CA Unpub Decisions

Defendant and appellant Jorge Luis Herrera appeals after he was convicted of one count of resisting an executive officer by force or violence (Pen. Code, § 69), and one count of misdemeanor battery on a peace officer (Pen. Code, § 243, subd. (b)). He contends that the trial court erred in instructing the jury on the intent required to find a violation of resisting a peace officer; he argues that the court should have instructed, sua sponte, that a specific intent was required. Defendant also contends that the sentence on the misdemeanor battery should be stayed pursuant to Penal Code section 654. We order the sentence on the misdemeanor count stayed, but otherwise affirm the judgment.

Defendant Craig Anthony Richey appeals from the order of February 13, 2013, denying his motion under the provisions of Penal Code section 1203.4[1] to set aside his 1993 conviction. We affirm the order.
According to the superior court file in case No. A593464, defendant plead guilty on April 23, 1993, to first degree robbery (§ 211) with personal use of a firearm (§ 12022.5, subd. (a)). Defendant was sentenced to the high term of six years for the robbery with a two-year enhancement for the firearm use allegation. Additional counts of burglary (§ 459) and assault with a deadly weapon (§ 245, subd. (a)) were dismissed.

Petitioner law firm challenges the trial court’s order denying summary judgment or summary adjudication of issues in this legal malpractice action, arguing that real party, its former client, cannot establish causation because it ultimately prevailed in the underlying action. We issued an alternative writ. We now conclude the court correctly denied summary judgment but hold that summary adjudication should have been granted as to the claim for punitive damages.

Jennifer W. appeals the court’s decision to continue dependency court jurisdiction over her daughter, Hannah W.[1] We affirm.

Plaintiff and appellant Dillard McNeley appeals from the judgment entered after the trial court granted summary judgment in this employment action in favor of defendant and respondent Swift Transportation Co. of Arizona, LLC.[1] McNeley makes only one argument on appeal—he contends the trial court erred in granting summary judgment of his wrongful termination cause of action because after his doctor wrote that he needed a 90-day leave of absence due to stress, Swift prepared a personal leave of absence form granting only a 30-day leave, which McNeley did not request or sign. McNeley characterizes the Swift form as “fraudulent” and contrary to the terms of his employment agreement, resulting in his unlawful employment termination when he did not return to work after 30 days. We affirm.

After being granted probation pursuant to Proposition 36, appellant failed to return to court as ordered. A bench warrant was issued and the warrant remained outstanding for almost eight months. Appellant ultimately appeared in court because he was arrested on the warrant. He admitted he was in violation of probation for failing to return to court as ordered. The trial court found appellant had made no progress in the Proposition 36 program and that his absence from court demonstrated he was no longer a viable candidate for the program. Proposition 36 probation was terminated and a state prison sentence was imposed.
Appellant contends the trial court erred by refusing to reinstate Proposition 36 probation. We affirm the judgment because appellant’s lengthy absence from court and his failure to enroll in a drug treatment program supported the trial court’s decision.

Avettis Avetisyan, Garo Ghevondian and Masis Ghevondian (plaintiffs) appeal the February 24, 2012 order sustaining the demurrer of defendant Robert Azinian (defendant) to plaintiffs’ first amended complaint. Finding no error, we affirm the order.

The jury found defendant and appellant Adrian Deon Hunter guilty in counts 1-4 of second degree robbery (Pen. Code, § 211)[1] and in count 6 of street terrorism (§ 186.22, subd. (a)). Defendant was found not guilty of second degree robbery in count 5. With respect to counts 1-4, the jury found true allegations that defendant committed the charged crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and a principal was armed with or used a firearm (§§ 12022, subd. (a)(1), 12022.53, subds. (b) & (e)). The jury also found that a principal was armed with a firearm in count 6. Following a bench trial, the trial court found defendant suffered a prior strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), suffered a prior serious felony conviction (§ 667, subd. (a)), and served a prior prison term (§ 667.5, subd. (b)).
With respect to count 1, the trial court imposed the middle term of 3 years, doubled pursuant to the three strikes law, with a 10-year enhancement for the gang allegation, and an additional year pursuant to section 12022, subdivision (a)(1), for a total of 17 years. The court also imposed and stayed an additional 10 years pursuant to section 12022.53, subdivisions (b) and (e). An identical concurrent sentence was imposed as to count 3.

Andrew Brian Sharkey (appellant) appeals from a final judgment of conviction following a no contest plea. Appellant contends that (1) the trial court erred in denying his request for substitute appointed counsel, and (2) he was denied assistance of counsel when he personally filed and argued a motion to withdraw his no contest plea because his attorney declined to file it on his behalf. We reject appellant’s contentions and affirm.

Appellant Orlando Gene Tso challenges a probation condition precluding his use and possession of peyote and medical marijuana. As we conclude appellant seeks to appeal from a nonappealable order, the appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
On March 8, 2010, the Sonoma County District Attorney filed a complaint against appellant alleging a felony count of unlawfully carrying a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4); now § 21310);[1] and misdemeanor counts of resisting arrest (§ 148, subd. (a)(1)) and public intoxication (§ 647, subd. (f)). On June 17, appellant entered a plea of no contest to the felony count, and the remaining counts were dismissed.
On July 15, 2010, the court suspended imposition of sentence and placed appellant on three years’ supervised probation, subject to various terms and conditions, including completion of a residential drug rehabilitation program, community service, chemical testing, and a condition precluding use and possession of alcoholic beverages and controlled substances without a valid prescription.

Petitioner, Wendy Bowman seeks relief from the failure to file a timely notice of appeal in case No. 11NF0920. The petition is granted.
Following a jury trial, petitioner was found guilty of receiving stolen property. In a bifurcated proceeding, the court found true a prior strike and an on bail enhancement. On July 20, 2012, petitioner was sentenced on case No. 11NF0920, and case No. 10NF3346 [a guilty plea] to 6 years in state prison.
Petitioner was represented at trial in case No. 11NF0920 by public defender Catherine Learned. After the jury returned its verdict, petitioner told Learned that she wanted to appeal the verdict in this case, and believed that Learned would do whatever was needed to “start” her appeal. However, prior to petitioner’s sentencing hearing, her family retained Attorney George Vincent Vargas to represent her. Petitioner believed that Vargas was standing-in for Learned. However, Vargas believed that the scope of his representation was limited to sentencing hearing matters only. After petitioner was sentenced, Vargas never discussed with her about filing an appeal.

A jury convicted defendant Rulin Hernandez Loaeza of two counts of oral copulation by force (Pen. Code, § 288a, subd. (c) (2) (A);[1] counts 1 and 3), two counts of criminal threats (§ 422; counts 2 and 4), and one count of simple assault (§ 240), a lesser included offense of attempted oral copulation by force (§§ 664, subd. (a), 288a, subd. (c) (2) (A); count 5). The jury also found Loaeza committed the offenses in counts 1 and 3 against more than one victim (§ 667.61, subds. (c) and (e) (4)).
The court sentenced Loaeza to a total prison term of 32 years to life, consisting of a determinate two-year term on count 2, plus consecutive indeterminate 15-to-life terms on each of counts 1 and 3, a concurrent term of 16 months on count 4, and a concurrent term of six months on count 5.
Loaeza contends certain pretrial statements were obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and improperly admitted into evidence at trial. Loaeza also contends the sentences imposed on counts 2 and 4 must be stayed under section 654. We agree with his latter contention only, order the sentences on counts 2 and 4 stayed, and affirm the judgment in all other respects.

A modification decision.

After Ramon Rebeles parked on a frontage road, four dogs bolted out of his vehicle. Defendant Patricia Gradek was seriously injured when her bicycle collided with one of the dogs on a nearby bicycle path. The Rebeles’s insurance carrier, plaintiff IDS Property Casualty Insurance Company (plaintiff), filed a declaratory relief action alleging that the incident did not trigger insurance coverage because it did not result from a “use” of the Rebeles’s motor vehicle. (See Ins. Code, § 11580.06,[1] subd.(g).) Defendants claimed that the incident arose out of the unintentional unloading of the dogs, which constitutes a use of the motor vehicle under section 11580.06, subdivision (g).
After a court trial, the superior court found that the dogs “had completed the process of unloading” from the Rebeles vehicle when the incident occurred. The court concluded that Gradek’s injury did not result from a “use” of the motor vehicle, and entered judgment in favor of plaintiff. We affirm.