CA Unpub Decisions

Michael Todd Howard appeals an upper term sentence and restitution and revocation fines for his conviction of burglary with intent to commit rape (Pen. Code,[1] 459, 460, 1202.4, subd. (b), 1202.44, 1204.45). He contends the upper term sentence violates his rights to due process and a jury trial, and the amounts of the restitution and revocation fines were unjustified. Court conclude the upper term sentence was properly imposed and Howard waived the challenges to the amounts of the fines by failing to raise the matter below. Court find, however, that the minutes and abstract of judgment need to be corrected to reflect all the fines imposed by the court. Court affirm the judgment as modified.

Christopher Lynn Johnson, M.D. appeals from a judgment entered in favor of Riverside Healthcare System, L.P., a private hospital (RHS or hospital), after the trial court denied his petition for a writ of administrative mandate. (Code Civ. Proc., 1094.5.) In his petition, Dr. Johnson sought to set aside a final decision of the RHS governing board denying his application for readmission to the medical staff. He applied for readmission after he was automatically terminated for failing to timely pay his annual dues. Before his automatic termination, he had been a member of the medical staff for over three years.
Dr. Johnson raises numerous claims of error. He initially claims he was denied a fair hearing before the JRC in accordance with the medical staff bylaws (bylaws) and Business and Professions Code section 809 et seq. He also claims the medical staff, the JRC, and the hospital committed numerous errors, and that the hospitals final decision denying his application is not based on substantial evidence. He further contends that the appeal board exceeded its authority in concluding, contrary to the JRC, that his application should be denied on both clinical and behavioral grounds. Finally, he claims the JRC erroneously treated him as an initial applicant, and accordingly imposed upon him the burden of proving he was currently qualified to serve on the medical staff.
For the reasons that follow, Court conclude that Dr. Johnsons petition was properly denied. Accordingly, Court affirm the judgment.

Defendant appeals his convictions for two counts of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a); counts 3 & 9); four counts of receiving stolen property (Pen. Code, 496, subd. (a), 496d, subd. (a); counts 4, 10, 14 & 15); five counts of vehicle burglary (Pen. Code, 459; counts 5, 8 & 11-13); assault on a peace officer (Pen. Code, 240; count 1); resisting arrest by attempting to remove a firearm (Pen. Code, 148, subd. (d)(1); count 2); obstructing or resisting peace officers (Pen. Code, 69; count 7); possession of methamphetamine (Health & Saf. Code, 11377, subd. (a); count 6); and possession of marijuana (Health & Saf. Code, 11357, subd. (b); count 16). He contends that he was prejudiced because the trial court failed to appropriately instruct the jury on the use of circumstantial evidence (CALJIC No. 2.01) and that the trial court violated Penal Code section 654[1]by not staying execution of sentence on the assault conviction (count 1). The judgment is affirmed.

In these consolidated appeals, defendants Alton and Loretta Perkins (husband and wife) appeal in propria persona from an order of the San Francisco Superior Court denying their motion to set aside their default (Code Civ. Proc., 473 ) in an action against them and various corporate entities by plaintiff Intagio Trading Network, Inc. (No. A111128). Appellants also appeal the courts later denial of their motion to vacate and set aside a void judgment (No. A112104). Court affirm the order in A111128, and vacate the order in A112104, as the court exceeded its jurisdiction in entering that order while the appeal in A111128 was pending.

Appellant Leron Leon Morris (Morris) was convicted of two counts of first degree murder and two counts of first degree residential robbery. He claims on appeal that the court erred in admitting his pretrial statements to police. Morris also asserts that the court erred in its instructions to the jury on conspiracy, robbery and aiding and abetting. Finally, he argues that he was denied the effective assistance of counsel. Court affirm.

This matter comes to us on remand from the California Supreme Court, with directions to vacate [our] decision and to reconsider the cause in light of People v. Crandell (2007) 40 Cal.4th 1301 [Crandell] . . . .
Appellant John Leroy Clemons pled guilty to charges of possession of methamphetamine with intent to sell (Health & Saf. Code, 11378) and driving with a suspended license (Veh. Code, 14601.1). The court sentenced him to serve a total of five years in state prison, and imposed fines totaling $3,900, with a $1,200 fine stayed pending completion of parole. The court later modified the restitution component of the sentence, reducing the total fines to $2,900, with a $1,000 fine stayed pending completion of parole. On appeal, appellant contends the trial court erred by: (1) denying his motion to suppress evidence; (2) imposing a sentencing enhancement for appellants prior drug conviction under the mistaken belief that it was mandatory to do so; (3) imposing a laboratory fee, drug program fee and fine for the Vehicle Code section 14601.1 conviction, and associated penalty assessments; and (4) imposing a restitution fine.
The abstract of judgment is to be amended to reflect a $10 reduction in the penalty assessment imposed in connection with the fee under Vehicle Code section 14601.1. In all other respects, the judgment is affirmed.

Defendant Phong Nguyen appeals from a judgment of conviction of seven counts of forcible lewd acts upon a minor (Pen. Code, 288, subd. (b)(1)),[1]one count of mayhem ( 203), and sentencing enhancements based upon the fact that the forcible lewd act counts involved multiple victims ( 667.61, subd. (b), 667.6, subd. (d)).) He contends that the trial court erred because (1) it admitted hearsay statements of the two sexual abuse victims; and (2) it failed to give lesser included offense instructions with respect to the mayhem charge. Court reject these arguments and affirm the conviction.

Eric Garrison appeals his jury conviction for possession of cocaine base. He argues his conviction must be reversed because the trial court declined to suppress evidence that officers discovered cocaine base among his belongings during an inventory search. Court affirm.

After a contested hearing, the juvenile court denied a motion to suppress evidence and found true allegations that minor D.H. was in possession of ecstasy (methylenedioxymethamphetamine, hereafter MDMA) and marijuana. On appeal, D.H. contends the court erred when it (1) denied the suppression motion; and (2) admitted evidence of a forensic analysis performed on the suspected drugs. He also asserts the evidence was insufficient to prove he possessed MDMA in violation of Health and Safety Code section 11350. Court agree on the latter point and therefore reverse the true findings on count I of the petition. In all other respects, Court affirm.

Defendant and appellant Pius Lee (Lee) appeals the trial courts denial in part of his special motion to strike (Code of Civil Procedure 425.16) plaintiff and respondent Yee Keung Sius (Siu) First Amended Complaint (FAC). Court affirm in part and reverse in part.

A. D. (mother) appeals from an order by the juvenile court terminating her parental rights over her son Gerardo A. (Welf. & Inst. Code, 366.26.) She contends the judgment must be reversed because the evidence did not establish that it was likely Gerardo would be adopted. Court affirm.

Defendant Megan Doreen Laramore timely appeals from a March 29, 2007 judgment sentencing her to two years in prison after she pled no contest to violating Health and Safety Code section 11377, subdivision (a) by possessing methamphetamine, and after she admitted violating probation three times. In her notice of appeal, defendant contends that the trial court erred in denying her motion to withdraw her plea because her plea was involuntary in that counsel left her no choice but to enter her no contest plea by refusing to consider her explanations in prep[a]ration for a trial defense. Defendants appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Counsel has also advised defendant of her right to file a supplemental brief, which defendant has not done. Court have reviewed the entire record and agree with counsels assessment. Court conclude that the trial court did not abuse its discretion in denying defendants motion to withdraw her plea. (People v. Weaver (2004) 118 Cal.App.4th 131, 146 [denial of a motion to withdraw a plea is reviewed under the abuse of discretion standard].) Court also conclude that there is no issue warranting further briefing.

The factual underpinnings of this case involve allegations by Westland and Valentine that Matthews breached his fiduciary duties, including the duty of loyalty, and committed legal malpractice. At trial, there was conflicting evidence as to who Matthews represented and when. There were disputes over the authenticity of documents and confusing evidence as to when Valentine was an officer of Westland. The jury found that Matthews represented Westland until May 15, 1999, the date Retra agreed to buy the option from Westland. This finding was consistent with Matthewss testimony. Court hold: (1) the trial court lacked jurisdiction to rule on the posttrial motions for judgment notwithstanding the verdict and new trial; (2) Westland and Valentine have not shown error with regard to the award against them for compensatory damages on the slander of title cause of action, however, the trial court erred in awarding Retra punitive damages on that cause of action; and (3) the trial court correctly denied Matthewss motion for directed verdict. Court remand to the trial court and direct it to (1) reinstate the jury verdict on the complaint in the sum of $2,016,709 in favor of Westland against Matthews and his law firm, Matthews & Partners, and (2) strike the $20,000 punitive damage award in favor of Retra on the slander of title cause of action. In all other respects Court affirm.

Kathy M. Risner (Risner) appeals from a final judgment entered after a jury trial in favor of Freid and Goldsman, PLC, and Manley Freid (collectively F & G), in the amount of $246,707.38. Risner also appeals a separate award of attorney fees and costs entered in favor of F & G in the amount of $91,002.85. F & G cross-appealed from the attorney fee and cost award. Court reverse and remand for further proceedings the trial courts award of prejudgment interest but affirm the judgment in all other respects. Court also affirm the attorney fee and cost award.