 2012 implementation hearing under Welfare & Institutions Code section 366.26.[1] We denied petitioner’s request for a stay of the December 19, 2012 hearing
We hold that there is substantial evidence supporting the juvenile court’s finding that return of J.D. to the physical custody of mother would create a substantial risk of detriment to the physical and emotional well-being of the minor under section 366.2, subdivision (e). The setting of a hearing under section 366.26 terminating parental rights was appropriate. Because the court’s findings and orders were proper, mother’s petition is denied.