CA Unpub Decisions

Defendant Marquise Elliott Harrison was tried for murder during the early stages of the coronavirus disease 2019 (COVID-19) pandemic. After the first full day of evidence, during which the People had presented testimony from five of its witness, the presiding judge of the Superior Court of San Bernardino County and the Chief Justice of California issued a series of emergency orders that closed the courthouse for jury trials. When the trial was resumed over 60 days later, the trial judge found there had been good cause for the continuances and denied defendant’s motion for a mistrial. After the jury convicted defendant of second degree murder and found true certain firearm enhancement allegations, the trial court denied defendant’s motion for a new trial based on the same grounds as his mistrial motion and sentenced him to an indeterminate state prison term of 40 years to life.

When William and Rachel Kinney dissolved their marriage, they agreed that William would owe no monthly support for the care of their two young children. Less than seven months later, the San Bernardino County Child Support Services (the department) filed a motion seeking to modify William’s child support obligation. Over William’s objection, the family court granted the motion and ordered that he pay $2,226 a month in child support.
William timely appealed, but he presents no reasoned legal argument in his opening brief why the family court erred. For instance, he does not inform this court of the appropriate standard of review or explain why, when applying the facts to that standard, the family court committed prejudicial error that must be reversed. William responded to the department’s (represented by the Attorney General) assertion that his brief is completely deficient.

The People charged codefendants Juan Luis Nava Garcia and Rogelio Castillo with shooting at two houses of a rival gang in Watsonville, California. A jury convicted them of crimes and found true special allegations related to only a West 5th Street incident.
Nava’s Convictions and Sentence
A jury convicted Nava of the attempted willful, deliberate and premeditated murder of D.C. (Pen. Code, §§ 664, 187, subd. (a); count 1), shooting at an inhabited dwelling on West 5th Street (§ 246; count 2), assault with a firearm on D.C. (§ 245, subd. (a)(2); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4), active participation in a criminal street gang (§ 186.22, subd. (a); count 7), misdemeanor battery on a peace officer (§ 243, subd. (b); count 8), and misdemeanor resisting a peace officer
(§ 148, subd. (a); count 9).

A jury found defendant guilty of burglarizing two storage units -- the Olive Grove storage unit and the Fig Lane storage unit. The jury further found defendant guilty of misdemeanor vandalism for damaging the door to the Fig Lane storage unit, but found him not guilty of vandalizing the door to the Olive Grove storage unit. Defendant also admitted he had previously been convicted of a strike offense. After granting defendant’s motion to dismiss his prior strike as to one of his felony convictions, the trial court sentenced defendant to six years eight months in prison and imposed various fines and fees.
Defendant appeals arguing there was insufficient evidence presented at trial to support his conviction for burglary of the Olive Grove storage unit. He also argues the court committed two incidents of instructional error and erroneously denied his motion for a mistrial.

Plaintiff Virendra Prasad brought this medical negligence action against defendant Mercy Medical Center Redding/Dignity Health after he suffered traumatic head injuries from a fall. Plaintiff claims he was harmed as a result of the negligent care rendered by defendant’s employees. The trial court granted summary judgment in favor of defendant, finding that plaintiff had failed to establish a triable issue of fact on his medical negligence claim. This timely appeal followed. We conclude the motion for summary judgment was properly granted and affirm the resulting judgment.

After the trial court denied his petition for mental health diversion, defendant Joseph Hoyt pled guilty to stealing a car and fleeing police while driving recklessly. On appeal, he contends counsel provided ineffective assistance by failing to timely submit a recent mental health diagnosis and an adequate treatment plan in support of the diversion petition and by allowing him to accept the plea before the trial court issued a final ruling on the petition. Finding no merit in these contentions, we affirm.

Defendant Nivano Physicians and plaintiffs Medical Benefits Administration, Inc. (MBA) and Keely L. Smith are before this court a second time. In a previous opinion, we concluded that a software licensing agreement and settlement agreement purporting to enforce that agreement were illegal and unenforceable. (Medical Benefits Administration, Inc. v. Nivano Physicians, Inc. (Dec. 23, 2021, C091841) [nonpub. opn.] (Slip Opn.).) In this appeal, defendant Nivano Physicians contends the trial court’s order awarding plaintiffs attorney fees and costs must be vacated. We agree.

This appeal arises out of a contest between two rival factions for control over a Korean American institution called the Oriental Mission Church (OMC), a California nonprofit religious corporation. Appellant Jang Geun Chung is an “Active Elder” at OMC and the leader of one faction, and OMC’s Senior Pastor, respondent Chi Hoon Kim, is the leader of the other faction. Prior to the initiation of the trial court proceedings, these individuals were the only two members of OMC’s “Session,” or board of directors. Chung and the Senior Pastor do not agree on whom to nominate as another Active Elder on the Session. Had Chung and the Senior Pastor concurred on the selection of one or more nominees, then any candidate receiving a vote of two-thirds or more of OMC’s congregation would have been elected to the Active Elder position and ultimately would have joined the Session.

In 1996, a jury convicted defendant and appellant Maurice Johnson of sale or receipt of an access card to defraud (i.e., using a stolen credit card) (count one) and possession of a forged driver’s license (count two). The trial court found Johnson sustained 10 prior strike convictions. It sentenced him to 25 years to life on count one and stayed sentencing on count two.
In 2016, Johnson petitioned for resentencing under Proposition 47. The trial court concluded he was eligible for resentencing on count one but ineligible on count two. The court declined to dismiss any prior strikes when resentencing on count two and imposed the previously stayed sentence of 25 years to life on that count.
On appeal, Johnson argues the trial court abused its discretion by declining to dismiss his prior strikes and by lifting the stay on count two. He also argues the court erred by not permitting him to be represented by his retained counsel of choice. We agree with Johnson’s latter contention.

This case came before us again due to a docketing issue.
We filed our opinion on November 4, 2021. Appellant Jose Hipolito Rubio petitioned for review. This court then discovered Rubio’s reply brief had not been docketed and alerted Rubio’s counsel. The California Supreme Court directed us to vacate our decision and to reconsider the matter in light of Rubio’s reply brief. We have done so. We have considered the reply brief and Rubio’s supplemental letter brief. We are refiling the original opinion with minor changes.
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Appellant Jose Hipolito Rubio was convicted of two first degree murders with special circumstances. The trial court sentenced appellant to two consecutive terms of life without the possibility of parole and further imposed two 25-years-to-life enhancements for the use of a firearm causing death.

Applying the natural and probable consequences doctrine, a jury convicted Robert Antonio Ramirez of two counts of attempted willful, deliberate and premeditated murder, two counts of assault with a firearm and one count of shooting at an inhabited dwelling and found true criminal street gang and firearm-use enhancement allegations. We affirmed those convictions on two prior occasions (in 2017 and 2019) based on the law as it existed at the time of our decisions.
Directed by the Supreme Court earlier this year to reconsider Ramirez’s case in light of recent ameliorative legislation, we now reverse the convictions for attempted murder, as well as the criminal street gang enhancements imposed on all counts.

Veena Roesler, individually and doing business as Palmdale Estates Inc. (collectively, plaintiffs), filed a complaint against defendants Nella Terra Cellars, Inc. (Nella Terra) and Gerald and Paulette Beemiller arising out of their business relationship. They alleged defendants reneged on their promise to execute a long-term contract leasing plaintiffs their vineyard to operate an event venue. The trial court ultimately determined plaintiffs invested in that venture and awarded them two years of anticipated lost profits and depreciable assets as a matter of equity. Defendants appeal, arguing the statement of decision omits the specific equitable basis for awarding damages and fails to explain whether the award is limited to plaintiffs’ anticipated lost profits for events that comply with Department of Alcoholic Beverage Control (ABC) regulations. We affirm in part, reverse in part, and remand for the trial court to issue a new statement of decision and enter a new judgment.

A jury convicted Neil Fiu of, among other things, second degree murder (Pen. Code , § 187) of Salvador Espinoza. After the enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.), Fiu filed a petition for relief under section 1170.95 alleging that his conviction was based upon the felony murder rule or the natural and probable consequences doctrine. Fiu contends that the trial court erred in denying his section 1170.95 petition. Finding no error, we affirm.

Appellant Ahmad Khaliah Mabrok appeals a postjudgment order denying his motion for mental health diversion under Penal Code section 1001.36. He contends reversal is required because he was not present at the motion hearing. However, the record shows appellant waived his right to attend the hearing through counsel, and, even if that were not the case, any error in conducting the hearing in his absence was harmless. We therefore affirm the trial court’s ruling.