Week in Review (March 19, 2018)

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Week of:                       March 12, 2018
Publication Date:        March 19, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • The People v. Beatrice Aguirre; where the court of appeals affirmed the trial court’s refusal to resentence Ms. Aguirre on felony forgery charges when Ms. Aguirre advanced the argument that each $100 bill should be treated as a separate ‘count’ of forgery; the court noted that the largest printed denomination in the United States is the $100 bill, and Proposition 47 was not intended to eliminate felony forgery.

From the Second Appellate District –

  • The People v. Kevin Mireles; the court of appeals affirmed the second degree robbery conviction of Mr. Mireles for placing a $4.47 Universal Product Code sticker on a bottle of Home Depot weed killer that is priced at $39.98 and using force to try to escape a security guard. The Court held that the crime was not one of theft by false pretenses under the 2013 People v. Williams, as Home Depot never consented to the transaction.
  • Gevel Saheli v. White Memorial Medical Center, et alterius; where the appeals court reversed the trial court’s partial denial of a motion to compel arbitration; the appeals court held that the procedural requirements of the Ralph Act and Bane Act were pre-empted by the Federal Arbitration Act under the factual circumstances of this case.
  • In The People v. Christian Almanza; the appeals court considered whether to remand Mr. Almanza’s case to the trial court based on the recently enacted Senate Bill 620, which grants court’s discretion to strike enhancements; it held that there was no rational basis to do so when the trial court sentenced Mr. Almanza to 137 years based on consecutive sentences for his third-strike, First Degree Murder conviction, striking the enhancements would only reduce the sentence to 112 years, and the court issued consecutive rather than concurrent sentences for his crimes.
  • Quanta Computer Inc. v. Japan Communications Inc.; where the appeals court affirmed dismissal on the grounds of forum non conveniens as to the dispute between a Taiwanese Company and a Japanese Company, whose sole relationship with California was that the sale contract between the parties specified that any dispute was to be resolved in a California Court under California law.

From the Third Appellate District –

  • Heriberto Ponce et alterius v. Wells Fargo Bank et alterius; where the court of appeals reversed the trial court’s granting of terminating sanctions in a mortgage foreclosure case where the plaintiffs could make a non-frivolous argument that Wells Fargo was not a predecessor in interest to a prior settlement agreement.
  • The People v. Derek Antonio Johnson; where the appeals court held that the trail court’s failure to hold a mental competency hearing violated Mr. Johnson’s due process rights when there was substantial evidence to doubt his mental competence in the form of engaging in multiple acts of self-mutilation, shouting at voices in his head, being unable to quiet himself during court proceedings, defecating in his pants, and being placed in the prison’s medical unit, given medication, and placed on suicide watch.
  • The People v. Kim E. Jordan; where the court of appeals affirmed the trial court’s imposition of penalty assessments for criminal laboratory analysis and drug program fees, and held that by failing to raise these issues in a prior appeal, Mr. Jordan waived his appeal on these issues.

From the Fourth Appellate District –

  • MMM Holdings, Inc. v. Marc Reich; where the appellate court affirmed entry of judgment in favor of Mr. Reich on an Anti-SLAPP motion, where the plaintiffs brought a suit against Mr. Reich based on his use of certain purportedly stolen documents in pursuing litigation against plaintiffs as an attorney representing an opposing party in a prior action.
  • AO Alpha-Bank v. Oleg Nikoleavich Yarkovlev; where the court of appeals reversed the trial court’s entry of judgment in favor of Mr. Yarkovlez; it found that Alpha Bank’s foreign judgment from a Russian court was enforceable even if Mr. Yarkovlez did not receive actual notice so long as the notice sent was reasonable calculated to impart actual notice. Here notice was sent by registered mail to the address in the surety agreement between the parties.
  • In re the Marriage of Donald Pearson and Tonya Pearson; the court of appeals affirmed in part, on the trial court’s determination that the term ‘bonus’ was susceptible to interpretation, and that in only referred to Mr. Pearson’s performance-based cash bonus in the marital settlement agreement and in awarding Mr. Pearson $50,000 in sanctions against Ms. Pearson; but reversed on the court’s determination of Ms. Pearson’s ability to work, finding that there was not substantial evidence to support the court’s determination.
  • Edward Davidson v. Seterus Inc. et alterius; where the appeals court reversed the trial court’s determination that defendant was not a debt collector under the Rosenthal Act, when the law is ambiguous as to whether the act applies to mortgage collectors, and California law requires that statutes for the protection of the general public are broadly construed to protect the public when there is any ambiguity.
  • Don’t Cell Our Parks v. City of San Diego [Real Party in Interest] Verizon Wireless; where the court of appeals affirmed judgment in favor of defendants, holding that the City had discretion to allow Verizon to construct a wireless telecommunications facility in a park without two-thirds vote by San Diego residents, and that the project fell within the small facility exemption under CEQA.
  • Petrolink, Inc. v. Lantel Enterprises; where the court of appeals modified the entry of judgment in favor of Petrolink on the specific performance of a real estate purchase, finding that Petrolink is entitled to an offset of all rents paid after the option to purchase was validly exercised in order to place the parties in the position they would have been had the contract been fully performed.
  • George Corley v. San Bernardino County Fire Protection District; where the appeals court affirmed entry of judgment in favor of Mr. Corley on an age discrimination claim, where a jury found that Mr. Corley’s age was a substantial motivating reason for the District’s termination of his employment; the court held there was no reversible error in the jury instructions.

From the Fifth Appellate District –

  • Big Oak Flat-Groveland Unified School Disctrict et alteruis Superior Court [Real Party in Interest] Jane Doe; where the court granted the school district’s petition for a writ of mandate, holding that Jane Doe’s failure to timely comply with the school district’s claim presentation requirements meant that she could not present a claim for childhood sexual abuse.

Finally, From the Sixth Appellate District –

We have no cases this week.

Appellate Decisions – In Depth Review

The People v. Kevin Mireles

    Justices Johnson and Rothschild affirmed the judgment entered against Mr. Mireles by Los Angeles County Superior Court Judge Kim. The case is based upon Mr. Mireles walking into Home Depot, placing a UPC sticker that scanned for $4.47 on a bottle of weed killer that sells for $39.98, and trying to leave the store after pretending to purchase the item as the self-checkout line.  When Mr. Mireles attempted to leave the store, he was confronted by store security, and Mr. Mireles swung a closed fist at the security officer before being restrained until the police could arrive.  Mireles was convicted of robbery, which requires that the jury make a determination that ‘force, fear, or intimidation’ were used during the course of the theft.  On appeal, Mr. Mireles argued that the most he should have been convicted of was a theft by false pretenses, but the court held that the key conduct for differentiating a crime of false pretenses from a crime of larceny occurs at the time of the taking – here, Mr. Mireles never received consent to purchase the item from the store for the wrong amount, and therefore the crime constituted one of larceny.

    In a separate concurring and dissenting opinion, Justice Chaney argued that the majority’s analysis was flawed as to the differences between theft by larceny or by false pretense.  Specifically, Justice Chaney argued that the majority ignored that between Mr. Mireles taking the weed killer off the shelf and being apprehended, Mr. Mireles engaged in a transaction with Home Depot for the purchase of the weed killer, and it was that transaction that ultimately defined the crime, as his pretending to pay for the weed killer is where the crime occurred.

Gevel Saheli v. White Memorial Medical Center, et alterius

    Justices Bigelow and Hall reversed Los Angeles County Superior Court Judge Hammock decision to deny arbitration as to two causes of action under the Ralph Act and the Bane Act, which are causes of action based on alleged hate crimes. Under the court of appeals’ analysis of the arbitration agreement, it found that the trial court erred when it incorporated state law provisions under the Ralph and Bane Acts that make arbitration agreements unenforceable ab initio, or else require a knowing and voluntary waiver of rights under the relevant act to be proved by the party attempting to enforce arbitration.  Under the appeals court’s pre-emption analysis under the Federal Arbitration Act and U.S. Supreme Court precedent, the court ultimately reasoned that claims under the Ralph and Bane acts were fundamentally different from Private Attorney General Actions, and thus could not avoid preemption – rendering the arbitration agreement enforceable as to those two causes of action.

    In a concurring opinion, Justice Rubin stated that while he agreed with this result as the correct result under the compulsion of U.S. Supreme Court precedent, he fundamentally disagreed with the continuing trend towards compelling more and more cases into arbitration.  Specifically, Justice Ruben note that “Our opinion today facilitates the elimination through arbitration clauses of civil trials for Bane Act and Ralph Act violations without regard to whether the conduct is grievously violent or much less so,”  and argued that the California Legislature should be within its power to determine that arbitration of hate crimes is unconscionable, against public policy and unenforceable.

Supreme Court – Roundup

This Week, the Supreme Court published two cases, including:

  • In re Vincente Benavides Figueroa; in a habeus corpus petition for a conviction and death sentence previously confirmed by the Court for the rape and murder of Consuelo Verdugo in 1991, the Court vacated the judgment in its entirety on the basis of the State’s concession that that false evidence was introduced at trial regarding the alleged rape. While the State argued for a reduction from First Degree Murder to Second Degree Murder, the court considered such a reduction to require it to posit a radically different trial than the one that petitioner received, and was therefore required to vacate the judgment.
  • The People v. Veronica Lorraine DeHoyos et alterius; in this case the court addressed a procedural issue related to Proposition 47, determining that defendants who were serving felony sentences on the measure’s effective date but whose judgments were on appeal and thus not yet final are required to follow the statutory resentencing procedures, including the risk assessment, prescribed by Penal Code Section 1170.18.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that six cases were accepted during the week of March 12, 2018, including:

  • Wishnev v. Northwestern Mutual Life Ins. Co.; where the Ninth Circuit asks about the interaction of the California Constitution and California Code related to lenders.
  • People v. Bueno; where the question of the propriety of lab fees will be considered when the conviction is based on conspiracy to commit drug-related crimes.
  • People v. Martinez-Carreon; asks about the liability for aiders and abiders in a premeditated murder case in light of new guidance from the US and State Supreme Courts.
  • People v. McCurdy; will seek to address another Proposition 47 issue related to what happens when sentencing enhancement becomes a misdemeanor.
  • People v. Shaw; will answer the question of a pair of pliers constitutes ‘burglary tool’ under Penal Code Section 466.
  • Finally, in People v. Tabron; the Supreme Court will too to answer the question of whether a trial court’s failure to instruct certain elements of murder are harmless error when the jury found a felony murder special circumstance.

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