CA Unpub Decisions

Appellant Fabian Hancey Michel challenges his assault with a deadly weapon conviction on the ground the trial court failed to instruct, sua sponte, on juror unanimity. Because the various acts by appellant that could constitute assault were parts of a continuous transaction, Court conclude no unanimity instruction was required.

"Ruby Tuesday" was a boat. It was beached in a storm. Marlene Evangeline appeals from the judgment entered after the trial court sustained respondents' demurrer to her first amended complaint without leave to amend. Evangeline contends that the District violated the United States and California Constitutions and mandatory duties contained in the District's Code of Ordinances by requiring her to launch an unseaworthy vessel and then failing to remove it from the harbor during a storm in October 2004, when the boat ran aground.
The trial court ruled that Evangeline's complaint failed to allege breach of mandatory statutory duty by the District (Gov. Code, 815.6) and that she signed a release of liability precluding recovery of damages against the District. Court agree and affirm.

Plaintiff Joseph Serrato appeals from an order granting defendants special motion to strike plaintiffs second cause of action for defamation. He contends that granting the motion was contrary to the purpose of Code of Civil Procedure section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. He further contends that granting the motion was improper, in that he demonstrated a probability of prevailing on the merits of his cause of action. Court disagree and affirm the order.

Shaun Arrington appeals from the judgment entered upon his conviction by jury of attempted carjacking (Pen. Code, 664/215, subd. (a)) with the finding that he had sustained a prior juvenile adjudication which was alleged within the meaning of the three strikes law ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced to prison for five years, comprised of the two-year, six-month middle term for attempted carjacking doubled under the three strikes law.
Appellant contends that the evidence was insufficient to establish that his prior juvenile adjudication constituted a violent or serious felony and therefore it did not qualify as a strike under the three strikes law.
Court conclude that the matter must be remanded for a determination of this issue by the trial court. Court otherwise affirm.

Plaintiffs Yanzi Lin (Lin) and Marilyn Chen (Chen) appeal from a summary judgment in favor of defendant John Hancock Variable Life Insurance Company. Court agree in part with their challenges to the summary judgment and therefore reverse it, with directions as to how to proceed as to plaintiffs various causes of action.

Appellant Yong Duk Choi, doing business as Gene Construction, appeals from a judgment entered in favor of respondent Yun H. Kim. Court affirm.

The trial court granted summary judgment on the plaintiffs retaliation claim, and the plaintiff appeals. Court affirm.

Anthony G. Romero appeals a judgment following conviction of assault with a deadly weapon, with a finding that he committed the offense for the benefit of a criminal street gang. (Pen. Code, 245, subd. (a)(1) & 186.22, subd. (b)(1)(A).) Court affirm.

Defendant Michael Jermaine Calimon appeals from a judgment of conviction after a jury trial. The jury found defendant guilty of a violation of Penal Code section 12021, subdivision (a)(1),(possession of a firearm by a felon). The jury also found the allegations of four prior felony convictions to be true ( 667, subds. (b)-(i), 1170.12).
Although four prior strike convictions were alleged, the district attorney proceeded with the case as though it were a second strike case. The trial court therefore struck three of the four prior convictions found to be true and sentenced defendant to the midterm of two years, which was doubled as a second strike. On appeal, defendant contends the trial court abused its discretion in not granting a continuance, not conducting a Marsden hearing and denying defendants request for self-representation. Court disagree and affirm the conviction.

Appellants Rodrigo R. Rizo and Cesar G. Gonzalez were convicted by separate juries after separate trials for crimes they committed together on March 22, 2004. Gonzalez was convicted of two counts of home invasion robbery in concert. (Pen. Code, 213, subd. (a)(1)(A).) Defendant was convicted of two counts of home invasion robbery in concert and one count of carjacking. ( 215, subd. (a).) The trial judge sentenced Gonzalez to eight years in state prison, imposing consecutive six and two year sentences for the two robbery counts. ( 213, subd. (a)(1)A).) The judge sentenced Rizo to nine years in state prison, imposing two concurrent nine year upper term sentences for the two robbery counts and staying imposition of sentence on Rizo's carjacking conviction pursuant to section 654.
Gonzalez appeals his conviction and Rizo appeals his sentence. Gonzalez contends there was no substantial evidence to support his convictions for home invasion robbery and that he was entitled to an instruction on the lesser included crime of attempted robbery. Rizo contends that imposition of the upper term sentences violated his right to a jury trial. Court affirm the judgment against Gonzalez. Court reverse the judgment against Rizo and remand for re-sentencing as to Defendant.

In this medical malpractice case, appellant Artamus Rodriguez, through his mother, Susie Sinsun Rodriguez, as guardian ad litem, argues the trial court abused its discretion in allowing the jury to consider whether fault should be allocated to a nonparty doctor. He also contends the court erred by refusing the jurys request for a readback of testimony, and by making improper comments to the jury. Court affirm.

Appellant Miguel L., a minor, appeals from an order of the juvenile court in which he was found to be a ward of the court as described in Welfare and Institutions Code section 602. He was charged with a violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon, and section 594, subdivision (a), vandalism with over $400 in damage. At the adjudication hearing, the juvenile court found the allegations of the petition to be true.
Appellant was ordered into a Camp Community Placement Program for a period of six months. On appeal, appellant contends that the juvenile court misapplied the law concerning his self-defense claim, there was insufficient evidence to support the true finding of felony vandalism, the juvenile court failed to declare explicitly whether the vandalism offense was a felony or a misdemeanor, and a probation condition was unconstitutional. Court agree that there was insufficient evidence to support the vandalism offense as a felony and the probation condition was vague. In all other respects, Court find no grounds for reversal and affirm the order.

The trial court granted defendants motion for summary judgment in this action for employment discrimination based on religion. Court conclude defendants have shown plaintiff cannot establish a prima facie case of discrimination and, even if he could, he cannot defeat defendants evidence of legitimate, nonretaliatory reasons for his termination.

Plaintiff sued defendant Sonia Rodriguez for personal injuries allegedly arising from a motor vehicle accident. The jurys special verdict found that defendant was negligent, but that her negligence was not a substantial factor in causing any harm to plaintiff. Plaintiff contends he is entitled to a new trial because the court abused its discretion in allowing defendants biomechanic expert to testify at trial to opinions beyond those he had testified to at his deposition.
The general substance of the expert witnesss opinion testimony at his deposition was that the nature of the low speed accident was such that one would not expect a person of normal health to have suffered any injury from the accident in question. Thus, Court find that the expert did not exceed the scope of his deposition testimony when he opined at trial that one would not expect the accident to result in the specific knee and shoulder injuries complained of because the forces are very comparable to what would be experienced during normal routine activities, and there was also no expectation of knee contact. In any event, it is not reasonably probable that a more favorable result would have ensued; the alleged error was not prejudicial.