CA Unpub Decisions

Defendant and appellant Randolph Steven Esquivel was convicted, by plea, of willfully attempting to burn a structure (Pen. Code, § 455). A prison sentence of five years was imposed, but execution was suspended, and he was granted probation. Upon violation of probation, his probation was revoked and the previously imposed sentence executed. There followed a series of events, including California Supreme Court review and multiple amendments to applicable sentencing laws. During this time, defendant completed his term and was released on parole. Although it is now undisputed that two of the five years of his sentence must be stricken, the Attorney General argues that it should be permitted to rescind the plea agreement and return to the status quo ante. Recently codified authority prohibits this result. We modify defendant’s sentence to strike both one-year priors, and affirm.

On July 15, 2011, the medical staff of Cedars-Sinai Medical Center (Cedars) summarily suspended Hooman Melamed, M.D.’s privileges to perform back surgeries in scoliosis and kyphosis cases, after Dr. Melamed’s operation on a 12-year-old scoliosis patient resulted in complications and necessitated a second, corrective surgery. In a year-long peer review hearing that began in September 2012 and concluded in November 2013, Dr.
Melamed challenged the summary suspension of his privileges (and other recommendations of Cedars’s medical staff). The Hearing Committee concluded, among other things, the summary suspension was reasonable and warranted when it was imposed on July 15, 2011 but, at the time of the Hearing Committee’s decision in January 2014, the portion of the initial suspension that remained in effect should be terminated and Dr. Melamed’s privileges reinstated, with prospective review of his clinical management in pediatric and adolescent scoliosis cases.

After Gary M. and Andrea M. divorced, the family court ordered that their son should attend an elementary school in Moraga, near Andrea’s home. Gary appeals from that order, contending that the court violated his rights by failing to take live testimony, relying exclusively on declarations, and denying his request to hold a trial. In addition, he argues that the court’s order was not supported by sufficient evidence. We conclude that his contentions lack merit and therefore affirm.

Appellant J.P. (Father) and S.U. (Mother) are the parents of E.P. (Minor), who has serious medical conditions that require around-the-clock care. Minor has been declared a dependent of the court, and as part of the disposition, the juvenile court ordered Father not to contact Mother. This is Father’s third appeal in this matter. (See In re E.P. (A160714, May 25, 2021) [nonpub. opn.] (E.P. I) and In re E.P. (A162605, Feb. 22, 2022 [nonpub. opn.] (E.P. II).)
Minor requires a mechanical ventilator and constant monitoring by trained caregivers. At recent update hearings, Father has suggested that Mother could help facilitate his court-ordered in-person visits and caregiver training by acting as the monitoring caregiver during visits and by training him on various aspects of Minor’s care. The court, however, has not ordered Mother to provide Father caregiver training and has not required Mother to monitor Minor during Father’s in-person visits.

Appellant Lu Tuan Nguyen and decedent Joseph E. Ribal, who passed away in 2019, were in a relationship for decades. Unfortunately, in the years before he passed, Ribal’s cognitive abilities began to decline. This led to several lawsuits between Nguyen and various representatives of Ribal and his estate concerning Ribal’s assets. At this point, litigation has been ongoing for a decade. There have been several decisions, now final, by different trial court judges denying Nguyen an interest in various assets of Ribal. In what appears to be a last-ditch effort, Nguyen filed a creditor’s claim seeking $526,555 from Ribal’s estate. The trial court sustained a demurrer filed by respondents, the executors of Ribal’s estate (Ribal’s two children), on grounds Nguyen’s claim was barred by collateral estoppel. Nguyen now appeals, arguing the trial court wrongly sustained the demurrer. We affirm the order because Nguyen has failed to identify any error in the court’s ruling.

This is Hanh Thi My Do’s second appeal from a judgment in this case. In the first appeal, she challenged the judgment entered in her favor and against Twin Town Corporation—a judgment awarding her a lower amount of damages than she sought—arguing it must be reversed because the trial court improperly denied her a jury trial. We agreed, reversed the judgment, and remanded the case for a new trial.
Do now appeals from the judgment following the mid-trial dismissal of her case. The trial court dismissed Do’s case when she abandoned it by leaving the courtroom and refusing to return and complete the trial, despite a court order to do so. In her appellate briefing, Do fails to argue, either legally or factually, why the court might have erred in ordering the case dismissed. She has consequently waived any such contention.

After Daniel James Alvarado shoplifted a bottle of rum and some cell phone accessories from a grocery store, he brandished a large knife while fleeing from store security officers. He was charged with two counts of robbery (one as to each security officer) and one count of petty theft. The information alleged Alvarado used a deadly weapon to commit both robberies: specifically, the knife as to count 1 and the bottle of rum as to count 2.
A jury acquitted Alvarado of the robbery charge in count 2, but found him guilty of the lesser included offense of petty theft. The jury also found him guilty of the petty theft charged in count 3. The jury was unable to reach a verdict on the other robbery count (count 1), resulting in a mistrial. A new jury later found Alvarado guilty of count 1 and found true the deadly weapon allegation involving his use of the knife. Alvarado appeals.

Appointed counsel for defendant Michael James Fries asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

Defendant Daniel Gonzales stands convicted, following a jury trial, of receiving a stolen dirt bike. On appeal, defendant contends the trial court erred by (1) admitting evidence of his prior theft convictions, and (2) excluding exculpatory portions of his post Miranda statement. The People disagree as to the first issue. As to the second issue, they agree that the trial court erred by excluding the exculpatory portion of defendant’s post-Miranda statement but contend that the error was harmless.
We ordered the parties to submit supplemental briefing regarding the impact of Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which modified Penal Code section 1170, subdivision (b), to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence.

Appellant Tammy Gessel pleaded guilty to second degree murder for fatally stabbing her boyfriend, and to three counts of attempted murder for stabbing and seriously wounding her father and two young children. She was sentenced to 15 years to life.
On appeal, her appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.

In 2008, a jury convicted petitioner Juan Alonso Curiel with one count of first degree murder (Pen. Code, § 187, subd. (a); count 1), one count of shooting at an occupied motor vehicle (§ 246; count 2), and five counts of premeditated attempted murder (§§ 187, subd. (a), 189, 664; counts 3-7). On count 1, the jury found true the special circumstances that petitioner discharged a firearm from a motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)) and that petitioner was an active participant in a criminal street gang and committed the murder with an intent to kill (§ 190.2, subd. (a)(22)). For the murder offense, the trial court sentenced petitioner to a term of life in prison without the possibility of parole. For the premeditated attempted murder offenses, the court imposed five concurrent terms of 25 years to life. (People v. Curiel (Aug. 11, 2009, F055935) [nonpub. opn.] (Curiel).)

Appellant Francisco Herrera Valadez (appellant) pleaded no contest to robbery in 1992 (Pen. Code, § 211) and was placed on probation. In 1998, the superior court granted appellant’s motion to expunge/dismiss his conviction because he successfully completed probation.
In 2019, appellant, identifying himself for the first time as “Raymundo Rodriguez aka Francisco Herrera Valadez,” filed a motion to vacate his robbery plea pursuant to section 1473.7. Appellant asserted that when he entered his plea in 1992, he was not aware that his conviction for robbery would result in harsh immigration consequences, and his plea should be vacated because of his prejudicial error. The superior court held a hearing and denied the motion to vacate. Appellant immediately filed a motion for the superior court to reconsider its ruling based on alleged factual and legal errors, and new evidence in appellant’s file from the public defender’s office.

In 2006, a jury convicted Michael Edward Walker II (appellant) of 13 offenses, including attempted murder and assault with a deadly weapon, and found true numerous gang, firearm, and great bodily injury enhancements. The trial court sentenced appellant to 50 years to life plus 57 years. In 2016, the trial court granted a portion of appellant’s petition for writ of habeas corpus and stayed several gang and firearm enhancements, reducing the determinate portion of appellant’s sentence to 42 years four months. In 2019, the trial court resentenced appellant pursuant to former Penal Code section 1170, subdivision (d), based on a letter from the Secretary of the California Department of Corrections and Rehabilitation (CDCR). The court followed the CDCR’s recommendation and stayed two great bodily injury enhancements, but imposed sentence for the enhancements previously stayed pursuant to the 2016 habeas petition.

In People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado I), we concluded the trial court did not have discretion under Penal Code sections 1385 and 12022.53, subdivision (h) (§ 12022.53(h)) to substitute a section 12022.53, subdivision (d) (§ 12022.53(d)) enhancement for a different enhancement. (Tirado I, at p. 640.) In People v. Tirado (2022) 12 Cal.5th 688, the Supreme Court reversed our judgment, holding that “the statutory framework permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead.” (Id. at p. 692.) The Supreme Court remanded the matter to this court “to address the People’s unresolved forfeiture argument . . . and for any further proceedings not inconsistent with this opinion.” (Id. at p. 702.)
Following remand, we granted defendant Jose Guadalupe Tirado’s request to file supplemental briefing.