CA Unpub Decisions

N. L. (Father) seeks an extraordinary writ to set aside an order of the San Francisco County Superior Court, Juvenile Division, which terminated his reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for his daughter, P. L. (born March 2005). Father contends the court erred in that: it set the six month status review hearing (six-month hearing) prematurely; it failed to give him the oral advisement required under section 361.5, subdivision (a) at the conclusion of the dispositional hearing; it improperly denied his request for a continuance made at the outset of the six month hearing; and it made a finding not supported by substantial evidence at the conclusion of the six month hearing, to the effect that the countys Department of Human Services (Department) offered or provided him reasonable reunification services. As discussed below, court find no merit in these claims and deny Fathers petition on the merits.

Defendants, Charlie Royce Kephart and Steven Guerrero, appeal from their convictions for battery with serious bodily injury. (Pen. Code,[1] 243, subd. (d).) Mr. Kephart also appeals from his conviction for mayhem. ( 203.) Mr. Kephart argues: the prosecutor improperly cross-examined Mr. Guererro; the trial court improperly excluded evidence of the violent nature of the victim, Roger Sebastian Kreszchuk; the trial court should have allowed two witnesses to testify as to the effect of a choke hold; the evidence was insufficient; and there was instructional error. Mr. Guerrero raises a sufficiency of the evidence contention and an instructional error argument. Defendants adopt each others arguments. Court affirm.

Appellant Connie Washington sued respondent Allstate Indemnity Company (Allstate) and M.B. Automotive (not a party hereto) because the engine of her car, repaired at one point by M.B. Automotive, seized up and Allstate refused to pay the resulting damages. Prior to trial, the court granted Allstates motion for summary adjudication in appellants claims for bad faith and punitive damages. The case went to trial on the bifurcated issue of judicial estoppel, which was tried to the court. The court determined that judicial estoppel applied to the case and entered judgment for Allstate. Court affirm.

The jury found defendant Andres Gonzalez guilty of two counts of forcible rape, in violation of Penal Code section 261, subdivision (a)(2), one count of forcible sodomy, in violation of section 286, subdivision (c)(2), and one count of forcible oral copulation, in violation of section 288a, subdivision (c)(2). The victim in all counts was A. As to one forcible rape count (count sevenoccurring at defendants apartment), the jury found defendant kidnapped A. within the meaning of section 667.61, subdivisions (d)(2) and (e)(1). The jury acquitted defendant of kidnapping to commit rape in violation of section 209, subdivision (b)(1). The trial court imposed a 25 year to life sentence on the aggravated kidnapping conviction under section 667.61, subdivision (d)(2). Full, separate, and consecutive midterm sentences of six years were imposed pursuant to section 667.6, subdivision (d),[3]on the second rape conviction and on the forcible oral copulation conviction. A concurrent six-year term was imposed on the forcible sodomy conviction. Defendants total sentence was 37 years to life.
In this timely appeal, defendant contends the true findings on the kidnapping special allegations are inconsistent with his acquittal of kidnapping to commit rape, and substantial evidence does not support the kidnapping special allegations. He argues instructional error and that the imposition of consecutive terms violated his federal constitutional right to a jury trial. We hold the verdict is not inconsistent, substantial evidence supports the jurys verdicts, and no prejudicial instructional error occurred. We further hold the imposition of consecutive terms did not violate defendants constitutional rights. Therefore, Court affirm the judgment.

Cedric Maurice Thomas appeals his convictions for, among other charges, attempted murder, and three counts of assault with a firearm. The evidence adduced at trial showed appellant fired a gun at a van occupied by his estranged wife and his youngest son and daughter. He maintains there was insufficient evidence to support his conviction for assault against his son because he claims there was no evidence that he was aware that his son was in the vehicle when he fired at it. Appellant also asserts that the court erred in answering questions submitted by the jury with respect to the assault charge involving his son. He further claims the court erred in admitting evidence of threats uttered against his estranged wife during his interview with a psychiatrist at the county jail. Finally, appellant claims the court committed prejudicial error in failing to give the cautionary instruction to the jury to view his out of court statements with caution. As we shall explain, sufficient evidence supported appellants convictions and the court did not abuse its discretion in handling questions from the jury. In addition, appellants statements to the psychiatrist were properly admitted and any error in failing to give the form cautionary instruction was harmless. Accordingly, Court affirm.

Following a court trial, Vincent Anthony Callender (appellant) was convicted of forcible rape (Pen. Code, 261, subd. (a)(2)), forcible sodomy ( 286, subd. (c)(2)), and forcible oral copulation ( 288a, subd. (c)(2)). The court also found that appellant engaged in the tying or binding of the victim as to each count ( 667.61, subd. (b)) and that he had previously served a prison term ( 667.5, subd. (b)). Appellant was sentenced to 16 years to life. He appeals, contending that he was denied his constitutional right to a fair trial because the court erroneously allowed him to represent himself. Court affirm the judgment.

Juan Robles attempts to appeal from a carjacking conviction following a negotiated plea in which he was sentenced to three years state prison. (Pen. Code, 215.) Before sentencing, appellant moved to withdraw the plea (Pen. Code, 1018) after his friend and codefendant told the police that appellant "had nothing to do with this." The trial court denied the motion and denied appellant's request for a certificate of probable cause. ( 1237.5.)
Robles appealed and filed a petition for writ of mandate. In our previous unpublished opinion, a majority of the court issued a peremptory writ and reversed the judgment with directions to grant the motion to withdraw the guilty plea. The People successfully petitioned for rehearing.
On rehearing, Court deny the petition for writ of mandate. Without a certificate of probable cause, the appeal must be dismissed. (People v. Panizzon (1996) 13 Cal.4th 68, 89 and 90; In re Brown (1973) 9 Cal.3d 679, 683.)

Appellant Fannette Ball filed an action against respondents Merchants Building Management, LLC (hereafter Merchants), Westfield Corporation, Inc., and Century City Mall, LLC, arising from appellants fall on premises owned by Century City Mall. The trial court granted respondents motions for summary judgment on the ground that appellant failed to raise a triable issue of material fact with respect to whether the area on which she fell was in a dangerous condition at the time of the accident. Court conclude that the trial court erred in sustaining objections to evidence propounded by appellant in opposition to the motion and that this evidence establishes that there are triable issues of material fact. Accordingly, Court reverse the judgment.

Plaintiff Aaron Gurican appeals a summary judgment entered in favor of defendant County of San Luis Obispo (County) in his personal injury action. He alleged that the County maintained a negligently designed intersection which was a substantial factor in his accident with a motorist. Court conclude, among other things, that Gurican met his burden to show triable issues of fact on negligence and causation. From the evidence he presented a trier of fact could reasonably infer that the County maintained a dangerous road condition which substantially increased the risk that Gurican would be injured. Court reverse.

Defendant Jose Niebla was convicted by jury of kidnapping, two counts of inflicting corporal injury on a former cohabitant, residential burglary, two counts of dissuading a witness by force or threat, assault by means likely to produce great bodily injury, uttering a criminal threat, sexual penetration with a foreign object, forcible oral copulation, three counts of forcible rape, two counts of battery inflicting injury upon a peace officer, and resisting an executive officer by use of force or violence. (Pen. Code, 207, subd. (a); 273.5, subd. (a); 459; 136.1, subd. (c)(1); 245, subd. (a)(1); 422; 289, subd. (a)(1); 288, subd. (c)(2); 261, subd. (a)(2); 243, subd. (c)(2); 69.) He was also convicted of the misdemeanor offenses of assault, committing a lewd act in the presence of a minor, and child endangering. ( 240; 273g; 273a, subd. (b).) The jury found that the sexual penetration with a foreign object, oral copulation, and rapes were committed during the commission of a burglary. ( 667.61, subds. (b) and (e)(2).) Defendant was sentenced to five consecutive 15 year-to-life terms and a consecutive determinate term of 39 years and eight months. He appeals, contending that the trial court failed to properly instruct the jury on the burglary charge and sentenced him improperly to consecutive life terms for the offenses of sexual penetration with a foreign object, oral copulation, and rape and concurrent terms for the offenses of assault and inflicting corporal injury on a former cohabitant. He also argues that his counsel was ineffective for failing to request a pinpoint instruction on the burglary charge. In anticipation that this matter will be remanded for resentencing, he asserts that the imposition of full consecutive sentences under section 667.6 violates his Sixth Amendment right to a jury trial. Court affirm the convictions and remand the matter for resentencing.

Appellant was convicted by jury of second degree robbery of Jun Wen (Pen. Code 211, count 10) and the following violent crimes committed upon H.S.: kidnapping to commit rape and robbery ( 209, subd. (b)(1), count 1), second degree robbery ( 211, count 2), carjacking ( 215, subd. (a), count 3), criminal threats ( 422, count 4), assault with intent to commit rape ( 220, count 5), forcible rape ( 261, subd. (a)(2), count 6), forcible oral copulation ( 288a, subd. (c)(2), count 7) and two counts of sexual penetration by foreign object ( 289, subd. (a)(1), counts 8 and 9). On counts 1 through 4, the jury found true allegations that appellant personally used scissors as a deadly weapon. ( 12022, subd. (b)(1).) On counts 6 through 9 (the sex offenses), the jury found true allegations that appellant personally used a deadly weapon ( 12022.3, subd. (a)) and that appellant committed the crimes under the aggravating circumstances of kidnapping H.S. ( 667.61, subd. (e)(1)), substantially increasing her risk of harm ( 667.61, subd. (d)(2)), and personally using a deadly weapon ( 667.61, subd. (e)(4)).
The trial court sentenced appellant to an indeterminate term of 50 years to life, plus eight years, and a determinate term of 35 years in state prison as follows: two identical consecutive full terms of 25 years to life for violation of sections 261, subdivision (a)(2) (count 6) and 289, subdivision (a)(1) (count 8) pursuant to section 667.61, subdivision (a), (d) and (e), plus four years each for personal use of a deadly weapon ( 12022.3); two identical consecutive full terms of six years for violation of sections 288a, subdivision (c)(2) (count 7) and 289, subdivision (a)(1) (count 9) pursuant to section 667.6, subdivision (c),[2]plus four years each for use of a deadly weapon ( 12022.3); a five-year term for violation of section 215, subdivision (a) (count 3), plus one year for personal use of a deadly weapon ( 12022, subd. (b)(1)); a concurrent four-year term for violation of section 220 (count 5); and a consecutive one-year term for violation of section 211 (count 10). The court also imposed and stayed a sentence of life in prison, plus one year for violation of section 209, subdivision (b)(1) (count 1, 12022, subd. (b)(1), 654); a three year term, plus one year for violation of section 211 (count 2, 12022, subd. (b)(1), 654); and a two year term, plus one year for violation of section 422 (count 4, 12022, subd. (b)(1), 654).
The judgment is modified to include a $200 court security fee pursuant to section 1465.8, subdivision (a)(1), and fully consecutive terms for counts 7 and 9, and is otherwise affirmed.

Gary Joseph Osborne was convicted by a jury of two counts of robbery with the use of a deadly weapon (Pen. Code, 211, 12022, subd. (b)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and petty theft ( 484, subd. (a)). He was sentenced to five years in prison. He appeals, contending that the judgment must be reversed because the jury was not instructed on the definition of reasonable doubt. (CALJIC No. 2.90.) Court agree and reverse the judgment.

Clay Bryant appeals from the judgment entered following a jury trial that resulted in his conviction of one count of possession of cocaine (Health & Saf. Code, 11350, subd. (a)) with true findings that he had suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and had served a prior prison term pursuant to Penal Code section 667.5, subdivision (b). Bryant contends that the prosecution offered insufficient evidence to prove that he possessed cocaine. He also requests that we independently review the transcript of the trial courts in camera hearing on Bryants Pitchess motion for discovery of evidence of misconduct by the arresting police officers (Pitchess v. Superior Court (1974) 11 Cal.3d 531), and that we reverse and remand if the record shows that he was improperly denied discoverable documents. Bryant and the Attorney General agree that if we affirm the judgment, additional trial surcharges and penalties must be imposed pursuant to People v. Chavez (2007) 149 Cal.App.4th 1340. Court impose additional fees and surcharges pursuant to Penal Code section 1464 and Government Code sections 70372, subdivision (a) and 76000. In all other respects, Court affirm the judgment.

According to plaintiff and appellant Michael Fouse, pharmacist Don Shin and Walgreen Company (defendants and respondents in this appeal) violated plaintiffs civil rights under the Unruh Civil Rights Act (the Unruh Act) and committed other tortious acts when Shin refused to fill plaintiffs prescription for a medication to treat plaintiffs acquired immune deficiency syndrome (AIDS) and divulged plaintiffs medical condition to those at the pharmacy. The trial court dismissed plaintiffs first amended complaint on alternative groundsit sustained defendants demurrer without leave to amend and granted their motion to dismiss pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute). In plaintiffs timely appeal, he contends the trial court erred in finding his lawsuit to be a SLAPP suit and awarding attorney fees thereon and in finding no triable issues of fact in the operative pleading. Court agree with plaintiff that the anti SLAPP statute did not apply to defendants alleged misconduct. As to the demurrer, Court hold the trial court erred in dismissing the Unruh Act claim and the claim for intentional infliction of emotional distress, but the court ruled correctly in dismissing the claims for violation of the California Medical Information Act, fraud, and negligence.