CA Unpub Decisions

Appellant was convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code section 211. The jury found true the allegations that appellant personally used a firearm in the commission of the offense within the meaning of section 12022.53, subdivision (b). The trial court found that appellant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and section 667, subdivisions (b) through (i) and 1170.12 (the " three strikes" law). The court also found that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total term of 22 years in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in limiting the testimony of his expert on eyewitness identification. Court affirm the judgment of conviction.

Defendant appeals from the judgment entered following an order revoking his probation and imposing a 16-month state prison sentence as a result of his earlier no contest plea to making a criminal threat.
Court have examined the entire record and are satisfied that Defendant's attorney has fully complied with the responsibilities of counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment and order revoking probation and imposing a 16-month sentence are affirmed.

Appellants were tried jointly before two separate juries. They were convicted of two counts of attempted premeditated murder. (Pen. Code, SS 664, 187.) Washington also was convicted of one count of first degree murder (S 187) and one count of conspiracy to commit murder. (SS 182, 187.) McKeithan was convicted of two additional counts of attempted premeditated murder (SS 664, 187) and one count of carrying a loaded firearm (S 12031, subd. (a)(1)). Firearm and gang enhancement allegations were found true. (SS 186.22, subd. (b), 12022.53, subds. (b) (e).)
Appellants claim the judgment must be reversed because there is insufficient evidence to support the gang enhancements, the trial court erred in failing to give various instructions, the prosecutor made improper remarks while questioning a witness and in his closing statement, and the trial court made various sentencing errors.
Court conclude the trial court erred in sentencing but otherwise affirm the judgments of conviction.

Department of Health Services determination that surgical clinic that is owned and operated by licensed physician but in which non owner, nonlessee physicians practice is not "owned or leased and operated...by one or more [physicians] and used as an office for the practice of their profession" and thus requires licensing was reasonable as a matter of "simple interpretive policy" not requiring formal rulemaking.

The jury found defendant guilty on two counts of possession for sale and sale of heroin (heroin case). The trial court entered a judgment of conviction on the verdict, and also found defendant in violation of his probation on a prior attempted robbery conviction (robbery case). Defendant was sentenced in each case to state prison.
The judgment in the heroin case (number BA288762) is affirmed. The robbery case (number BA274126) is remanded for resentencing, but the judgment in that case is affirmed in all other respects.

Defendant appeals from a judgment entered upon his conviction by jury of misdemeanor simple assault (Pen. Code, S 240). The trial court placed appellant on three years summary probation on the conditions, among others, that he serve six months in county jail and pay victim restitution. Appellant contends that the trial court erred (1) in rejecting his refusal to accept probation, and (2) in ordering him to pay victim restitution.
Court remand for resentencing and otherwise affirm.

In one appeal (No. B190298), Brian B. and Mandy M. appeal from an order of the dependency court terminating their parental rights as to Brandy M. and Nathan B. In a second appeal (No. B191774), Brian also appeals from the dependency court's order denying him DNA testing as to Connor M. Court affirm both orders.

This appeal is from a dismissal of the action filed in the Los Angeles County Superior Court following the sustaining of a demurrer to plaintiffs' first amended complaint without leave to amend. The dispute giving rise to the Superior Court action involves eight siblings and their alleged respective rights to share pro rata in the proceeds of sale of real estate formerly owned by their deceased father and mother. For the reasons hereafter stated court affirm the judgment dismissing the action.

The mother of minor, appealed from the order terminating her parental rights. Minor lived with his maternal grandparents who were his legal guardians and wanted to adopt him. Mother contends there was insufficient evidence to support that order as the adoption home study was not complete and the marital status of the prospective adoptive parents was not documented. Court affirm.

Appellant was convicted by a jury of assault with a firearm with the personal use of a firearm (Pen. Code, SS 245, subd. (a)(2), 12022.5, subd. (a)(1)), two counts of attempted premeditated murder with the personal use and intentional discharge of a firearm (SS 664/187, subd. (a), 12022.53, subds. (b) and (c)), and shooting at an inhabited dwelling (S 246). The jury also found that he committed all four offenses for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). Appellant was sentenced to 35 years to life. Appellant appeals, contending that: (1) the evidence was insufficient to support the finding that he committed the assault for the benefit of a street gang; (2) his constitutional rights to due process were violated when the court allowed an expert to testify that the shootings were committed to benefit a gang; and (3) the court erred when it failed to instruct the jury on the offense of discharging a firearm in a grossly negligent manner (S 246.3) as a lesser included offense of shooting at an inhabited dwelling, the charged offense in count 4. Court affirm the judgment.

Defendant appeals from the judgment entered following revocation of probation. He previously pled guilty to one count of first degree residential burglary (Pen. Code, S 459); imposition of sentence was suspended, and he was placed on formal probation for three years. The terms of probation included that he serve 270 days in county jail, obey all laws and orders of the court, and report to his probation officer as directed.
Court have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

The parents of three year old K.S. and two year old S.S., appeal from the juvenile court's August 14, 2006 order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. David argues the court erred in failing to apply the parent child relationship exception to termination of parental rights contained in section 366.26, subdivision (c)(1)(A). Lorenza asserts no independent error; she joins David's argument and urges, if court reverse the termination order as to David, court should also reverse the order as it applies to her. Court affirm.

The mother, appeals from the orders terminating her parental rights to the child. pursuant to Welfare and Institutions Code section 366.26 and finding that there had been proper compliance with the notice requirements of the Indian Child Welfare Act. (25 U.S.C. SS 1901 - 1963.) On January 19, 2006, court reversed the juvenile court's June 29, 2005 parental rights termination order and remanded the matter for the sole purpose of complying with the notice provisions of the Indian Child Welfare Act. (In re Trent V. (Jan. 19, 2006, B184197) [nonpub. opn.].) Court further ordered, "If after proper notice is given, the child is determined not to be a Native American, the juvenile court is directed to reinstate the parental rights termination order." (Id. [typed opn. at p. 8].)
On appeal, the mother claims the termination order should be reversed a second time because the Los Angeles County Department of Children and Family Services ("the department") failed to provide proper notice as required by the Indian Child Welfare Act. Court agree with the department and reverse the parental rights termination order solely for purposes of complying with the Indian Child Welfare Act.

This case arises from an order denying a motion to strike punitive damages allegations. The motion was based on Code of Civil Procedure section 425.14. That statute prohibits a claim in a complaint or other pleading for punitive damages against a religious corporation unless the court first allows it on application by the plaintiff and a finding substantiating the likelihood that plaintiff will satisfy the clear and convincing evidence standard of Civil Code section 3294.
An order issue under the authority and seal of this court directing respondent court to vacate its previous order denying the motion of petitioner Medical Center to strike punitive damages allegations and the related prayer in the pending proceeding and to issue a new order granting that motion. Petitioner is awarded costs in this proceeding.