CA Unpub Decisions

Defendant Erik Cory Patino was convicted by jury trial of murder and possession of a firearm by a felon. On appeal, he contends (1) the trial court erred in permitting the prosecutor’s gang expert to directly opine that Patino acted for the benefit of a criminal street gang and did not act in self-defense; (2) the court erred in failing to instruct the jury that the reasonable person standard for self-defense and heat of passion includes consideration of a defendant’s age, intelligence, and experience; (3) the court erred in failing to instruct the jury on general and specific intent; and (4) these errors cumulatively violated Patino’s right to due process. We affirm.

During a fight between Fred Romero and plaintiff and appellant, Nicholas Montgomery, at The Whiskey Barrel Hesperia, LLC (Whiskey Barrel), Romero gouged out Montgomery’s left eye. Montgomery sued the owner of Whiskey Barrel for negligence and damages. The jury entered a verdict finding Whiskey Barrel 10 percent liable for negligence because Whiskey Barrel’s security guards did not eject Romero from the premises after an initial altercation, which occurred shortly before the fight leading to Montgomery losing his eye

In 2019, Buggs filed a petition for resentencing under section 1170.95. The court appointed counsel for Buggs and received briefing from the prosecution and the defense. After reviewing the briefs, the court found Buggs was the actual killer who personally used a knife to kill the victim. The court denied the petition for resentencing by written order.
Buggs filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Buggs the opportunity to file his own brief on appeal, but he has not responded.

D.H. (Mother) appeals jurisdictional and dispositional orders issued on September 15, 2020, in the Welfare and Institutions Code section 300 dependency cases of her children, L.L. and M.W. In her opening brief, Mother does not present any substantive argument challenging the jurisdictional and dispositional order in L.L.’s case. She only contends that the order in M.W.’s case must be reversed and remanded because the San Diego County Health and Human Services Agency (Agency) did not comply with its inquiry obligations under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), as codified in section 224.2.

On July 30, 2019, the San Diego District Attorney filed a felony complaint against defendant Dennis Ayson Devera in connection with an incident occurring at a San Diego Home Depot store. The complaint charged defendant with burglary of a commercial building (Pen. Code, § 459, count 1); conspiracy to commit a burglary or grand theft (§ 182, subd. (a)(1), count 2); and grand theft of personal property (§ 487, subd. (a), count 3). The complaint further alleged defendant had prison priors from 2016 (§§ 667.5, subd. (b) & 668).

Maplebear, Inc. dba Instacart (hereinafter “Instacart”) appeals from a preliminary injunction enjoining and restraining Instacart from “failing to comply with California employment law with regard to its Full-Service Shopper employees within the City of San Diego.” The superior court issued the injunction after finding the People of the State of California, acting by and through the San Diego City Attorney, (hereinafter “the City”) demonstrated a probability of success on their claim Instacart was improperly classifying Full-Service Shoppers as independent contractors, and not employees, based on the ABC test set forth in Dynamex Operations West, Inc. v. Super. Ct. (2018) 4 Cal.5th 903 (Dynamex).

Plaintiff Kathleen Liss appeals from a judgment entered in favor of defendant the City of San Diego (the City) on her causes of action for dangerous condition of public property and premises liability after she tripped and fell on a public sidewalk where there was an approximate one and one-half inch difference between a portion of the sidewalk with a water meter box lid and the adjacent sidewalk section. The trial court granted the City’s motion for summary judgment on the ground that the City had shown that Liss could not establish one or more elements of her cause of action, i.e., concluding that the defective condition was trivial, that it was not created by the negligence or wrongful conduct of the City’s employee(s), and that the City had neither actual nor constructive notice of the dangerous condition a sufficient time prior to the injury to take measures to protect against the condition.

In an earlier appeal in this action, we reversed an order granting a special motion to strike the complaint under California’s anti SLAPP statute, Code of Civil Procedure section 425.16, brought by defendant Joseph Dagostino. (Wilson v. Landry (Sept. 18, 2018, D072948) [nonpub. opn.] (Wilson).) On remand, pursuant to section 425.16, subdivision (c)(1), plaintiff Grace Wilson filed a motion for attorney fees and costs on the basis that Dagostino’s anti SLAPP motion was frivolous or solely intended to cause unnecessary delay. The trial court denied Wilson’s motion, ruling that she did not meet her burden. Wilson appeals from the order denying her motion.

Eduardo Flores sued Sharp Grossmont Hospital (Sharp) in 2016 seeking to recover for injuries suffered during a 2014 surgery. In a prior appeal, we reversed a judgment dismissing the action based on the statute of limitations. (Flores v. Sharp Grossmont Hospital (Oct. 31, 2018, D071993) [nonpub. opn.] (Flores I).) We determined Flores met his appellate burden to show a reasonable possibility he could amend his complaint on his medical malpractice claim to establish the limitations period was tolled during his claimed incapacity. (Ibid.; see Code Civ. Proc., §352, subd. (a).)

Lee is a truck driver and dock worker who began working at YRC, a large trucking firm, in May 2016. Lee alleges that Hagey, his supervisor, sexually harassed him while working on the docks of the YRC truck terminal. He also complains about offensive, sex-related comments made by coworkers as a result of Hagey’s actions, and alleges that Hagey retaliated against him.

A.L. (Mother), the mother of J. (Child), appeals from findings and an order after a hearing in which the family court established child custody and visitation/parenting time orders (FOAH). The FOAH followed proceedings initiated by D.E. (Father), Child’s father, who filed a request for such orders (RFO). The record on appeal consists only of a clerk’s transcript, and the clerk’s transcript contains only three documents from the family court proceedings: Father’s RFO, minutes from the court hearing on the RFO, and the court’s FOAH.

Minor B.E. admitted to possession of cocaine and the juvenile court placed him on probation. On appeal, the minor contends the juvenile court erred in imposing a maximum term of confinement and that two of the probation conditions are unconstitutional. We conclude the maximum term of confinement must be stricken and the probation conditions should be modified.

S.S. (father) and T.J. (mother), parents of the minor, appeal from the juvenile court’s order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395; statutory section references that follow are found in the Welfare and Institutions Code.) The parents contend the juvenile court failed to apply the correct standard of proof -- beyond a reasonable doubt -- at the selection and implementation hearing given that the minor is an Indian child within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The Sutter County Department of Human Services (Department) argues the parents failed to object and therefore forfeited their claim on appeal.

After the preliminary hearing and the magistrate’s denial of his motion to suppress evidence, defendant Dante Prentice pleaded no contest to one count of possession of a firearm by a felon and admitted one strike prior as well as a gang enhancement allegation. The trial court sentenced defendant to an aggregate term of seven years in state prison. Defendant appeals from the denial of his motion to suppress evidence. The People contend we must dismiss defendant’s appeal because he did not preserve his right to appeal by renewing his motion to suppress in the superior court after the preliminary hearing. We agree and shall dismiss the appeal.