CA Unpub Decisions

Defendant and appellant Carlos Enrique Flores appeals his convictions for second degree robbery, attempted second degree robbery, misdemeanor vandalism, receiving stolen property, and auto burglary. The trial court sentenced Flores to a term of four years eight months in prison. Flores contends (1) the trial court prejudicially erred by giving the standard jury instruction regarding flight after a crime; and (2) he should have been sentenced to a jail term, not a prison term, for the misdemeanor vandalism offense. Flores’s second contention has merit, and we order his sentence modified accordingly. In all other respects, we affirm.

Chad David Foster appeals an order revoking and reinstating probation in a misdemeanor case (case no. 2010001681) after appellant entered into a negotiated plea in case number 2012021654 to felony possession for sale of more than 14.25 grams of heroin (Health & Saf. Code, § 11351; Pen. Code, § 1203.07, subd. (a)(1)) and was sentenced to felony jail (Pen. Code, § 1170, subd. (h)).[1] Appellant argues, and the Attorney General agrees, that the plea agreement requires that probation be terminated in the misdemeanor case (case number 2010001681). We reverse and remand to permit appellant to withdraw his guilty plea if he so desires. (§ 1192.5; People v. Johnson (1974) 10 Cal.3d 868, 873.) In the event appellant elects not to withdraw his guilty plea, the trial court is directed to impose a mandatory $40 court security fee (§ 1465.8, subd. (a)(1) and a $30 criminal conviction assessment. (Gov. Code, § 70373.)

Appellant Ronnie McConnell appeals from a judgment entered after a jury convicted him of two counts of premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a))[1] and found true the allegation that he personally used and intentionally discharged a firearm that caused great bodily injury (§§ 12022.53, subd. (d), & 12022.5, subd. (a)). In a bifurcated proceeding, appellant admitted allegations that he had suffered one prior prison term (§ 667.5, subd. (b)) and a felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), & 1170, subds. (a)-(d)), which was also a serious felony pursuant to Penal Code section 667, subdivision (a).

Robert Haig Royal appeals from the judgment entered after a jury convicted him of second degree robbery. (Pen. Code, §§ 211, 212.5.)[1] Appellant admitted one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior serious or violent felony conviction within the meaning of California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced him to prison for 11 years.
Appellant contends that (1) the evidence is insufficient to establish the "force or fear" element of robbery, (2) the trial court gave an erroneous special instruction on the meaning of the "fear" element, and (3) the trial court erroneously denied his section 1538.5 motion to suppress evidence seized by the police after they had stopped his vehicle. We affirm.

Miguel Angel Vargas appeals from the judgment entered following a jury trial that resulted in his convictions for assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2); count 1),[1] during which offense he personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) and discharged a firearm (§ 12022.53, subd. (c)), and possession of a firearm by a felon (former § 12021, subd. (a)(1); count 3)[2] and court findings that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); counts 1 & 3).[3]

Defendant and appellant Jose Llamas appeals his convictions for first degree burglary, misdemeanor petty theft, and grand theft. The trial court sentenced him to a term of 17 years in prison pursuant to the Three Strikes law. Llamas contends the court abused its discretion by failing to conduct a second competency hearing, and the evidence was insufficient to support the grand theft charge. We reverse Llamas’s conviction for grand theft and remand for further proceedings on that charge. In all other respects, we affirm.

Plaintiff Eric Place sued defendant Clifford Bernstein, M.D., among others, for medical malpractice after developing tachycardia following a procedure known as accelerated opiate neuron-regulation (AONR) to detoxify from his chronic dependency on Oxycontin. Place contended that his electrocardiogram (ECG or EKG)[1] performed before the AONR procedure revealed potential abnormalities that showed a contraindication for the procedure. Dr. Bernstein brought a motion for summary judgment supported by an expert’s declaration stating that he met the applicable standard of care and did not cause Place’s transient cardiomyopathy. The trial court granted the motion after sustaining Dr. Bernstein’s foundational objections to the admission into evidence of the expert declarations Place submitted to oppose the motion. The trial court determined that Place’s expert was not qualified to render an opinion and granted summary judgment.
We conclude the trial court erred in excluding the expert declarations Place submitted based upon the principles recently articulated in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 and in Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173. We further conclude the expert’s declarations create triable issues of fact precluding summary judgment. We therefore reverse the judgment.

Defendants and appellants, Peter Juan Cerda and Kyle Allin Johnson, appeal their convictions for first degree murder (Cerda only), second degree murder (Johnson only), and 23 counts of premeditated attempted murder, with gang and firearm use enhancements (Pen. Code, §§ 187, 664/187, 186.22, 12022.53).[1] Cerda was sentenced to state prison for a term of 816 years to life. Johnson was sentenced to state prison for a term of 410 years to life.
The judgments are affirmed in part, reversed in part, and remanded with directions as to defendant Johnson’s sentencing.

Appellant Kenyon Dakeith Motten appeals from the judgment entered following his convictions by juries on count 1 – second degree robbery (Pen. Code, § 211), count 2 – attempted second degree robbery (Pen. Code, §§ 664, 211), two counts of criminal threats (Pen. Code, § 422; counts 3 & 4), count 5 – dissuading a witness by force or threats (Pen. Code, § 136.1, subd. (c)(1)), and count 6 – misdemeanor vandalism (Pen. Code, § 594)[1] with court findings appellant suffered two prior felony convictions (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 20 years. We affirm the judgment in part and reverse it in part.

Appellant Jose C., a minor, appeals from the juvenile court jurisdictional findings that he carried a concealed firearm and that he carried a loaded firearm in public. Appellant also appeals a disposition order declaring him a ward of the court and placing him on probation. Appellant brings this appeal in compliance with Welfare and Institutions Code section 800. Appellant’s counsel filed the opening brief without raising any specific issue and requests that the court conduct an independent review of the entire record in accordance with People v. Wende (1979) 25 Cal.3d 436. Appellant was apprised by counsel of his right to file a supplemental brief on his own behalf and he did not do so. We have reviewed the entire record and find no arguable issues that would present a meritorious appeal.

After a several-day jury trial, appellant was convicted on 10 drug-related counts, including possession for sale and transportation of heroin, oxycodone, methadone and morphine, possession of methamphetamine, and one count of being under the influence of methamphetamine. He appeals, claiming there was a lack of substantial evidence to support his conviction on three of those 10 counts. We reject that argument and affirm appellant’s convictions.

Yakov Kleytman and Alena Pechonkina were divorced in 2005 and a 2008 family court order governs their custody and visitation rights regarding their daughter. Kleytman, proceeding in propria persona, appeals the denial of his motion to modify the 2008 order because of alleged changed circumstances. Kleytman contends that the court: (1) ignored the changed circumstance of an increased conflict between the parties; (2) ignored the best interest of the child; (3) violated Family Code section 3048[1]; and (4) made its order without evidentiary support. Kleytman also appeals: (1) the award, pursuant to section 271, of $2,500 in attorney’s fees to Pechonkina and (2) the court’s determination that it was not in the best interest of the child for the court to privately interview her. In addition, Kleytman requests that we sanction the Commissioner presiding in his case.
We affirm the order of the family court, with the exception of the award of attorney’s fees, because the record does not indicate that Kleytman received proper notice of a section 271 sanction for all the conduct upon which the award was based. The award of attorney’s fees is reversed, and the matter remanded for consideration of an award based on Kleytman’s conduct for which he received proper notice.
In connection with his appeal, Kleytman submitted a motion seeking expedited review and a change in the visitation schedule. Kleytman’s motion has been denied because the issue of expedited review is now moot and Kleytman’s allegations supporting his request for a change in the visitation schedule must first be heard in family court.

This is an appeal from judgment after defendant Enrique Torres Martinez was convicted of two felony drunk driving offenses, one misdemeanor offense of failing to stop at the scene of an accident, and one misdemeanor offense of driving with a suspended license, with enhancements for certain prior felony violations. The trial court sentenced defendant to a total prison term of six years. Defendant challenges the judgment on the sole ground that the prosecutor violated his right to a fair and impartial jury by using peremptory challenges to strike four minority women from the jury panel, leaving the jury without Hispanic representation. We affirm.

Defendant Keith Hallan King appeals after a jury found him guilty of residential burglary. (Pen. Code, §§ 459, 460, subd. (a).)[1] The trial court found true allegations that he had five prior convictions that qualified as strikes (§ 667, subds. (b)-(i)) and as serious felonies (§ 667, subd. (a)). He was sentenced to an determinate term of 29 years, consecutive to an indeterminate term of 25 years to life.
On appeal, defendant contends: (1) he should have been permitted to change his plea to not guilty by reason of insanity; (2) there was no corpus delicti for two of the three theories of burglary; (3) the victim’s 911 call should not have been admitted; (4) the prosecution should not have been permitted to amend the information during trial; (5) a defense expert’s testimony was improperly limited; (6) the prosecutor committed misconduct; (7) the trial court did not properly answer a jury question; (8) there was cumulative prejudice; and (9) the trial court erred by denying his motion to dismiss the strike allegations.
For reasons that we will explain, we will affirm the judgment.