CA Unpub Decisions

Gabriel Green appeals from a judgment entered after the trial court granted the motion for summary judgment filed by defendants Daniel Suzuki, M.D., and San Marino Psychiatric Associates (SMPA), in which Dr. Suzuki is a partner. Green brought claims for professional negligence, abuse and neglect of a dependent adult, and intentional infliction of emotional distress alleging Dr. Suzuki and SMPA failed to provide adequate care to Green while he was involuntarily committed to the Aurora Las Encinas Hospital (LEH) under Welfare and Institutions Code section 5150. The trial court concluded Dr. Suzuki and SMPA carried their burden to show Dr. Suzuki’s treatment of Green was within the standard of care and did not cause Green’s injuries. Green submitted no evidence in opposition, and the court granted the summary judgment motion, finding Green failed to meet his burden to raise a triable issue of fact.

This is an appeal from a denial of relief on a petition for resentencing under Penal Code section 1170.95. Appellant’s counsel raises no issues and requests that we conduct a Wende review of the resentencing proceedings. (People v. Wende (1979) 25 Cal.3d 436.) The courts, recognizing that Wende review is constitutionally required only from a defendant’s first appeal of right from a criminal conviction, have held they are not required to conduct Wende review on appeal from a denial of a petition under section 1170.95 because it is from a postconviction order denying sentencing relief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278; People v. Flores (2020) 54 Cal.App.5th 266, 273; see People v. Delgadillo, review granted Feb. 17, 2021, S266305 [issue pending in Supreme Court].) Hence this appeal could be dismissed. (Cole, at p. 1028; People v. Freeman (2021) 61 Cal.App.5th 126, 134.)

Appellant Edward Vincent Ray, Jr. (appellant) appeals the trial court’s denial of his motion for modification of restitution. Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We conclude appellant is not entitled to Wende review of the postconviction order. Appellant also filed a supplemental brief. We reject the contentions in the supplemental brief and affirm.

D’Andre Chandler Young appeals from a sentence of 16 months in prison after he pled no contest to one count of attempted robbery. He contends the trial court erred in ruling he was presumptively ineligible for probation. We agree and will remand for a new sentencing hearing.

Following a bench trial, the court found defendant guilty of escape while on work program and found the enhancement allegations true. The court imposed a total sentence of four years. As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we note counsel for defendant has filed a Wende brief raising no arguable issues, counsel apprised defendant of his right to file a supplemental brief, and defendant did not file such a brief. Upon review of the record for potential error, we find no arguable issues warranting reversal and affirm the judgment.

Brandon Darville Cochran filed a habeas corpus petition alleging ineffective assistance of counsel at his trial where a jury convicted him of voluntary manslaughter and found he personally used a firearm in the fatal shooting of the victim. Cochran also filed a direct appeal of the judgment raising related arguments. Because the appeal and habeas petition involve related issues, we ordered that we would consider them together. For the reasons set forth in the opinion in the related direct appeal (People v. Cochran, A160672), the habeas petition is denied.

The COVID-19 pandemic has required the modification of court operations throughout the United States and within California and has challenged the previously common understanding of what constitutes a “personal” appearance. Defendant David Harlow Churchill appeals the revocation of his probation and the execution of a previously suspended four year prison sentence on the grounds that the trial court violated his due process rights when it permitted only his remote appearance via videoconference at his contested probation violation hearing and subsequent sentencing hearing. Churchill further asserts that because there was no opportunity for him to confidentially consult with his attorney at these proceedings, he was denied his right to counsel. Churchill argues that these constitutional violations, plus the lack of substantial evidence presented, warrant reversal of the probation violation findings and vacation of the sentence.

Defendant Kim E. Tolbert appeals from the trial court’s denial of her motion to withdraw her March 13, 2020 plea of no contest to one felony count of making a criminal threat. She argues that the trial court abused its discretion because she proved by clear and convincing evidence that she entered her plea only because of the severe coercion and duress caused by the outbreak of the COVID-19 virus. As she describes it, she otherwise would have been left stranded in Alameda County’s Santa Rita Jail with immune-compromising physical conditions that threatened her life and an uncertain trial date. She further argues this duress was exacerbated by her attorney’s failure to argue a bail motion that could have won her release from jail, which she contends constituted ineffective assistance of counsel.

Defendant Wendell Coleman, Jr., appeals from a judgment following a contested probation revocation hearing and imposition of a four-year prison sentence for corporal injury to a spouse, false imprisonment by violence, and two /counts of disobeying a domestic relations court order. On appeal, defendant contends the trial court’s failure to (a) conduct a new competency hearing prior to the revocation hearing and (b) appoint a public defender at his sentencing hearing violated his constitutional rights. We affirm.

Jared Herdt was convicted of two bank robberies and admitted having five prior strike convictions, all for bank robberies. For these crimes, Herdt was sentenced to an aggregate term of 50 years to life in prison. On appeal, Herdt contends that the judgment must be reversed because the trial court misled him to believe that he would receive a lenient sentence if he entered a “slow plea” to the robbery charges and admitted his prior convictions. We affirm the judgment.

Plaintiffs Poodles, Inc. (Poodles), Patrick & Friends, Inc. (PFI) and Jill Williamson filed a complaint against defendants Roger C. Kuhn, James W. McIntyre, Joseph Lynch, Michael Ina, Eugene F. Lynch, Sherman Wong, Lawrence Bennett, All Animals Properties, LP (AAP), 1333 Ninth Avenue, LLC, and All Animals Emergency Hospital, Inc. (AAEH) (jointly, defendants) asserting defendants engaged in fraudulent conduct and breached various agreements associated with the purchase of defendants’ animal hospital and specialty practice. The trial was bifurcated, and the initial jury trial resulted in a verdict in plaintiffs’ favor on almost all counts. Following the subsequent bench trial, the court vacated a portion of the jury verdict on the basis that the statute of frauds defense applied to bar certain oral referral agreement claims. The court also concluded in relevant part that there was no alter ego liability between defendants.

Brandon Darville Cochran appeals after a jury convicted him of voluntary manslaughter and found he personally used a firearm in the fatal shooting of Reginald J. Cochran has also filed a habeas corpus petition alleging ineffective assistance of counsel at his trial. Because the appeal and habeas petition involve related issues, we ordered that we would consider them together. Cochran argues (1) the trial court erred by excluding some evidence of Reginald J.’s violent character and his counsel provided ineffective assistance by not presenting the evidence of Reginald J.’s violent character the trial court did allow; (2) the prosecutor committed misconduct by arguing in closing that Cochran had not submitted any evidence beyond his own testimony that Reginald J. had a violent character and Cochran’s counsel was ineffective for failing to object to this argument; (3) the trial court abused its discretion by imposing the upper term for the gun use enhancement;

The owners and operators of six San Francisco boutique hotels filed suit against the City and County of San Francisco and its Office of the Treasurer and Tax Collector (collectively, the City) seeking refunds of about $1.7 million in penalties the City had assessed for failure to timely file returns and pay certain hotel taxes. The hotel owners and operators contended they were entitled to refunds under section 6.17-4 of the San Francisco Business and Tax Regulations Code because, exercising ordinary care, they had hired and then relied on an employee to file the returns and make the payments, only to learn after the taxes were past due that the employee was dishonest and had never filed the returns or paid the taxes. After an eight-day bench trial, judgment was entered in favor of the hotel owners and operators.
The City raises two main arguments in this appeal.

A jury convicted appellant Francisco Nunez of oral copulation on a child under 11 years old (Pen. Code, § 288.7, subd. (b)), lewd and lascivious acts on a child under 14 years old (Pen. Code, § 288, subd. (a), and sexual acts with a child under 11 years old (Pen. Code, § 288.7, subd. (a)). On appeal, Nunez argues the court erred in admitting as evidence his videotaped confession to two sheriff’s office detectives, which he argues was involuntary and the product of coercive police interrogation. We disagree and affirm.