CA Unpub Decisions

A court found true allegations minor J.M. dissuaded a witness and committed a battery. The court granted probation and ordered minor to serve 180 less 24 days in custody.
Minor argues the court failed to orally pronounce a maximum term of confinement and the restitution fine amount, and imposed an overly broad curfew condition. The Attorney General concedes these points, and we agree.
Minor also asserts the court violated Penal Code section 654 (section 654) by imposing sentence on counts 1 and 2, but we find this contention to be meritless.
Therefore, we will vacate the sentence and remand the matter with directions to conduct a further sentencing hearing, but otherwise affirm the conviction.

Y.D. (mother) appeals from the juvenile court’s jurisdictional and dispositional orders regarding her infant daughter, I.M. (child), who was born in January 2016. Mother’s challenge to the court’s dispositional order is by implication only—that is, her principal challenge is to the jurisdictional finding, arguing that because jurisdiction was inappropriate, the dispositional order necessarily fails. With regard to the court’s exercise of jurisdiction, mother claims that it was not supported by substantial evidence. We disagree and, accordingly, affirm.

Appellant K.B. (Father) appeals from an order terminating his parental rights over his now seven-year-old son A.B. (the Minor) under Probate Code section 1516.5. The order frees the Minor to be adopted by his maternal grandparents and legal guardians, respondents L.L. (Grandfather) and G.L. (Grandmother) (together, the Grandparents). Father contends the trial court abused its discretion in terminating his parental rights under section 1516.5 because substantial evidence does not support the court’s finding that adoption would be in the Minor’s best interests. We reject Father’s contention and affirm the order terminating his parental rights.

A jury found defendant Robert Black, Jr., guilty of a first degree burglary committed in October 2006. Defendant was sentenced to state prison for a total term of 38 years to life. (Black I, supra, 2008 WL 3919175 at p. *1.) Defendant appealed his conviction, arguing that the magistrate violated his constitutional rights by refusing to let him testify at the preliminary hearing without first waiving his right to counsel.
Through respondent California Appellate Project (CAP), this Court appointed attorney Catherine White to represent defendant on appeal. One of several arguments that White advanced on defendant’s behalf, was that the court erred in refusing to permit defendant to testify at his preliminary hearing without first waiving the right to counsel.

Plaintiff Dave Barela applied with defendant Evelynn S. Townley for a joint modification from defendant Nationstar Mortgage, LLC (Nationstar) of the loan on Townley’s home of over 25 years. In return, Barela expected a 50 percent equity interest in Townley’s home. After Nationstar approved a loan modification for Townley, she informed Barela that two attorneys had advised her against the joint loan modification arrangement with Barela because it would constitute loan fraud and because she would be “crazy” to split her home’s proceeds with him. Barela’s lawsuit against Townley and Nationstar ensued.

Appellants Benjamin H. Kwon and Castle Eurasia Corporation challenge the trial court’s order confirming an arbitration award in favor of respondents, E*TRADE Clearing LLC, E*TRADE Securities LLC, and several individuals employed by E*TRADE businesses. Kwon filed claims in arbitration against E*TRADE claiming that E*TRADE had acted improperly in temporarily denying Kwon access to funds that he had deposited into an E*TRADE bank account. Kwon now contends that the arbitration panel lacked jurisdiction over the case, and that the trial court made errors of law in granting the petition to confirm the arbitration award. We affirm.

Michael Stella and Pamela Stella appeal from the order denying their special motion to strike under Code of Civil Procedure section 425.16 (section 425.16) directed to the three causes of action (for breach of contract, express indemnity and declaratory relief) asserted in the complaint against them filed by Asset Management Consultants, Inc. (AMC) and seven affiliated limited liability companies that served as the general partners of limited partnerships in which the Stellas purchased investment interests (collectively AMC parties). The trial court ruled none of the AMC parties’ claims, based on allegations the Stellas had breached representations and warranties made in connection with their investments, arose from protected speech or petitioning activity within the meaning of section 425.16. We affirm.

A jury convicted defendant Joseph Walker of unlawful possession of a firearm and found gang enhancement allegations under Penal Code section 186.22, subdivision (b)(1) to be true. The trial court struck the sentence for the gang enhancement but did not strike the enhancement. On appeal, Walker challenges the gang enhancement as unsupported by sufficient evidence. He argues the court erred by admitting improper hearsay in violation of the Sixth Amendment’s confrontation clause and admitting prejudicial gang-related evidence. Based on the California Supreme Court’s recent ruling in United States v. Sanchez (2016) 63 Cal.4th 665, much of the expert testimony derived from the expert’s review of police reports or communications with other officers was improper hearsay. Because the remaining admissible evidence was inadequate to prove the scienter element of the gang enhancement beyond a reasonable doubt, we reverse.

Noncitizen defendant Sergio Vaca pleaded no contest to a felony charge of possessing a controlled substance for sale. More than a decade later, he moved to vacate the conviction pursuant to Penal Code section 1016.5, challenging the adequacy of the advisement concerning the immigration consequences of his plea. The trial court denied the motion. We affirm.

Noncitizen defendant Sergio Vaca pleaded no contest to a felony charge of possessing a controlled substance for sale. More than a decade later, he moved to vacate the conviction pursuant to Penal Code section 1016.5, challenging the adequacy of the advisement concerning the immigration consequences of his plea. The trial court denied the motion. We affirm.

After an altercation in which his co-defendant Dylan Lamalie (Lamalie) shot Jesus Solis with a shotgun, appellant Adrian Landers (Landers) took the gun and hid it under a parked car and later in a nearby garbage room. Lamalie and Landers were charged with murder (Pen. Code, § 187, subd. (a)) and Landers was charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The trial court instructed the jury on the defense of momentary possession to the felon in possession charge, but did not give an instruction requested by Landers on the defense of legal necessity. The jury deadlocked on the murder charge, but found Landers guilty of the felon in possession charge. On appeal, Landers argues that the trial court erred in failing to give his requested instruction on the defense of legal necessity. We affirm.

After his motions challenging searches and seizures of evidence were denied, defendant negotiated a plea agreement pursuant to which he pled no contest to one count of resisting arrest by force or violence, with a gang enhancement, and one count of possession of cocaine base for sale. He was sentenced to the midterm of two years on the resisting arrest count, with two years for the enhancement; he was given a concurrent midterm sentence of four years on the drug possession count. Defendant appeals, seeking review of the denial of his motions to suppress evidence, the denial of his motion to traverse and quash a search warrant, and the partial denial of his motion seeking disclosure of police officer personnel records. He also challenges the four-year sentence on the drug possession count. We modify the sentence on the drug possession count, and affirm the judgment as modified.

This appeal and cross-appeal present numerous issues concerning the interpretation and application of Evidence Code section 1158, the statute requiring medical providers to make available to a patient’s attorney, for inspection and copying, the patient’s medical records before the institution of judicial proceedings. Although these issues retain some continuing relevance, their significance undoubtedly has been greatly reduced by the increasing maintenance of medical records electronically and an amendment to section 1158 adding the requirement that upon request the information be provided in electronic form. Nonetheless, this litigation arises out of a request for the delivery of paper copies and questions, among other things, the circumstances under which copying costs charged by a copy service chosen by the medical provider must comply with cost limitations imposed by section 1158.

Who is responsible for a house fire that occurs when a dog is left alone with combustible dog food on a stove top: the dog’s owners or the stove top manufacturer? Sandra Richardson and Sandra Ruiz appeal following the trial court’s grant of summary judgment in favor of Whirlpool Corporation (Whirlpool), the manufacturer of a stove top that was the source of a fire in their home. Because this case presents questions of fact that cannot be decided as a matter of law, we reverse.