CA Unpub Decisions

In this proceeding, the People requested the trial court remove retained defense counsel, David Weiner (retained counsel), from representing petitioner Todd Winkler (defendant) because the People believed retained counsel had an “appearance of [] conflict.” Retained counsel was representing defendant on charges he had murdered his wife.
A possible witness at the murder trial was Dean Essenmacher. Essenmacher spoke to the victim the evening before she was killed and told him the following: she was planning to fax divorce papers to her lawyer the next day; she was afraid of defendant; and she needed to get a restraining order because one week prior, defendant had told her she would end up like his second wife. Many months prior to this conversation, the victim told Essenmacher she thought defendant killed his second wife.

Defendant Kenneth Bruce Nye repeatedly beat and verbally threatened his wife (the victim) during their marriage of approximately seven years. In this case, a jury found him guilty of making criminal threats and inflicting corporal injury on the victim having previously been convicted of corporal injury on her within seven years.
The evidence supporting the current crimes was as follows: On October 21, 2011, defendant (who was living apart from the victim) came over to her house to return some bike tires, but the victim told him to leave. Instead of leaving, defendant went inside a garage on the property. The victim told him to get off the property. Defendant hit the victim on her head with something that felt like a metal pipe, causing her nose to bleed, and then told her, “ ‘I’m going to kill you, bitch.’ ” The victim called 911, and police found defendant hiding in his car. Defendant denied hitting the victim and said he was being sarcastic when he told her he was going to kill her. Approximately four years before these crimes, defendant pled to inflicting corporal injury on the victim.
At trial, defendant’s sister testified that the victim had falsely accused the sister of “attacking [the victim], hitting her, [and] vandalizing her home.” Defendant’s sister acknowledged that charges were filed against her, but she claimed it was a “false police report.”
On appeal, defendant raises two evidentiary issues and one sentencing issue. Finding merit in only the sentencing issue, we modify the judgment.

On four separate occasions during the summer of 2009, defendant Kyle Douglas Frank opened fire at vehicles on the freeway while driving under the influence of both alcohol and cocaine. He was tried by jury and convicted of eight counts of attempted murder (Pen. Code, §§ 664/187, subd. (a))[1], during which he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and four counts of willful and malicious discharge of a firearm at an occupied vehicle (§ 246). The trial court sentenced defendant to serve an aggregate determinate term of 90 years in state prison and imposed other orders, including an order requiring defendant to pay a main jail booking fee.
On appeal, defendant contends: (1) the trial court prejudicially erred and violated his constitutional rights to due process and to a unanimous jury verdict by dismissing a juror (Juror No. 9) during deliberations for intentionally concealing material information during voir dire; (2) the trial court abused its discretion by ordering a sheriff’s deputy to stand near defendant while he testified based on standing practice rather than a case-specific analysis that balanced the need for heightened security against the danger of prejudice to defendant’s case; and (3) the main jail booking fee must be stricken because there is no substantial evidence of defendant’s ability to pay the fee imposed.

Appellant Marc C., the alleged father of eight-year-old D.R., appeals the juvenile court’s findings and orders with respect to D.R.’s dependency proceedings. Specifically, appellant maintains the juvenile court violated the mandate of rule 5.635 of the California Rules of Court[1] when it denied his request for genetic testing and further contends the court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C., § 1901 et seq.)
We conclude appellant’s oral request for genetic testing at the jurisdiction hearing did not trigger the juvenile court’s obligation to determine parentage when an alleged father submits a “Statement Regarding Parentage” form (JV-505), and in any event, any error was harmless. We also determine appellant has no standing to raise an ICWA notice violation. We therefore affirm the orders.

Defendant Victor Pulido appeals following the February 26, 2013 denial of his petition to recall his sentence under Penal Code section 1170.126.[1] Defendant is currently serving a sentence of 50 years to life plus 10 years.
We appointed counsel to represent defendant on this appeal. On June 10, 2013, counsel filed an “opening brief” in which she stated that she had failed to find any arguable issues. On June 11, 2013, we informed defendant that he had 30 days in which to file a supplemental brief containing any issues he wished this court to consider. On July 3, 2013, we granted defendant an extension of time. On July 22, 2013, defendant filed a supplemental brief in which he argues that the two strike priors that were used to sentence him as a three-strike defendant constituted a breach of contract.

The juvenile court placed Edward W. in a legal guardianship with paternal relatives, and ordered monitored, once-a-month visits for his father, Wesley B. (father). Father appeals that order, contending the juvenile court erred in ordering monitored rather than unmonitored visits. We see no error, and affirm the order.

Plaintiff, William M. Pryor, appeals from a judgment following a trial court’s order sustaining a demurrer without leave to amend. Plaintiff sued defendant, Nelson Shelton & Associates, for contract and implied covenant breach and negligence. On appeal, plaintiff argues he has pled a claim for fiduciary duty breach even though the individual counts are denominated otherwise. Plaintiff alleges defendant was aware one of its agents engaged in fraudulent activity but failed to notify him which caused him harm. Defendant demurred, arguing plaintiff’s claim was barred as the statute of limitations elapsed. Defendant argued plaintiff knew of the agent’s fraudulent activity by 2006 but did not file his lawsuit until 2011, after the four-year statute of limitations. Plaintiff alleges he did not learn defendant knew of its agent’s fraud until 2008. We reverse the order and remand.

In these appeals, attorney Michael Fox challenges four trial court orders from two related but unconsolidated cases: (1) a restraining order against Fox, issued to his former girlfriend, Karen Knopp (Appeal 1); (2) an order terminating Fox’s restraining order against Knopp (Appeal 2); (3) an order denying Fox’s requests for restitution under Family Code section 6342, subdivision (a) (Appeal 3); and (4) an order granting Knopp’s motion for attorney fees (Appeal 4). On our own motion we have consolidated the four appeals for argument and opinion. We affirm the trial court’s orders.

Plaintiffs, Marguerita Ray and Frederick Hagen, appeal from a January 6, 2012 judgment for defendant, St. Francis Medical Center. Plaintiffs complained defendant’s medical care of Ms. Ray from February 25 to March 2, 2009, was medically negligent. On November 1, 2011, the trial court granted defendant’s summary judgment motion. The trial court concluded a registered nurse, Dorothy A. Pollock, who provided a declaration for plaintiffs, was not competent to testify as to causation. We disagree and reverse the judgment.

At some time in California’s distant past, the indigenous Tongva people of the Los Angeles Basin were associated with the San Gabriel Mission and became known as “Gabrielinos.” In 1994, the Gabrielino-Tongva people were recognized by the State of California as “the aboriginal tribe of the Los Angeles Basin . . . .”[1] Currently in California there are several associations of descendants of this historic Native American tribe.
This appeal concerns two different groups of people claiming the right to control one such association, the Gabrielino-Tongva Tribe (the “Tribe”). One of these two factions (appellant) initiated this lawsuit against defendants (respondents); the other tribal entity settled the claims against defendants. Defendants moved for summary judgment based on that settlement. The trial court determined there was no triable issue of material fact concerning the authority of the settling faction to act on behalf of the Tribe and entered judgment for defendants. We determine there remain triable issues of material fact preventing summary disposition of this matter. We therefore reverse the judgment and the order granting respondents’ motion for summary judgment.

Greg Winslow was head coach of the Ventura College "Pirates" men's basketball team. Over a four-year period, he received in excess of $60,000 in donation checks from team sponsors. Instead of submitting these checks to the college in accordance with a policy he helped develop, he deposited them into a checking account he opened for his son's youth basketball team, the similarly named "V-Town Pirates." During the same period, Winslow wrote more than $9,000 in checks to himself, $20,000 in checks made payable to "cash," and an $800 check to his wife. He also wrote checks to pay for repairs to his boat and for a family vacation rental. After Winslow was fired, he turned over $20,620 in cash he claimed to have withdrawn from the account for a renovation of the team's locker room.
Winslow testified that he believed his superior had authorized him to use the "off-campus" account for Pirates donations and team-related expenditures. He admitted knowing, however, that he lacked any authority to write checks for personal expenses. When asked why he never reimbursed the college for the check he wrote for his family's vacation rental, he said it was because he had spent a greater amount of his own money on team-related expenses. When asked the same question with regard to the check he wrote for repairs to his boat, he merely offered that he "forgot" writing the check.

Appellant Jamaine Adell Williams appeals from his conviction and resulting sentence following his no-contest plea to one count of taking and driving a motor vehicle without the consent of the owner. (Veh. Code, § 10851, subd. (a).)
Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel’s declaration states she has notified appellant that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Counsel also advised appellant of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.

E.G. appeals from an order declaring him a ward of the juvenile court and placing him on probation after he pled no contest to allegations he had committed battery causing serious bodily injury and grand theft from the person of another. (Welf. & Inst. Code, § 602; Pen. Code, §§ 243, subd. (d), 487, subd. (c); Cal. Rules of Court, rule 5.778(e).) We reject his challenge to gang-related probation conditions imposed by the court, but agree the case must be remanded so the court can determine whether the commitment offenses should be declared felonies or misdemeanors.

Defendant Jeffrey Lumen Andrade appeals after pleading no contest to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)[1]) and admitting that he personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (b)). He was sentenced to an aggregate prison term of 23 years.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30–day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.[2]