CA Unpub Decisions

Convicted of receiving stolen property (Pen. Code, § 496, subd. (a)), defendant Shannon Michelle Souza appeals from victim restitution orders made after a hearing held 10 months after she was granted probation. At the hearing, claims by two victims were submitted. Defense counsel did not dispute one victim’s claim in the amount of $800 for a stolen purse and its contents, a camera, keys, and a damaged truck, but did dispute the other victim’s claim in the amount of $19,748.20 for stolen diabetes medication worth $1,719.70, which she was not able to replace, and a hospital stay costing $18,028.50. The victim claimed that two days after her medication was stolen, she went to the emergency room, stayed in the hospital for four days, and did not have any insurance to cover the cost. No evidence other than the claims was submitted. Defense counsel argued that defendant’s crime was not the proximate cause of the victim’s medical expenses. The court concluded that the victim “submitted a verified claim under penalty of perjury as to the amount of her injuries. It would appear that she’s alleging that it was a direct result of the loss of her medications.” The court ordered defendant to pay one victim $800 and the other victim $19,748.20 with a 10 percent administrative fee, jointly and severally with her two codefendants.

Defendant Nicolas David Anderson pleaded no contest to three counts of first degree residential burglary (Pen. Code, § 459),[1] and was sentenced to an aggregate term of 10 years in state prison. Defendant appeals without a certificate of probable cause. We affirm the judgment.

The opinion in the above matter, filed July 9, 2012, is modified to insert a footnote at the end of the first full paragraph on page 46, as follows:

In a petition for rehearing, Fru-Con argues that we must grant rehearing because we affirm the summary adjudication on a ground not relied upon by the trial court without having given Fru-Con the opportunity to address that new ground in supplemental briefing. Specifically, Fru-Con contends our conclusion that the section C work was not a separable part of the construction project lies at odds with the trial court’s finding the section C concrete work was separable. We reject Fru-Con’s contention.
Code of Civil Procedure section 437c, subdivision (m)(2), requires us to grant rehearing if we affirm summary adjudication “on a ground not relied upon by the trial court.” (Italics added.) Section 437c does not compel supplemental briefing if we happen to disagree with a finding that was not relied upon by the trial court in granting summary adjudication.

Appellant Fabio[1] R. (father) appeals from the trial court’s judgment declaring his son, Tyler R., a dependent of the court based on its finding that father used inappropriate physical discipline against the child. He also appeals from the order removing Tyler from father’s custody. He contends that neither the judgment nor the order was supported by substantial evidence. As we find the record supports the trial court’s findings, we will affirm both.

On October 9, 2009, Jamal Mosley went to a 7-Eleven store and approached Jegden Singh, an employee of the 7-Eleven store. Mosley demanded that Singh give him money and a cellular telephone. Mosley was holding a screwdriver when he made his demands. Mosley took $300 and a cellular telephone from Singh.
On October 10, 2009, Stephen Iascone found a cellular telephone in the grass outside his apartment. Iascone dialed a number he found in the phone and provided information about where the phone could be picked up. Someone from the sheriff’s department came to retrieve the cellular telephone. When Mosley learned that Iascone had turned over the phone to the sheriff’s department, Mosley told Iascone that he was going to kill Iascone and “burn the place down” (the apartment complex) with Iascone’s children in it.[1]

The juvenile court sustained a petition under Welfare and Institutions Code section 602 alleging that minor Nicholas S. (appellant) committed attempted second degree robbery, a felony in violation of Penal Code sections 664 and 211,[1] and misdemeanor battery in violation of section 242, on minor Brandon T. Appellant contends the evidence was insufficient to support the juvenile court’s findings. Appellant further contends that if the juvenile court’s true finding for attempted robbery is upheld, then the finding for battery must be reversed, because as alleged in the petition, battery is a lesser included offense.
Appellant failed to establish any error on the part of the juvenile court. As alleged in the petition, battery is not a lesser included offense of attempted robbery under the accusatory pleading test, and substantial evidence supports the juvenile court’s findings as to both offenses. We therefore affirm the judgment.

A jury found defendant Kenneth Willie Webb guilty of first degree murder and willful, deliberate, and premeditated attempted murder. The jury also found true allegations that Webb personally and intentionally used and discharged a firearm, causing death. On appeal, Webb contends: (1) the trial court erred in allowing the prosecution to introduce gang evidence, and the court should have granted Webb’s related motions for a mistrial; and (2) the trial court erred in instructing the jury on the right of self-defense by an initial aggressor. We affirm the judgment.

Heriberto Candelario and Brian S. Hernandez appeal from the judgments entered following their conviction of attempted murder (Pen. Code, §§ 664, 187, subd. (a)),[1] assault with a deadly weapon (§ 245, subd. (a)(1)), and aggravated mayhem. (§ 205.) As to attempted murder and assault with a deadly weapon, the jury found true an allegation that appellants had personally inflicted great bodily injury. (§ 12022.7, subd. (b).) As to attempted murder, the jury found true an allegation that appellants had personally used a knife. (§ 12022, subd. (b)(1).) The jury found not true an allegation that the attempted murder had been committed deliberately and with premeditation. For aggravated mayhem, appellants were sentenced to life imprisonment with the possibility of parole. Sentences for attempted murder and assault with a deadly weapon were stayed pursuant to section 654.
Hernandez contends that the trial court erroneously denied his section 1118.1 motion for a judgment of acquittal on the aggravated mayhem charge. Candelario contends that the evidence is insufficient to support his conviction of this offense. We affirm, except that we modify Hernandez's judgment of conviction to award him one additional day of presentence custody credit.

Defendant Osvaldo Hernandez appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, attempted murder, and possession of a firearm by a felon, with gang and personal gun-use findings. Defendant contends the trial court erred by denying his motion for a pretrial lineup, excluding defense evidence, denying his motion for a new trial, instructing on heat of passion using CALCRIM Nos. 570 and 570A, and not staying the sentence on the felon in possession conviction. We agree that the sentence on the felon in possession count should have been stayed under Penal Code section 654 (undesignated statutory references are to the Penal Code), but otherwise affirm.

Allen Vanek (trustee), Trustee of the Miriam C. Vanek Revocable Trust dated June 14, 2008 (trust) appeals from an order made pursuant to former Probate Code section 21320 (section 21320).[1] Ashley B. Dease and Alexander Dease (collectively respondents), beneficiaries of the trust, filed a petition pursuant to section 21320 (safe harbor petition) in order to determine if their proposed petition to compel accounting and for order surcharging successor trustee (proposed petition) constituted a contest within the terms of the no contest clause of the trust.
The superior court determined that the proposed petition does not constitute a contest of the trust. We affirm.

Foster Wheeler Energy Corp. (Foster Wheeler) appeals from a judgment entered after a jury trial on John M. Nolen (John) and Sarah Nolen’s (Sarah) (collectively the Nolens) claims of strict liability and negligence arising from John’s exposure to asbestos during his work as a seller of water treatment chemicals for his employer Nalco Chemical Company (Nalco), from 1976 through 1979. The jury found Foster Wheeler liable to the Nolens and awarded them economic and noneconomic damages of over $8 million.
We find that under the recent decision of the California Supreme Court in O’Neil v. Crane Co. (2012) 53 Cal.4th 335 (O’Neil), Foster Wheeler is not liable for injuries arising from asbestos-laden products to which John was exposed. Therefore we reverse.

Crane Co. (Crane) appeals from a judgment entered after a jury trial on Chief Y.R. Brewer (Mr. Brewer) and Gale Brewer’s (collectively Brewers) claims of strict liability and negligence arising from Mr. Brewer’s exposure to asbestos-laden products used with valves manufactured by Crane. The jury found Crane liable to the Brewers on a strict liability design defect theory, and awarded the Brewers total economic and noneconomic damages of approximately $9.7 million. Crane was then determined to bear two percent of the fault. We find that under the recent decision of the California Supreme Court in O’Neil v. Crane Co. (2012) 53 Cal.4th 335 (O’Neil), Crane is not liable for injuries arising from the asbestos-laden products to which Mr. Brewer was exposed. Therefore we reverse.

Plaintiffs and appellants Eugene W. Rollin, Jr. (Rollin) and Elizabeth Rollin (collectively, plaintiffs)[1] appeal from the judgment entered in favor of defendants and respondents Foster Wheeler, LLC (Foster Wheeler), Yarway Corporation (Yarway), and Elliott Company (Elliott) (collectively, defendants) after the trial court granted defendants’ motions for judgment notwithstanding the verdict (JNOV) and, in the alternative, their motions for a new trial.[2] Rollin, who suffers from malignant pleural mesothelioma, claimed to have been exposed to asbestos fibers released from equipment manufactured by defendants during his employment at Mobil Oil Company’s (Mobil) Torrance refinery. After a three-week trial, the jury returned a verdict in favor of plaintiffs on their claims for strict liability design defect, strict liability failure to warn, and negligence.

Plaintiff asserts class action and individual claims for violations of the Labor Code. He alleges that defendant, his former employer, provided paystubs containing misstatements in violation of Labor Code section 226.[1] An employer, however, cannot be liable for misstatements on paystubs unless it knowingly and intentionally makes such misstatements and an employee suffers injury as a result. Plaintiff cannot prove either element in this case.
Plaintiff also asserts causes of action based on section 226.7 on the ground defendant failed to ensure that plaintiff and other class members took all meal and rest periods they were entitled to take. California law, however, only requires that employers make available such periods, which defendant did here. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017 (Brinker).
We affirm the trial court’s order granting defendant summary adjudication with respect to plaintiff’s section 226 and section 226.7 causes of action.