CA Unpub Decisions

Leon Jerome Daniels appeals from the judgment after a jury convicted him of felony assault (Pen. Code, 245, subd. (a)(1)) and street terrorism ( 186.22, subd. (a)). The jury found true a gang enhancement ( 186.22, subd. (b)(1)) and a personal infliction of great bodily injury enhancement ( 12022.7, subd. (a)).
Appellant was denied probation and sentenced to a term of six years, consisting of the midterm of three years for the felony assault and the midterm of three years for the personal infliction of great bodily injury enhancement. The court also sentenced him to 10 years on the gang enhancement, and then struck that punishment pursuant to section 186.22, subdivision (g) in the interest of justice, finding he was extremely young, that this was his first venture into the adult system, and that a 16 year sentence was too severe for the facts of the case. As to street terrorism, the court sentenced him to two years, to be served concurrently with count 1. The court awarded no credits as appellant had been serving a juvenile sentence.

In this appeal, mother, Gladys C., challenges the September 12, 2006 order, adjudicating her daughter, C., now 17, a dependent pursuant to Welfare and Institutions Code section 300, subdivisions (b), (c) and (d).[1] She also challenges the disposition order of September 26, 2006. Mother argues that substantial evidence does not support the findings that: (1) she could reasonably have known of C.s sexual abuse by mothers tenant; (2) no reasonable means existed to prevent removal from mother under section 361, subdivision (a); and (3) she was unable to properly address C.s problems. Consequently, mother argues that the disposition order, which removed C. from her custody, is not supported.
Court find substantial evidence supports the orders, and affirm.

In an information filed by the Los Angeles District Attorney on April 18, 2006, appellant Samuel Mizrahi was charged with one count of possession of a controlled substance (Count I, Health & Saf. Code, 11350, subd. (a)); one count of battery with injury on a peace officer (Count II, Pen. Code, 243, subd. (c)(2);[1]and three counts of resisting arrest (Counts III, IV, and V, 148, subd. (a)(1)). Appellant pled not guilty as to all counts. Prior to trial, appellant filed a Pitchess[2]motion for discovery of peace officer records, which was granted by the trial court on June 8, 2006. On that date, the trial court reviewed personnel records in camera and found discoverable material.
Appellant timely filed a notice of appeal. Specifically, he asks us to make an independent review of the sealed transcript of the trial courts in camera hearing on his Pitchess motion to determine whether any discoverable material was improperly withheld from him. That information includes any relevant complaints, whether sustained or otherwise, against the four peace officers involved in appellants arrest.
The judgment is affirmed.

In this suit based on the alleged negligence of a landowner in his maintenance of residential property, plaintiff Raven H. (plaintiff) appeals from a summary judgment granted in favor of defendant Linda Gamette (defendant). Defendant is the personal representative of the estate of decedent Douglas Gamette, II (decedent).
Plaintiffs suit charges that while plaintiff was a tenant at an apartment complex owned by the decedent, she was brutally sexually assaulted by a man who broke into her apartment through an unsecured window, and although the decedent was aware that violent crimes of various nature had been committed at or near his premises by criminals who gained access to victims apartments by breaking into them, the decedent failed to take adequate precautions to secure plaintiffs safety in her apartment and such failure constitutes negligence and is the cause of plaintiffs injuries from the attack on her.
The summary judgment is reversed and the cause is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.

Domingo Cleveland appeals an order committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO), following his conviction for robbery (Pen. Code, 2962, 2966, 211). Court conclude substantial evidence supports the court's finding that Cleveland's severe mental disorder was a cause or aggravating factor in the underlying commitment offense, and that he posed a substantial danger of physical harm to others (Pen. Code, 2962). Court affirm.

Jacob Rhodes appeals from the judgment entered following his guilty plea to possession of a dirk or dagger (Pen. Code, 12020, subd. (a))[1]and admission that he had served a prior prison term ( 667.5, subd. (b)). The change of plea was entered after the trial court denied appellant's motion to suppress evidence ( 1538.5) and motion to dismiss ( 995). Pursuant to the negotiated plea, the trial court struck the prior prison term enhancement and sentenced appellant to two years state prison. Appellant was ordered to pay a $400 restitution fine ( 1202.4, subd. (b)) and a $400 parole revocation fine ( 1202.45).
Court have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441; People v. Kelly (2006) 40 Cal.4th 106, 126.) The judgment is affirmed.

Defendant George Carl Sample was convicted by jury of corporal injury on a former spouse, with personal infliction of great bodily injury (count one); assault with a deadly weapon (count two); possession of a firearm by a convicted felon (count three); and battery upon a cohabitant (count five). The trial court found that he violated his probation on an earlier conviction for spousal abuse. Defendant was sentenced to an aggregate term of 11 years, eight months in state prison, including the upper term on count one and consecutive terms on count three and on the prior conviction. On appeal, defendant raised a variety of contentions, including his claim that imposition of the upper term and consecutive terms violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. [159 L.Ed.2d 403] (hereafter Blakely). Court rejected defendants contentions in an opinion, filed on September 13, 2004, that was certified for partial publication on the question whether the upper term and consecutive sentences were imposed contrary to requirements of the Sixth Amendment. Once again, Court reject defendants contentions and affirm the judgment, but direct the trial court to correct clerical mistakes in the abstract of judgment.

Plaintiff Feather River Anesthesia Medical Group, Inc. (Feather River) terminated its exclusive dealing agreement to provide anesthesia services to the patients of The Fremont-Rideout Health Group (Hospital). After the Hospital entered into an exclusive dealing agreement with another group of anesthesiologists, The Fremont-Rideout Medical Group, Inc. (Medical Group), Feather River and its member anesthesiologists sued the Hospital, the Medical Group, and several individual defendants. The judgment is reversed and the matter remanded for further proceedings consistent with this opinion (C049851). The costs awards in favor of defendants Medical Group, Coulter, Hayes, and Pace are reversed. (C050832).

A jury convicted defendant Liew Yoon Saechao of three counts of forciblelewd and lascivious acts upon his 11-year-old daughter Hi.L. (Pen. Code[1], 288, subd. (b)(1); counts I, II & III), three counts of lewd and lascivious acts upon Hi.L. ( 288, subd. (a); counts IV, V & VI), and two counts of lewd and lascivious acts upon his five-year-old daughter, Ha.L. (counts VII & VIII). The jury found that two acts involving Hi.L. had occurred on different occasions than the remaining acts involving Hi.L., and that one count involving Ha.L. had occurred on a different occasion than the other act involving Ha.L. The jury found that defendant committed lewd acts against two victims under age 14 within the meaning of section 667.61, subdivisions (b) and (e)(5).
Defendant was sentenced to state prison for a determinate term of 12 years (the six-year middle term on count VII plus a fully consecutive six-year term on count I), plus an indeterminate term of 45 years to life (three consecutive terms of 15 years to life) on counts II, III and VIII.
On appeal, defendant contends (1) evidence of his prior misdemeanor conduct was erroneously admitted for impeachment, and (2) his consecutive and fully consecutive sentences were imposed in violation of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856]. Court affirm the judgment.

A jury convicted defendant Virath Kep of seven counts of lewd and lascivious acts with a child under age 14 (Pen. Code, 288, subd. (a) counts 1 through 7) and found true allegations that he engaged in substantial sexual conduct in the commission of counts 2 and 4 through 7 ( 1203.066, subd. (a)(8)). He was sentenced to state prison for 18 years.
On appeal, defendant contends the evidence supporting the convictions is insufficient and unreliable in violation of his federal due process rights. Court affirm the judgment.

After defendant Roberto Phillips pled no contest to stalking, the trial court suspended the imposition of sentence and placed defendant on probation for a period of five years. When defendant violated the terms of his probation one too many times, the court sentenced him to three years in prison for the stalking conviction.
On appeal, defendant contends, and the People concede, that the trial court erred in imposing a duplicate restitution fine and in calculating defendants presentence custody credits (Pen. Code, 4019; further section references are to the Penal Code). Court modify the judgment and affirm it as modified.

Defendant Thomas Gene Talk pled guilty to transportation of methamphetamine arising out of conduct on March 1, 2004. He was sentenced to three years in state prison and was ordered to pay various fines and penalties, including DNA penalty assessments in the amount of $5 and $15. (Gov. Code, 76104.6.) On appeal, defendant contends, and the People concede, that the imposition of DNA penalty assessments violates the state and federal constitutional prohibitions against ex post facto laws. Court agree and modify the judgment accordingly.

Defendant John C. Hill was placed on three years of probation after entering a plea of no contest to failure to register as a sex offender. (Pen. Code, 290, subd. (a)(1)(d); further undesignated references are to this code.) He admitted two subsequent probation violations, the second of which resulted in revocation of his probation and imposition of the upper term of three years in state prison. He appeals the trial courts imposition of the upper term as a violation of his Sixth Amendment rights under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Defendant Jeremy Young stabbed a man during an altercation and then fled on a motorcycle. He led the responding police units on a high speed pursuit, during which defendant ran two red lights and traveled at speeds over 90 miles per hour. Defendant eventually lost control of the motorcycle and slid into a fence, whereupon he tried to flee on foot but was apprehended.On appeal, defendant contends the trial court erred in imposing the upper term based on aggravating factors that were not charged in the information, found by a jury, or admitted by defendant, and made the same error in imposing a consecutive term. He also claims the court violated the rule against a dual use of facts. (Cal. Rule of Courts, rule 4.425(b)(1).) Lastly, he contends the abstract of judgment must be amended to reflect the correct amount of restitution fines imposed by the court. Court agree with the latter contention. In all other respects, Court affirm the judgment.