- Published: sentencing discretion: Riverside Superior Judge John Molloy’s imposition of an enhancement affirmed in People v. Mendoza (RIF128096/E078534)
- A judge does not have to dismiss an enhancement that would add 20 years to a sentence when the dismissal would endanger public safety, the Court of Appeal ruled. Penal Code Section 1385 was recently amended to require judges to dismiss enhancements that would add 20 years to a sentence. The court’s ruling creates an exception to that rule. Gabriel Mendoza was convicted on two counts of first degree robbery with a firearm enhancement in 2007. He had broken into a bedroom and robbed five victims at gunpoint. He was sentenced to 29 years and eight months, including 20 years for the firearm enhancement. The California Department of Corrections and Rehabilitation requested Gonzalez be resentenced in 2021, due to errors in his sentence. Gonzalez asked to dismiss the enhancement under Section 1385, and Molloy denied the request.
- District management: Riverside Superior Judge Sunshine Sykes’s judgment affirmed in Howard Jarvis Taxpayers Assn. v. Coachella Valley Water Dist. (PSC1904774/E079558)
- The Howard Jarvis Taxpayers Association sued the Coachella Valley Water District for paying for a pipeline to golf courses and irrigators with reserves from its domestic water fund. The fund is supported by rates, charges and property taxes. The Association argued that the loan is invalid based on tax reforms Proposition 26 and Proposition 28, because it assigns to domestic customers the costs of a project that benefits golf courses. Sykes dismissed the Association’s case because the loan did not result in the imposition or increase of any water rates or charges. The Association appealed, but the Court of Appeal agreed with Sykes.
- Family: Riverside Superior Judge Kelly Hansen’s termination of parental rights reversed and remanded with directions in In re T.K. (SWJ2000532/E079901)
- The Court of Appeal temporarily reinstated the parental rights of a mother reported to be abusive, after finding that Riverside County failed to carry out a procedural step. The minor, who was adopted, frequently fled her house and reported being hit with a belt and a wooden spoon. The minor cut herself, and once threatened to kill herself if she had to return home. The county placed her in a foster home in 2020, after which her mental health appeared to improve. The minor was placed with her biological aunt, at her own request, Jan. 6, 2022. During an Aug. 17 hearing, the aunt reported being of Mashpee Wampanoag descent, but Riverside County did not ask the tribe if they wanted to claim the minor as required by federal law. Hansen terminated parental rights for the adoptive mother Sept. 26. The mother appealed, arguing that the court should have required more investigation of the minor’s possible Wampanoag descent. The Court of Appeal agreed. They conditionally reversed the termination of parental rights and ordered the juvenile court to further the county’s investigation of the child’s ancestry.
- Labor: Riverside Superior Judge Irma Poole Asberry’s granting of summary judgment affirmed in Sgarlato v. County of Riverside (RIC1809268/E077448)
- Riverside County fired registered nurse Camelia Sgarlato after the county determined she couldn’t perform her job due to an injury. Sgarlato sued the county for disability discrimination, failure to prevent discrimination, failure to accommodate a disability, failure to engage in an interactive process and retaliation. Asberry granted summary judgment in favor of the county, and Sgarlato appealed. The Court of Appeal agreed that Sgarlato did not provide enough evidence to create triable issues of fact.
- Dissolution of partnership: San Bernardino Superior Judge John Tomberlin’s granting of prejudgment interest affirmed in Brady v. Clark (CIVDS1924495/E078212)
- Neal Brady sued Kimberly and Michael Clark to dissolve a partnership. Tomberlin found in a bench trial that the Clarks were entitled to $90,000 from Brady, with an additional $12,700 for interest. The Clarks filed a memorandum of costs. Brady appealed, arguing that the Clarks should not have been awarded interest, and that the trial court should have found him to be the prevailing party for the purpose of awarding costs. Since he did not object to either decision, the Court of Appeal considered Brady’s appeal forfeited.
- Family: San Bernardino Superior Judge Michael Gassner’s awarding of custody affirmed in County of San Bernardino v. G.V. (CSKS1206760/E073933)
- A father appeals the awarding of sole custody to the mother of his three children. The Court of Appeal found that the father forfeited his appeal by failing to raise any clear contentions in his brief, and by not raising them under separate headings.
- Criminal: Riverside Superior Judge F. Paul Dickerson III’s denial of expungement affirmed in People v. Rivera (SWF1707460/E078502)
- Jeremiah Rivera pleaded guilty to oral copulation of a minor Sept. 1, 2017. He received 180 days of jail and was placed on five years of probation. He admitted to using Facebook, YouTube, Candy Crush and YouPorn in violation of his probation in 2018. He had used FaceBook to find his first victim. Rivera petitioned the court to expunge his criminal record on Jan. 6, 2022, arguing that he complied with his probation. Dickerson denied his petition, saying that Rivera’s violation of probation showed that he had a fixation on girls and remained a danger to the community. Rivera appealed. The Court of Appeal found that Dickerson’s decision was within its discretion.
- Restraining order: San Bernardino Superior Judge John Burdick’s granting of restraining order affirmed in Leopoldo v. Leopoldo (FAMMS2100080/E077596)
- Kaleo Leopoldo appealed the granting of a domestic violence restraining order to his ex-wife, Andrea Leopoldo. Kaleo argued that Andrea failed to serve him with her request to delay the hearing on the order. Kaleo was not present when the court granted the restraining order July 20, 2021. The court, however, had rescheduled the hearing to that date at Kaleo’s request. The Court of Appeal found that he should have known about the hearing.
- Criminal: San Bernardino Superior Judge Tony Raphael’s denial of resentencing in People v. Brock (FBA04003/E077983)
- Michael Brock participated in a carjacking with three others. After the robbery, his accomplices fatally shot the victim in a landfill near Barstow. Brock pleaded guilty to murder in 1997, even though he did not fire the gun and stood 20 feet away from the shooting while it happened. He petitioned to vacate his murder conviction under Penal Code Section 1172.6. Raphael denied his petition, and he appealed. The Court of Appeal reversed Raphael’s judgment, and ordered an evidentiary hearing to determine if Brock’s conviction should be vacated.
- Criminal: Riverside Superior Judge John Molloy’s denial of resentencing overturned in People v. Ketsouvannasane (CR57988/E076512A)
- Khamchan Ketsouvannasane was convicted of first degree murder with a robbery-murder special circumstance in 1995. He filed a petition to be resentenced under Penal Code Section 1172.6 in 2019. Molloy denied Ketsouvannasane’s petition. The California Supreme Court’s decision in People v. Strong established precedent that both prosecutors and Ketsouvannasane’s attorneys said would require the court to hold a resentencing hearing. The Court of Appeal ordered Riverside Superior Court to hold such a hearing.
- Criminal: Riverside Superior Judge John Molloy’s denial of resentencing affirmed in People v. Gerardo (RIF078439/E079186)
- Jerry Gerardo fatally stabbed the heart of his lover’s husband in 1997. He was convicted of second degree murder. He filed a petition to be resentenced under Penal Code Section 1172.6 in May 2022. Molloy denied his petition because he was the husband’s direct killer. Lee appealed. The Court of Appeal agreed with Molloy that the section did not apply to Lee. In a dissenting opinion, Fourth District Court of Appeal, Division Two, Justice Frank Menetrez argued that the appellate court could have dismissed the appeal as abandoned.
- Criminal: Riverside Superior Judge Judith Clark’s denial of resentencing affirmed in People v. Thongvilay (CR63659/E079482)
- Pamot Thongvilay accidentally struck a woman’s car during a car chase, while running a red light. He had stolen a car radio from a woman’s car, and was being chased by the woman’s boyfriend. Thongvilay was found guilty of first degree murder, on the basis that the death was caused by his felony automobile burglary. He was sentenced to 25 years to life. He petitioned to be resentenced under Penal Code Section 1172.6, but Clark denied his petition. The judge found that Thongvilay was the direct murderer of the deceased, and that Section 1172.6 did not apply to him. The Court of Appeal agreed on appeal. In a dissenting opinion, Fourth District Court of Appeal, Division Two, Justice Frank Menetrez argued that the court should have dismissed the appeal as abandoned.
- Criminal: Riverside Superior Judge William Lebov’s denial of resentencing affirmed in People v. Avalos (INF053129/E079623)
- Vincent Avalos fired three shots into his landlord’s car Jan. 25, 2006, after he was ordered by Riverside Superior court to vacate his rental house. He missed each time. He was convicted of attempted first degree murder, assault with a firearm and negligently discharging a firearm, and was sentenced to life. Avalos petitioned to be resentenced under Penal Code Section 1172.6. Lebov denied his petition, and he appealed. The Court of Appeal agreed with Lebov that the section does not apply to Avalos’ case.
- Criminal: Riverside Superior Judge John Molloy’s denial of resentencing affirmed in People v. Haynes (RIF104050/E079752)
- Trayvon Haynes was convicted of attempted murder of a peace officer in 2003. He petitioned to vacate his conviction under Penal Code Section 1172.6 in 2022. Molloy denied his petition, and he appealed. The Court of Appeal agreed that Haynes was the direct perpetrator of the attempted murder, and that 1172.6 did not apply to his case.
- Criminal: Riverside Superior Judge Samuel Diaz’s denial of sentencing affirmed in People v. Hernandez (INF1402996/E079459)
- Noel Hernandez fatally shot his sister’s boyfriend, Fabian Martinez, in the head. A jury convicted him of second degree murder, and a judge sentenced him to 40 years to life. Hernandez petitioned to have his sentence vacated under Penal Code Section 1172.6. Diaz dismissed the petition after finding that the section did not apply to Hernandez’s case. Hernandez appealed. The Court of Appeal found that Hernandez’s brief failed to state any error.
