CA Pub. Decisions

Where trial court made a determination on the merits that party was not entitled to recover attorney fees, and appeals court reversed and remanded for a hearing on the amount to be awarded. The hearing was a new trial under Code of Civil Procedure Sec. 170.6(a)(2), which allows a successful party on appeal to file a peremptory challenge after reversal when the same trial judge is assigned to conduct a new trial on remand. Writ Granted.

There was insufficient evidence as a matter of law for trial court to find that defendant's prior second-degree burglary convictions were for serious felonies for purposes of three strikes sentencing, since second-degree burglary necessarily means a nonresidential burglary, and residential burglary is the only form of burglary that constitutes a serious felony for three-strikes purposes. Convictions Affirmed. Sentencing vacated and remanded.

Evidence was sufficient to support finding that 60-year-old victim was a dependent adult for purposes of Penal Code Sec. 368(b)(1) and (f) where, though she could carry out normal activities, her ability to do so was restricted, as she could walk only with a leg brace and cane, and had difficulty speaking, comprehending, and recalling.

Evidence was sufficient to support torture conviction where defendant attacked victim two days after she asked him to move out of her residence, caused deep cuts to victim's face that resulted in scarring and disfigurement, and had previously threatened to hurt and kill her numerous times. Evidence was sufficient to support misdemeanor child endangerment conviction where it showed that defendant knew his child was at the scene during the attack and, although the child did not witness the attack, he saw and was traumatized by seeing its bloody aftermath. Judgment Affirmed.

Summary judgment for defendants in medical malpractice case, based on determination that defendants met the standard of care as a matter of law, was error where defendant's expert's declaration failed to explain the reasons for his opinion or to explain what standard of care was applicable.

Workers' Compensation Appeals Board properly affirmed the judge's finding that individual employed as state correctional officer in a prison was not acting within the scope of his employment as a peace officer when injured while voluntarily stopping to help at an accident scene on the way to work, where there was no evidence that his job duties required him to stop and render aid at an accident scene outside of prison premises, and he had no authority to act as a correctional officer outside of the prison. Judgment Affirmed.

Where Department of Child Support Services, in registering an out-of-state child support order, listed zero dollars in arrears, and neither mother nor father challenged the registration and arrears statement within time provided by statute, mother was not precluded from later objecting to an understatement of preregistration arrears under Family Code Sec. 4957, which binds a nonregistering party who fails to object prior to registration only with respect to any matter that "could have been asserted at the time of registration."
Order Affirmed.

Evidence Code Sec. 1158--which provides that medical care providers may charge a patient's attorney no more than 10 cents a page for copies of medical records--gives patients a private right of action to enforce its provisions.
Judgment Reversed.

Where defendant was convicted of possessing methamphetamine, court abused its discretion in imposing as one of the terms of probation that defendant "[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes." Restrictions on pet ownership as probation condition require showing that such ownership is illegal or that restriction is related to offense of conviction or is necessary for proper supervision.

Under former Penal Code Sec. 803(g), extending time in which certain sex crimes against children could be prosecuted if certain requirements were met, trial court correctly instructed jurors that prosecution was required to prove by preponderance of the evidence that charges were filed within one year of initial complaint to police and was required to corroborate victim's allegations by clear and convincing independent evidence. Due process clauses do not require that such allegations be proven beyond a reasonable doubt. Where victim placed pretextual telephone call to defendant at urging of police, admission of the call's contents to impeach defendant's testimony did not violate right to silence, and where call was placed prior to filing of formal charges, police use of child to obtain incriminating statements did not violate right to counsel. Imposition of 15-year-to-life sentence under One Strike Law violated ex post facto clauses where jurors were not required to make a unanimous finding that the crime occurred after that law took effect, and evidence on the issue was in conflict.

Trial court properly found that defendant did not establish prima facie case of group bias during jury selection in which all three prosecution peremptory challenges were to potential jurors with Hispanic surnames, where defendant accepted the jury without objection after one sidebar conference, numerous Hispanics remained on the panel of prospective jurors, and there was nothing in the record demonstrating the ethnicity of potential jurors, challenged jurors, or seated jurors other than the list of their names. Judment Affirmed.

A modification decision.

California Uniform Commercial Code Sec. 9403, which makes a waiver of defenses against an assignee enforceable--not Sec. 10407, which says that a lease is only enforceable on delivery of goods--is the governing provision when a waiver of defenses is included in a lease. Since the waiver of defenses clause in this lease is enforceable by Plaintiff as assignee of the lease under California Uniform Commercial Code
section 9403, and Defendant has not established any defense cognizable under that statute, or shown any other error, the judgment is affirmed.

Plea condition requiring defendant to leave the state indefinitely and miss sentencing hearing was constitutionally improper. Thus voiding the plea bargain, because it was not narrowly tailored or reasonably related to defendant's crimes of domestic violence, and public policy precludes banishment of felons from the state, and it required defendant to commit another felony, i.e., flee the jurisdiction to avoid sentencing. Where trial judge sanctioned invalid plea bargain banishing defendant from the state, and judge's four-year sentence for domestic violence raised issue of judge's animus toward defendant. The interests of justice necessitated that, if defendant were to move to disqualify the judge, another trial judge should hear further proceedings, even though the request would be untimely as a matter of statute.