CA Unpub Decisions

Appellant appeals from the judgment following a jury verdict for respondent. Court affirm in part, and reverse and remand for retrial.

Appellant, a psychiatrist, appeals from the judgment denying his petition for a writ of administrative mandamus, directed to Cedars-Sinai Medical Center (Cedars) and the Medical Staff of Cedars-Sinai Medical Center (medical staff), seeking to vacate the decision of Cedars's board of directors (Board) confirming the report and recommendation of the Board's appeal committee regarding Dr. Tolwin's medical disciplinary matter. Dr. Tolwin contends Cedars's peer review system violates California law and the original recommendation of the hearing committee to rescind his summary suspension, subsequently modified by the medical executive committee (MEC) and the Board's appeal committee, should be reinstated. Court affirm.

Appellant challenges the decision of the juvenile court sustaining a Welfare and Institutions Code section 602 petition against him on the ground the trial court considered a dismissed charge in reaching its disposition. Court agree and remand for a new disposition hearing.

Plaintiff sued the attorney who represented her in a prior litigation, defendant, and his law firm, defendant Kass & Kass, for legal malpractice in connection with Kass's handling of the prior litigation. Defendant responded with a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16, contending that his conduct of the prior litigation constituted protected activity and that Walsh was unlikely to prevail in her malpractice action. The trial court denied the special motion, concluding that the conduct on which this malpractice action is based does not constitute protected activity under the anti-SLAPP statute. Court agree and affirm.

Defendant successfully brought a Faretta motion and represented himself at trial, after which he was found guilty by a jury of one count of dissuading a witness in violation of Penal Code section 136.1, subdivision (a)(2). The court sentenced defendant to the upper term of three years in state prison, plus one year to be served consecutively for a prior prison term found true by the jury.
On appeal, defendant contends the trial court erred by (1) allowing defendant to represent himself; (2) not conducting, sua sponte, a hearing to determine defendant's competency to stand trial; (3) allowing defendant to continue representing himself in light of information that he suffered from mental illness; and (4) imposing the upper term in violation of both Blakely and the prohibition against dual use of facts. Court affirm.

A jury found defendant guilty of being a convicted felon in possession of a firearm, carrying a concealed firearm, and carrying a loaded firearm. (Pen. Code, SS 12021, subd. (a)(1), 12025, subd. (b)(6), 12031, subd. (a)(2)(F); further section references are to the Penal Code unless otherwise specified.) The jury also convicted him of assault with a semiautomatic firearm and found he personally used the firearm and caused great bodily injury in the commission of the offense. (SS 245, subd. (b), 12022.5, subd. (a), 12022.7, subd. (a).) Defendant was acquitted of discharging a firearm with gross negligence. ( S 246.3.) Finding that defendant had a prior conviction for a serious felony and had served a prior prison term (SS 667, subds. (a), (b)_(i), 667.5, subd. (b), 1170.12), the trial court sentenced him to an aggregate term of 25 years in state prison.
On appeal, defendant contends that his conviction for assault with a firearm is not supported by substantial evidence and that it also must be reversed due to instructional errors. Court disagree and affirm the judgment.

A jury convicted defendant of the willful, deliberate, and premeditated attempted murder of Matt Tallman, a peace officer engaged in the performance of his duties (count 1; Pen. Code, SS 664/187; undesignated section references are to the Penal Code); assault with a firearm upon Tallman, a peace officer engaged in the performance of his duties (count 2; S 245, subd. (d)(1)); assault with a firearm upon Jamin Martinez, a peace officer engaged in the performance of his duties (count 3; S 245, subd. (d)(1)); possession of a firearm by a convicted felon on March 21, 2004 (count 4; S 12021, subd. (a)(1)); misdemeanor infliction of corporal injury resulting in a traumatic condition upon defendant's spouse (count 5; S 273.5, subd. (a)); discharging a firearm at an occupied building on March 14, 2004 (count 6; S 246); and possession of a firearm by a convicted felon on March 14, 2004 (count 7; S 12021, subd. (a)(1)).
The jury also found: As to counts 1 and 2, defendant inflicted great bodily injury (S 12022.7, subd. (a)) and intentionally and personally discharged a firearm causing great bodily injury (SS 12202.53, subds. (b)_(d), (e)(1)). As to counts 2 and 3, defendant used a firearm (SS 12202.53, subd. (b), 12022.5, subds. (a), (d)). As to count 3, defendant intentionally discharged a firearm (S 12022.53, subd. (c)) and personally used a firearm (SS 12022.53, subd. (b), 12022.5, subd. (a)).
In a bifurcated proceeding, the trial court found defendant had suffered a prior serious felony that constituted a strike (SS 667, subds. (a), (b) (i), 1170.12) and had served a prior prison term (S 667.5, subd. (b)).
After denying defendant's motion to strike his prior convictions, the trial court sentenced him to a determinate state prison term of 20 years plus a consecutive indeterminate term of 55 years to life.
Defendant contends the trial court committed numerous instructional errors; he also contends there was insufficient evidence to support his conviction on count 5 (infliction of corporal injury with traumatic condition on his spouse). The People concede the last point. Court reverse defendant's conviction on count 5 and remand for resentencing on the lesser included offense of battery; in all other respects court affirm.

Appellants, the mother and father of the minors, appeal from the juvenile court's jurisdictional and dispositional orders. (Welf. & Inst. Code, SS 360, subd. (d), 395; further section references are the Welfare and Institutions Code unless otherwise specified.) Appellants claim there was insufficient evidence to support the jurisdictional findings and the removal of the minors from appellants' custody. Court disagree and affirm the orders.

Defendant entered a negotiated plea of no contest to willfully evading a pursuing peace officer, and she admitted having a prior serious felony conviction and having served three prior, separate prison terms. The trial court sentenced her to an aggregate term of nine years in prison (the upper term of three years, doubled to six years pursuant to the "three strikes law," plus three years for the prior prison term enhancements).
On appeal, defendant contends her upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely). Court disagree and affirm the judgment.

Defendant was convicted of a prior offense in Tehama County Superior Court case No. NCR53944 on January 8, 2001, an offense requiring him to register as a sex offender pursuant to Penal Code section 290. Defendant failed to register within five days of his January 24, 2005 birthday.
On January 31, 2006, defendant entered a negotiated plea of no contest to failure to update his annual registration as a sex offender (S 290, subd. (a)(1)(D)) and admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b). In exchange for his plea a second prior prison term allegation was dismissed with a Harvey waiver.
In March 2006, the trial court sentenced defendant to the midterm of two years in state prison for failing to register and an additional year for the prior prison term. The trial court also ordered defendant to pay a $600 restitution fine (S 1202.4, subd. (b)), suspended a parole revocation restitution fine in the same amount (S 1202.45), and imposed a $20 court security fee (S 1465.8). Defendant was awarded 82 actual days and 40 conduct days for a total of 122 days of custody credit.
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
The judgment is affirmed.

Defendant, who has also been known as Luis Mendoza, was convicted of two counts of committing lewd acts upon a child. (Pen. Code, S 288, subd. (a).) The trial court sentenced Sanchez to prison for 10 years for the sex offenses and imposed a one-year sentence for a prior drug conviction for which Sanchez was on probation at the time he was arrested for the instant offenses.
Defendant argues that the trial court erred by instructing the jury during Defendant's testimony that it had already ruled Defendant's admissions to police were admissible and that police had not violated Defendant's Miranda rights. Defendant also argues that the trial court's imposition of an upper term sentence violated his constitutional rights to a jury trial and due process. As court explain, court conclude that Defendant's arguments are without merit, and accordingly, court affirm.

In September 2003, plaintiff, sued defendant for damages for personal injuries arising out of an automobile accident that occurred in September 2002. When the parties appeared for trial in November 2005, defendant sought dismissal on the basis that no expert medical testimony was available from plaintiff and plaintiff had not shown he would be able to argue or prove causation of injury without it, since other causative factors had been raised as set forth in the affirmative defenses in the answer. The trial court dismissed the action.
Plaintiff appeals, claiming the trial court erroneously applied the law to find that expert testimony would be necessary to prove causation of damages, since this was a rear end collision and plaintiff believed lay witness testimony would have been sufficient to prove some of his injuries, such as emotional distress. Plaintiff also claims the trial court erred or abused its discretion in granting the motion to dismiss and/or refusing to continue the trial to allow other expert testimony to be presented, such as through cross_examination of the defense expert.
In response, defendant argues the trial court did not abuse its discretion in making those rulings because the court had the authority to hear a nonstatutory dismissal request and to dismiss the case under these circumstances. (Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall).) Court conclude the trial court did not abuse its discretion and there were reasonable justifications for each of the trial court's rulings. Accordingly, court affirm.

In September 2003, plaintiff, sued defendant for damages for personal injuries arising out of an automobile accident that occurred in September 2002. When the parties appeared for trial in November 2005, defendant sought dismissal on the basis that no expert medical testimony was available from plaintiff and plaintiff had not shown he would be able to argue or prove causation of injury without it, since other causative factors had been raised as set forth in the affirmative defenses in the answer. The trial court dismissed the action.
Plaintiff appeals, claiming the trial court erroneously applied the law to find that expert testimony would be necessary to prove causation of damages, since this was a rear end collision and plaintiff believed lay witness testimony would have been sufficient to prove some of his injuries, such as emotional distress. Plaintiff also claims the trial court erred or abused its discretion in granting the motion to dismiss and/or refusing to continue the trial to allow other expert testimony to be presented, such as through cross examination of the defense expert.
In response, defendant argues the trial court did not abuse its discretion in making those rulings because the court had the authority to hear a nonstatutory dismissal request and to dismiss the case under these circumstances. (Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall).) Court conclude the trial court did not abuse its discretion and there were reasonable justifications for each of the trial court's rulings. Accordingly, court affirm.

In September 2003, plaintiff, sued defendant for damages for personal injuries arising out of an automobile accident that occurred in September 2002. When the parties appeared for trial in November 2005, defendant sought dismissal on the basis that no expert medical testimony was available from plaintiff and plaintiff had not shown he would be able to argue or prove causation of injury without it, since other causative factors had been raised as set forth in the affirmative defenses in the answer. The trial court dismissed the action.
Plaintiff appeals, claiming the trial court erroneously applied the law to find that expert testimony would be necessary to prove causation of damages, since this was a rear_end collision and plaintiff believed lay witness testimony would have been sufficient to prove some of his injuries, such as emotional distress. Plaintiff also claims the trial court erred or abused its discretion in granting the motion to dismiss and/or refusing to continue the trial to allow other expert testimony to be presented, such as through cross_examination of the defense expert.
In response, defendant argues the trial court did not abuse its discretion in making those rulings because the court had the authority to hear a nonstatutory dismissal request and to dismiss the case under these circumstances. (Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall).) Court conclude the trial court did not abuse its discretion and there were reasonable justifications for each of the trial court's rulings. Accordingly, court affirm.