CA Unpub Decisions

Defendant Wilson Lor appeals a judgment entered upon a jury verdict finding him guilty of rape in concert (Pen. Code, § 264.1), with the circumstance that the victim was kidnapped in the commission of the offense (§ 667.61, subd. (d)(5)). He contends he is entitled to a transfer hearing on his suitability for disposition under the juvenile law, that he was deprived of effective assistance of counsel, and that the trial court failed to instruct the jury correctly on the section 667.61 circumstance.
We shall reject defendant’s challenges to his counsel’s representation and the instructions, but conditionally reverse the judgment and remand the matter to the juvenile court for a transfer hearing on whether the matter should have proceeded in juvenile court. If the juvenile court determines defendant is amenable to the court’s jurisdiction, his conviction shall be deemed a juvenile adjudication and the juvenile court shall impose an appropriate disposition. If the juvenile

Defendant Omar Antonio LopezLopez pleaded no contest pursuant to a plea agreement to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). The trial court suspended imposition of sentence and placed him on probation with numerous conditions. On appeal, defendant contends that the trial court erred when it ordered that his conviction be reported to the Department of Motor Vehicles (DMV) for imposition of a driving privilege revocation. We affirm the order.

After plaintiff Scott Howard was injured while hang gliding, he brought an action for negligence against Mission Soaring, LLC (Mission Soaring), Patrick Denevan, and Harold Johnson (collectively, defendants) for injuries sustained in a hang gliding crash. Denevan, the owner of Mission Soaring, conducted plaintiff’s initial orientation. Johnson was an instructor at Mission Soaring and instructed plaintiff on the day of the crash. The trial court granted defendants’ motion for summary judgment and entered judgment in their favor. On appeal, plaintiff contends that the trial court erred in granting summary judgment. We agree that triable issues of material fact remain unresolved and that plaintiff successfully rebutted defendants’ assertion of express and primary assumption of risk. Accordingly, we reverse the judgment.

Defendant Frederick Thomas Porte, armed with a knife, chased a neighbor. The neighbor was a trained fighter, younger, and in better shape, and successfully avoided defendant’s attack. Defendant challenges his conviction for assault with a deadly weapon on the ground that there was no evidence of a present ability to harm the neighbor. We conclude that chasing someone with a knife, while at a distance of about 10 feet, constitutes a present ability to cause injury.
Defendant also argues the trial court erred by permitting the prosecution to impeach him with evidence of two prior theft-related offenses. Although these offenses were remote in time to the current offense, the trial court properly weighed defendant’s lengthy time in custody and sanitized the description of the offenses to avoid undue prejudice.
Finally, statutory changes in the discretion given to the trial court to strike prior serious felonies requires that we remand the matter to the trial court so that it ma

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed.
Morris Polich & Purdy; Clark Hill and Richard H. Nakamura, Jr.; Shute, Mihaly & Weinberger, Winter King, Catherine C. Engberg and Edward T. Schexnayder; Ulwelling Siddiqui and Omar A. Siddiqui, for Plaintiffs and Appellants Friends of Coyote Hills and Friends of Harbors, Beaches and Parks.
Morris Polich & Purdy and Richard H. Nakamura, Jr.; Center for Biological Diversity and John T. Buse; Ulwelling Siddiqui and Omar A. Siddiqui, for Plaintiffs and Appellants Center for Biological Diversity.
Rutan & Tucker, Jeffrey M. Oderman and Peter J. Howell for Defendants and Respondents City of Fullerton and City Council of the City of Fullerton.
Pillsbury Winthrop Shaw Pittman, Kevin M. Fong, Ronald E. Van Buskirk and Stacey C. Wright for Real Party in Interest and Respondent.

Appellant R.W. (mother) is the biological mother of A.W. Mother’s parental rights were terminated at a Welfare and Institutions Code section 366.26 hearing. Mother contends the juvenile court erred in terminating her parental rights. We affirm.

Appellant B.E. was committed to the Division of Juvenile Justice (DJJ) after he admitted allegations in a petition charging him with robbery (Pen. Code, § 211). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

Appellant B.B., Sr. (father) appeals from the juvenile court’s orders terminating his parental rights over now six-year-old Aubrie B., four-year-old Emma B. and two-year-old B.B. (Welf. & Inst. Code, § 366.26.) He contends the termination order was error because there was insufficient evidence the children were adoptable. We affirm.

On May 7, 2018, the juvenile court exercised its dependency jurisdiction over now nine-month-old J.J. at a dispositional hearing (Welf. & Inst. Code, § 358) and ordered C.J. (mother) to participate in reunification services. Mother appealed. After reviewing the juvenile court record, mother’s court-appointed counsel informed this court she could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Mother submitted a letter in which she claims she was not provided proper notice of the proceedings or adequate legal counsel. She disputes allegations made by the Stanislaus County Community Services Agency (agency) regarding her prenatal care and the death of J.J.’s sibling in 2014. She attached medical documentation which we cannot review because it is extrajudicial evide

Appellant Melissa P., maternal aunt and legal guardian of now 11-year-old Caleb R., appeals the juvenile court’s jurisdictional finding adjudging Caleb a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b)(1). Under subdivision (b)(1) of section 300, it must be proved there is a substantial risk the child will suffer serious physical harm as a result of his guardian’s failure to supervise or protect him. Melissa contends the allegations contained in the petition failed to state a basis for jurisdiction under section 300, subdivision (b) and that there was insufficient evidence for the court to assume jurisdiction over Caleb. We conclude Melissa’s appeal is moot and dismiss it in light of the juvenile court’s order terminating the legal guardianship, which Melissa did not challenge.

Appellant Gregory Lafayette Moultrie pled no contest to one count of violating Penal Code section 487, subdivision (c), grand theft, and one count of violating section 266h, subdivision (a), pimping, and admitted a prior strike conviction, in exchange for a stipulated term of seven years four months in prison and dismissal of other counts and enhancements. Moultrie filed a notice of appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.

Appellant Shawn DJ Tenbrink stands convicted of violating Health and Safety Code section 11379.6, subdivision (a), manufacturing by chemical extraction a controlled substance, in this case hash oil or honey oil. He contends the evidence is insufficient to sustain this conviction. We affirm the conviction.
Tenbrink also admitted two Penal Code section 667.5, subdivision (b) enhancements, which the abstract of judgment erroneously reflects as Penal Code, section 667.5, subdivision (a) enhancements. The trial court also stayed imposition of punishment on these enhancements. Because Penal Code section 667.5, subdivision (b) enhancements must be imposed or stricken, but not stayed, we will remand for the trial court to exercise its discretion and direct the preparation of an amended abstract of judgment.

A jury convicted Vlad Oleg Larin, appellant, of battery causing serious bodily injury, and misdemeanor assault. On appeal, appellant contends the trial court should have instructed the jury on the limited right of an initial aggressor or participant in mutual combat to lawfully use deadly force in self-defense. We conclude the jury was properly instructed because such instruction was not supported by substantial evidence. Appellant further contends the trial court erred in allowing the People to introduce a portion of a witness’s recorded interview pursuant to the rule of completeness. We agree the trial court erred, but conclude the error was harmless, and affirm.

Defendant and appellant Charles Hage was convicted by a jury of first degree murder by discharging a firearm. This is defendant’s second appeal. In his first appeal (People v. Hage (Feb. 5, 2018, E065468) [nonpub. opn.] (Hage I)), in pertinent part, defendant argued that this court should remand the matter for resentencing on his firearm enhancement (Pen. Code, § 12022.53) allegation under recently enacted Senate Bill No. 620, which amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h). The parties agreed in their supplemental briefs that the recent amendment applied in this case retroactively, because the amendment took effect before the judgment became final in the case. Accordingly, we remanded the matter to the trial court solely for the purpose of permitting the trial court to exercise its discretion as to whether to strike defendant’s firearm enhancement allegation. In all other respects, we affirmed the judgment in defendant’s first appeal.