CA Unpub Decisions

In 1997, defendants and cross-complainants Robert D. Weinbach and Cyclone Productions Inc. (Cyclone) entered into a settlement agreement (1997 settlement agreement) with plaintiffs and cross-defendants M.U.S.E. Picture Productions Holding Corporation II, Muse Productions, Inc., and Chris Hanley, the President of Muse Productions, Inc., (collectively, Muse) to develop a film based on the novel “The Killer Inside Me” (novel) and a screenplay written by Weinbach. In early 2009, after failing to produce a film with Weinbach and Cyclone, Muse sold its rights to the novel to cross-defendant Windwings Productions, LLC (Windwings), who in turn sold its rights to the novel to cross-defendant Kim Productions LLC (Kim); Kim released a film based on the novel in 2010 that did not use any portion of Weinbach’s screenplay.

An information charged David Xavier Gonzalez with assault with a deadly weapon, namely a metal pipe (count 1); assault by means of force likely to produce great bodily injury (count 2); and active participation in a criminal street gang (count 3). Sentencing enhancements were alleged for committing the assault for the benefit of a criminal street gang, personally inflicting great bodily injury, having a prior strike conviction under the “Three Strikes” law and a prior serious felony conviction, and serving a prior prison term.

Robert L. (father) seeks extraordinary writ review of the juvenile court’s orders issued in January 2017 at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) terminating his reunification services and setting a section 366.26 hearing as to his four minor daughters, Jade, Sara, C.L. and D.L. Father contends the juvenile court erred in not returning the children to him under a plan of family maintenance. We deny the petition.

Following a trial by jury, defendant Fernando Castillo was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and assault with a flammable substance (§ 244) (count 2). He was sentenced to the lower term of five years for attempted murder and the lower term of two years for assault, stayed pursuant to section 654, for a total determinate term of five years.
On appeal, defendant argues the trial court abused its discretion when it failed to (1) declare a doubt as to his mental competency and hold a second competency hearing pursuant to section 1368, (2) grant his motion for acquittal on the assault count pursuant to section 1118.1 and (3) grant him probation. He also argues the court erred in calculating his presentence custody credits.

Defendant Jamal Epps was convicted by jury of the first degree murder of Terry Ellis (count 1) (Pen. Code, § 187, subd. (a)), participation in a criminal street gang (count 2) (§ 186.22, subd. (a)) and the attempted murder of Trenttin Francies (count 3) (§§ 664/187, subd. (a)). The jury found true that the attempted murder was willful, deliberate and premeditated (§ 189), and that the murder and attempted murder were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the jury found true the attached enhancements for use of a firearm (§ 12022.53, subds. (d)–(e)(1) (counts 1 & 3) and § 12022.5, subd. (a) (count 3)).

During a five-year relationship with his girlfriend, defendant and appellant, Brandon Tolivert, engaged in ongoing violence and threats against her. A jury convicted defendant of 11 criminal offenses: counts 1 and 2, assault with a deadly weapon (§ 245, subd. (a)(1)); count 3, making criminal threats (§ 422); count 4, first degree burglary (§§ 459/460); count 5, stalking (§ 646.9, subd. (b)); counts 6 through 10, making criminal threats (§ 422); and count 13, violating a court order (§ 273.6, subd. (a).) The trial court sentenced defendant to an aggregate term of nine years eight months in state prison.

Appellant Edwin R., a juvenile, appeals from a probation order entered after he admitted to committing an act of vandalism. Two of the probation requirements imposed on Edwin are that he consent to law enforcement searches of any electronic devices in his possession and that he provide his passwords to internet and social media websites to his probation officer. Edwin contends that these search conditions are invalid and constitutionally overbroad.
We conclude that the conditions Edwin challenges are valid under People v. Lent (1975) 15 Cal.3d 481 (Lent), but the condition requiring Edwin to provide passwords to any and all internet sites he accesses is unconstitutionally overbroad. We therefore modify that search condition and affirm the probation order as modified.

M.R. (Mother), mother of 17-month-old S.H., and S.H.’s father, L.H. (Father), separately petition for extraordinary writ review of the juvenile court’s orders terminating their reunification services and scheduling a permanency planning hearing for S.H. under Welfare and Institutions Code, section 366.26 (366.26 hearing). Both parents request a temporary stay of the 366.26 hearing, scheduled for May 10, 2017, pending a ruling on their petitions. Mother contends the court erred in scheduling a 366.26 hearing because there was a substantial probability that S.H. could be returned to her care within the next six months. Father contends the court erred in declining to award him additional reunification services. Both parents contend they did not receive reasonable services. We reject the parents’ challenges, and therefore deny their petitions and stay requests.

In August 2014, defendant pled no contest to petty theft with a prior felony
conviction. (Pen. Code,1
§§ 484, subd. (a), 666.) Pursuant to the plea agreement,
defendant was later sentenced to a “split” sentence of 16 months, with three months to be
served in county jail and the remaining 13 months to be served under mandatory
supervision with credit for time served of 13 days.
2 Defendant was ordered to make
restitution to the victim, Tesoro Corporation, in the amount of $1,365.57.
After Proposition 47, the Safe Neighborhoods and School Act (Act), codified in
section 1170.18, was enacted, reducing penalties for a number of offenses, defendant filed a petition for re-sentencing.
3
In her petition defendant asserted she was entitled to
have her petty theft with a prior felony conviction reduced to a misdemeanor because had
the Act been in effect at the time she committed her offense, she would have been guilty
of a misdemeanor.

In November 2011, the Alameda County Social Services Agency (Agency) filed a
juvenile dependency petition with respect to then 16-year-old Joseph C. pursuant to
Welfare and Institutions Code section 300, subdivisions (b) and (g), after discovering the
boy in the “ ‘unlivable’ ” home of an adult sister who had been incarcerated for several
months on prostitution and human trafficking charges.
1
The minor, an active marijuana
user, reported that the house was used for prostitution and other illegal activities. In
addition, Joseph’s five-month-old niece had been found dead at the site in a suspected

C.L. has been a dependent of the juvenile court intermittently since 2004, when the Monterey County Department of Social and Employment Services (the Department) took her and her six siblings into protective custody at the age of six. At 18 she was admitted to the Nonminor Dependent (NMD) program under the California Fostering Connections to Success Act (Assem. Bill No. 12 (2009-2010 Reg. Sess.); Assem. Bill No. 212 (2011-2012 Reg. Sess.), commonly known as AB 12. The court terminated NMD jurisdiction over her in January 2016, but she asked the court thereafter to return her to juvenile court jurisdiction. From the August 2016 order denying that petition, C.L. brought this appeal, asserting abuse of discretion based on the court’s failure to compel the Department to file a report before the hearing.

Attorney Timothy A. DeWitt (appellant) sued various defendants in propria
persona for, inter alia, violating the California Anti-Spam Act (Bus. & Prof. Code,
§ 17529.5). After appellant filed an amendment to his complaint to substitute in
IAC/InterActiveCorp (respondent) as a Doe defendant, pursuant to the Code of Civil
Procedure section 474,1
the trial court granted respondent’s motion to quash service of
summons. Appellant now appeals, still in propria persona, contending the court
improperly found that he was not genuinely ignorant of respondent’s true identity at the
time he filed the original complaint or, in the alternative, that he unreasonably delayed in
filing and serving the amendment to the complaint once he learned respondent’s true
identity. Appellant also contends a one-year statute of limitations should not apply to
claims for liquidated damages brought under Business and Professions Code section
17529.5. We shall affirm the order granting the motion t

The court appointed S.M. as the limited conservator of her adult daughter, L.M., who is a 34-year-old “high functioning autistic with cerebral palsy like severe motor impairment.” The court also granted B.M. (L.M.’s father and S.M.’s former husband) unsupervised visitation with L.M. On appeal S.M. argues (1) the court lacked jurisdiction to order visitation for B.M. because L.M. herself retained the power over her own social contacts, and (2) by ordering such visitation, the court violated L.M.’s constitutional rights. We dismiss the appeal because S.M. lacks standing to bring it.

Plaintiff Ramon Ortiz sued defendants WMC-A, Inc., and Integrated Healthcare Holdings, Inc., a hospital and its owner (collectively the Hospital), for professional negligence and violation of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.; the Elder Abuse Act). A jury returned a special verdict finding the Hospital was not “negligent in [its] care and treatment of [Ortiz],” but also that the Hospital’s employees “failed to use that degree of care that a reasonable person in the same situation would have used in the provision of medical and/or custodial care for physical and mental health” needs. (Italics added.) The court reconciled these findings by suggesting the jury could have intended the latter finding to apply only to “custodial care,” which is not the same as “care and treatment” described in the first finding.