CA Unpub Decisions

This case returns to us on remand from the California Supreme Court in People v. Hernandez (2012) 53 Cal.4th 1095 (Hernandez). This court had found error in the superior court's refusal to permit trial counsel to show his client, defendant Jacob Townley Hernandez (Townley), a sealed declaration by a prosecution witness attesting to his own participation in an attempted murder, along with a sealed transcript of the witness's plea agreement proceeding. We held that the trial court had deprived Townley of his Sixth Amendment right to effective assistance of counsel by denying him access to these materials. That holding was unchallenged by the People, and the high court expressed no opinion on this point. It did, however, reject this court's conclusion that the error was a structural defect subject to automatic reversal under Perry v. Leeke (1989) 488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for that purpose.
Having received post-remand written [and oral] argument from the parties, we now conclude that no prejudice appears on the record before us. We also consider Townley's assertions that (1) he was deprived of his Sixth Amendment right of confrontation during cross-examination of the prosecution witness; (2) the prosecutor engaged in "egregious" misconduct at trial; and (3) the trial judge improperly commented on Flores's credibility. We find no prejudicial error on these grounds, however, and therefore must affirm the judgment.

The juvenile court sustained allegations in a Welfare and Institutions Code section 602 petition that defendant Alexander E. (minor) committed second degree robbery (petition 7). (Pen. Code, §§ 211, 212.5, subd. (c).) The court declared the offense to be a felony and set the maximum term of confinement at five years. Minor then waived his constitutional rights and admitted the probation violations alleged in petition 6, and the assault with a deadly weapon charge (Pen. Code, § 245, subd. (a)(1)) alleged in petition 8. The court ordered minor continued as a ward of the court and committed him to juvenile hall for 180 days with credit for 50 days previously served.

T.L. (Father) appeals from the juvenile court’s jurisdictional order finding his daughter, A.L., comes within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (d), from the dispositional order declaring A.L. to be a dependent child of the juvenile court, and from the custody order granting A.L.’s mother (Mother) sole legal and physical custody of A.L.[1] The juvenile dependency petition alleged that Father sexually abused A.L. on several occasions.

A jury convicted Mark Alan Ring of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and possession of hydrocodone (Health & Saf. Code § 11350, subdiv. (a)). Ring contends his trial attorney rendered constitutionally ineffective assistance by failing to bring a midtrial motion to suppress evidence (Pen. Code, § 1538.5, subd. (h))[1] after a police officer testified she opened his car door, which Ring asserts lacked legal justification. For the reasons expressed below, we affirm.

Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., and Kaiser Foundation Hospitals (collectively, SCPMG) appeal from the trial court’s order denying their motion to compel their former employee, cancer surgeon Dr. Robert Wascher, to arbitrate his claims against them. The trial court concluded SCPMG failed to meet its burden to establish the existence of a valid arbitration contract governing the parties’ dispute. SCPMG argues ordinary contract interpretation principles and public policy favoring arbitration require the conclusion the parties mutually agreed to arbitrate their disputes. Specifically, SCPMG relies on a practice-wide, internal dispute resolution agreement that SCPMG contends supplemented Wascher’s employment contract and constituted a binding arbitration provision. Wascher highlights numerous flaws in the separate agreement that he claims prevented it from taking effect, alternatively he argues that we may affirm the trial court’s ruling because the supposed arbitration supplement is unconscionable. The trial court concluded no arbitration contract was formed, and therefore did not reach Wascher’s procedural and substantive unconscionability claims.

Appellant led police on a high-speed chase during which his passenger fired several shots at a pursuing squad car. He was convicted of four crimes and sentenced to thirteen years in prison. He does not challenge his underlying convictions but contends his sentence is erroneous in three respects. We vacate his sentence and remand for resentencing but otherwise affirm the judgment.

On this appeal after remand, defendant Maurillo Ivan Rosel, Jr., raises a number of sentencing errors. The Attorney General concedes two of the three errors, and as we shall discuss below, we accept the concessions and shall modify the judgment accordingly. As to the third error, defendant’s sentence on one count of street terrorism (Pen. Code, § 186.22, subd. (a)),[1] the Attorney General correctly contends that a California Supreme Court decision requires reversal of that count altogether. We agree and order defendant’s conviction on that count reversed.

Qualified Patients Association, a former medical marijuana dispensary, and its owner and operator, Lance Mowdy, (collectively, Qualified Patients) appeal from the trial court’s order denying them attorney fees as private attorneys general under Code of Civil Procedure section 1021.5. (All further undesignated statutory references are to this code.) Because they were not successful in their underlying declaratory judgment action to prevent the City of Anaheim (the city) from closing their medical marijuana dispensary, the trial court did not abuse its discretion in denying Qualified Patients’ attorney fee request. We therefore affirm the ruling.

Qualified Patients Association, a former medical marijuana dispensary, and its owner and operator, Lance Mowdy, (collectively, Qualified Patients) appeal from the trial court’s order denying them attorney fees as private attorneys general under Code of Civil Procedure section 1021.5. (All further undesignated statutory references are to this code.) Because they were not successful in their underlying declaratory judgment action to prevent the City of Anaheim (the city) from closing their medical marijuana dispensary, the trial court did not abuse its discretion in denying Qualified Patients’ attorney fee request. We therefore affirm the ruling.

After a jury convicted appellant Frank George Tisby of first degree burglary, the trial court sentenced him to the upper term of six years for that offense, plus a 10-year enhancement for committing a violent felony for the benefit of a criminal street gang. Appellant contends the enhancement must be reduced to five years because the prosecution did not allege that a person other than an accomplice was present during the burglary. We agree. Although we reject appellant’s secondary contention that his attorney was ineffective for failing to prevent imposition of the upper term, we will modify the judgment to reflect a sentence of five years for the gang enhancement and to adjust appellant’s presentence credits accordingly. In all other respects, we affirm.

Christina M., in propia persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule)) from the juvenile court’s order bypassing reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(2), (10) and (11),[1] and setting a section 366.26 hearing as to her six-year-old daughter, Amy M.; four-year-old daughter, C.M.; and two-year-old son, Aaron M. (collectively children). Christina contends the juvenile court did not allow her to present facts that would have proven she was capable of caring for her children along with proof of her efforts to do so. We conclude the juvenile court’s order denying reunification services is supported by substantial evidence and we deny the petition.[2]

D.M., mother, appeals from the juvenile court’s orders pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights to K.H. and S.B.[1] Mother argues that the Kern County Department of Human Services (department) failed to make a proper inquiry of her children’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). The department conceded the error by letter. We find the department’s concession to be improvident, reject mother’s contention, and affirm the juvenile court’s orders.

A modification decision.

E.C. challenges findings and orders denying reunification services to her under Welfare and Institutions Code section 361.5, subdivision (b)(10).[1] She contends there is not substantial evidence to support the juvenile court's finding that reunification is not in her child's best interests. We affirm.