CA Unpub Decisions

Appellants Anthony J. Lopez and Christian Hernandez appeal from their judgments of convictions. The two were tried jointly, but to separate juries. Both were found guilty of first degree murder of Raymond Jaimez (count 1) and willful, deliberate and premeditated attempted murder of Raul Magana (count 2). In addition, enhancements for personal use of a firearm and infliction of great bodily injury were found true as to Hernandez for count 1; the same allegations were found true as to Lopez for count 2.
On appeal, each defendant presents claims of prosecutorial misconduct (vouching), error with respect to the handling of questions asked by jurors, and improper admission of gang evidence. Lopez also presents a claim of instructional error, and Hernandez argues the trial court erred in admitting DNA evidence and in removing a sitting juror during the deliberation phase of the trial. Court find no error, and affirm the convictions in full.

Jan "Gigi" Bennett-Cooper appeals from the summary judgment entered in favor of Susan Cooper (Cooper) and Arlene Goldman (Goldman), respondents. Appellant contends that (1) respondents made an unlawful motion for reconsideration of the trial court's initial ruling; (2) the trial court's initial ruling was binding when it was entered in the permanent minutes and could not be changed; and (3) the trial court erred in granting summary judgment. Court reverse in part and affirm in part.

In an information filed by the Los Angeles District Attorney, appellant Robert John Roberts and his wife, Wanda Marie Roberts (Wanda), were charged in count 1 with filing a false income tax return (Rev. & Tax. Code, 19706) and in counts 2 through 4 with failing to file state income tax returns with intent to evade the payment of taxes ( 19706). Appellant pleaded not guilty.
Trial was by jury. The jury found appellant guilty on all counts. The trial court denied probation and sentenced appellant to 16 months in state prison on count 1. Sentence on the remaining counts was ordered to run concurrently. Appellant also was ordered to pay a $500 restitution fine (Pen. Code, 1202.4, subd. (b)) and a parole revocation fine (Pen. Code, 1202.45), which was imposed in the same amount and then suspended. Appellant was granted two days of presentence custody credits.
Appellant appeals from the judgment of conviction, contending that the trial court committed reversible error by (1) failing to instruct the jury sua sponte on the defense of good faith; and (2) failing to instruct the jury on an essential element of the offense charged in count 1, namely that the prosecution was required to prove the existence of a tax deficiency.
Court affirm.

Yoshiro Katsura, individually, and dba Katsura Consulting Engineers, appeals from a judgment after a bench trial awarding him $2,920, the amount due on a contract with respondent City of San Buenaventura (City). Katsura contends the City owes him an additional $20,823.75 for extra work he performed that was not specified in the contract but was purportedly orally authorized by a City employee and an agent of the City. Court affirm.

This appeal arises out of a fatal traffic accident and the ensuing wrongful death action. Defendant Jonathan Wu was driving his parents Toyota Highlander sports utility vehicle on the night of October 10, 2003, when he collided with motorcyclist Michael Turner at the intersection of San Gabriel Boulevard and Duarte Road in San Gabriel. The action was brought by plaintiffs Barbara Turner, the decedents mother, and William R. Hodgkinson, the owner of the motorcycle, against Jonathan and his father Albert Wu. Following the liability phase of the jury trial, the jury returned special verdicts that Jonathan was negligent and his negligence was a substantial factor in causing Turners death. The jury also found Turner was negligent, but that his negligence was not a substantial factor in causing his own death. Following the damages phase, the jury found Mrs. Turner suffered damages of $2 million for the loss of her sons companionship. The trial court denied defendants new trial motion and entered judgment in favor of plaintiffs.
Defendants timely appealed, contending (1) the trial court abused its discretion in refusing to permit California Highway Patrol Officer Bret Kwarta to testify as an expert witness as to the fatal collisions point of impact, and in refusing to permit defense expert witness Kenneth Obenski to testify as to the standard of care applicable to motorcyclists, (2) plaintiffs counsel engaged in prejudicial misconduct, and (3) the jurys special verdicts regarding Turners negligence amounted to irreconcilable and inconsistent determinations of material fact. As we explain, none of these contentions is well taken. Court therefore affirm.

Plaintiff and appellant Ronald Lasken (Lasken) challenges the trial courts order granting defendant and respondent Stanley Raymond Melines (Meline) special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16. The order of the trial court is affirmed.

Appellants Priscilla Sababin,[1]Carmen Escobedo, Tony Mesa and Dean Mesa are the heirs (heirs) of Arlene Renteria (Renteria). Renteria suffered from Huntingtons Chorea, a degenerative disease that, among other things, created a risk that her skin would deteriorate. While in the care of Covina Rehabilitation Center doing business as Sunbridge Care and Rehabilitation for Covina (Covina), she allegedly developed a dangerous skin condition and subsequent infection that led to her death. The heirs sued, among others, respondents Regency Health Services, Inc. (Regency) and Sun Healthcare Group, Inc. (Sun) and alleged that they both participated in running Covina. Regency and Sun obtained summary judgment based on evidence that Sun owns stock in Regency and Regency owns stock in Covina but that they have nothing to do with Covinas operations. On appeal, the heirs contend that there are triable issues as to whether Regency and Sun can be held liable for Covinas conduct on an alter ego theory, and as to whether they participated in Renterias care. Court find no error and affirm.

Willie Tenner appeals his convictions for two counts of possession of cocaine base for sale (Health & Saf. Code, 11351.5),[1] two counts of possession of methamphetamine for sale ( 11378), the sale or transport of a controlled substance ( 11352, subd. (a)), and transportation of a controlled substance ( 11379, subd. (a)).
He contends that the trial court abused its discretion and violated his right to due process by improperly consolidating the trial of offenses that occurred on two separate occasions. He also claims imposition of an upper term sentence based on aggravating factors determined by the trial court violated his right to a jury trial. Court affirm.

Appellants Michael and Maria Greenberg own real property with a fence, wall and gate structure that is the subject of a conditional modification permit from the City of La Caada Flintridge (the City). The Greenbergs unsuccessfully appealed to the City Council a condition which limited the height of the wall to six feet. They then filed a petition for a writ of mandate in superior court but failed to serve the City within the 90 day statutorily prescribed time period. (Gov. Code, 65009, subd. (c)(1).) The trial court sustained the Citys demurrer, dismissed the complaint without leave to amend and then denied the Greenbergs motion for relief under Code of Civil Procedure section 473. Contrary to the Greenbergs contentions, (1) the trial court properly denied them leave to amend their petition, (2) the City is not estopped from asserting the 90 day statute of limitations for service, and (3) the Greenbergs are not entitled to relief under Code of Civil Procedure section 473 for counsels failure to properly serve summons on the City as required by section 65009.
The judgment is affirmed.

Nicholas Coston Kelley appeals his conviction for first degree murder. (Pen. Code, 187/189.)[1] The jury found true allegations that he personally discharged a firearm causing death ( 12022.53, subds. (b)-(d)), and that the murder was committed for the benefit of, and in association with, a criminal street gang ( 186.22, subd. (b)(1)(A)). Kelley was sentenced to 50 years to life, consisting of 25 years to life for the murder, and 25 years for the section 12022.53, subdivision (d) enhancement. Sentences on the other enhancements were stayed. ( 654.) Kelley claims prejudicial error in the admission of character and opinion evidence and the exclusion of evidence supporting his defense. He also claims the trial court erred in determining custody credits. Court order a modification of the abstract of judgment to reflect the correct custody credits. Otherwise, Court affirm.

Henry Cooper, respondent, her former husband. Appellant contends that the trial court erroneously granted respondent's motion for summary adjudication on her cause of action for breach of an express contract. As to the remaining causes of action, she contends that the trial court erroneously sustained respondent's demurrer without leave to amend. Court reverse in part and affirm in part.

Alberto Joseph Smith appeals from the judgment entered after his conviction for attempted willful, deliberate and premeditated murder with special findings by the jury he had personally used a firearm and had committed the offense for the benefit of a criminal street gang. Smith contends the evidence was insufficient to support the conviction or the true finding on the gang enhancement and also argues the trial court abused its discretion in failing sua sponte to bifurcate trial of the gang enhancement allegation. Smith additionally contends use of two of the pattern jury instructions adopted by the California Judicial Council (CALCRIM Nos. 220 and 224 (2006)) violated his right to due process of law. Court affirm.

Robert Zichko was committed to a state hospital after being found not guilty of a felony offense by reason of insanity. (Pen. Code, 1026, subd. (a).) He appeals the judgment and order extending his commitment, contending that there was insufficient evidence to support the required finding that he has serious difficulty controlling his dangerous behavior because of a mental disorder. ( 1026.5, subd. (b).) He also claims the trial court violated his due process rights by allowing his counsel to waive a jury trial, and by denying his motion to replace appointed counsel. Court affirm.

This appeal is from a trial court order denying appellants Robert Mitelhaus, Mark Jenkins, Nutec Enterprises and Prudential Success Realty's motions for attorney fees, after the complaint and cross-complaint against them were dismissed. Court affirm.