CA Unpub Decisions

After the court denied a motion to suppress evidence, defendant entered a negotiated guilty plea to sodomy of an intoxicated person (Pen. Code, § 286, subd. (i)). Appellant waived appeal from denial of the motion to suppress evidence and gave a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754.) The court sentenced him to prison for the three-year lower term. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).) Judgment affirmed.

Defendant, appeals from a judgment entered in favor of plaintiff, following a nonjury trial. In a statement of decision, the trial court concluded that defendant breached a real estate purchase and sale agreement with respondent by failing to close escrow by January 3, 2003, on the sale to plaintiff of a newly constructed home in Winchester. Escrow closed 20 days later, on January 23, and respondent rented the home to his stepdaughter.
Court reversed the judgment in favor of respondent.

Petitioner seeks writ review of orders terminating reunification services regarding her child, and referring the matter to a Welfare and Institutions Code section 366.26 hearing. Appellant contends she made substantive progress with the provisions of her case plan and she was not provided with reasonable reunification services. Court denies the petition.

A jury convicted defendant of two counts of assault with a deadly weapon. As to both counts, the jury found that defendant personally used a deadly weapon, an automobile. (Pen. Code, § 1192.7, subd. (c)(23).) The court sentenced appellant to prison for the three-year middle term on one count with a concurrent term on the second count.

Trial court found the telephone company had a prescriptive easement over the plaintiffs' land. The trial court also found an electric utility company, which had been granted an easement over the plaintiffs' land, had not unlawfully expanded its easement when it permitted the telephone company to place telephone lines on its poles. Court disagrees in part and accordingly reverses in part. In particular, the court found that the telephone company did not establish the existence of a prescriptive easement. However, in permitting the telephone company to use its poles, the electric company did not unlawfully expand its easement.

A minor and ward of the Sonoma County Juvenile Court admitted charges of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and witness intimidation. (Pen. Code, § 136.1, subd. (a)(1)). In another petition, the minor admitted a charge of conspiracy to commit assault with a deadly weapon. (Pen. Code, §§ 182, 245, subd. (a)(1).) On appeal, the minor contends that (1) the court abused its discretion in committing him to CYA; (2) remand is required for the court to exercise its discretion whether to impose less than the maximum period of confinement; and (3) the court miscalculated his maximum period of confinement. Court reject the minor's first contention, but agree with him as to the second and third.

Mother appealed from a juvenile court order terminating parental rights as to the child and denying a Welfare and Institutions Code section 388 petition. Court appointed counsel to represent mother in this appeal. Mother did not submit arguments to the court, therefore, she abandoned the appeal. Appeal dismissed

Defendant was convicted of burglary (count 1), assault with intent to commit rape (count 5), and two counts of false imprisonment (counts 6 and 7), with a true finding on a dangerous weapon allegation. (Pen. Code, §§ 459, 220, 236, 12022, subd. (b)(1).)[1] Appellant was sentenced to state prison for a term of seven years, eight months. Appellant appeals, contending his sentences on counts 1 and 5 (the burglary and assault) violate section 654 or, alternatively, that his sentences on counts 6 and 7 (the false imprisonments) should have been stayed. Court agree that appellant cannot be punished for all of the crimes charged, as does the Attorney General. Thus reverse and remand for resentencing without reaching appellant's alternative sentencing issue.

A medical malpractice action against medical doctor where plaintiff, who was a paraplegic before the procedure, suffered a torn rotator cuff and a fractured shoulder during a manipulation under an anesthesia procedure performed by a chiropractor, assisted by the medical doctor. Whether doctor had a duty to obtain plaintiff's informed consent, even though the procedure was going to be performed by the chiropractor, was a question of fact for the jury to determine. Trial court erred in concluding that, as a matter of law, there was insufficient evidence of causation for a jury to find in favor of plaintiff. A jury reasonably could determine that an adult paraplegic who was suffering problems with stiffness and flexibility, but was functional in his then current condition, who was seeing some improvement in his condition through physical therapy, who had suffered devastating damage from surgery in the past, and who was so concerned about the potential risks associated with the recommended procedure that he took his mother with him to question the medical doctor on the topic, would turn down the opportunity for the procedure if informed that it could result in a loss of his remaining mobility due to a torn rotator cuff or a fractured bone.

Where defendant was charged with three counts of conspiracy based on alleged efforts to smuggle drugs into prison, where defendant was inmate, and each count involved similar modus operandi, trial judge prejudicially erred by failing to give sua sponte instruction that would have required jurors to determine whether defendant's alleged efforts constituted a single conspiracy or separate conspiracies.
The court stated that a single conspiracy can have multiple objectives, as long as they all fall within the same plan.
Reversed and remanded.

In an earlier appeal by defendant, court issued an unpublished opinion affirming his convictions and instructing the trial court to hold a new sentencing hearing. The court held the sentencing hearing, and resentenced defendant. Defendant appeals. Appellant contends that the court erred in failing to stay, pursuant to Penal Code section 654, the punishment of one count of assault with a semiautomatic firearm. Appellant also contends that the imposition of an aggravated term on one count violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296. The court states that “under the multiple victim exception, multiple punishment for violent crimes against separate individuals is proper even when the crimes are part of an indivisible course of conduct.” No error is found because there was at least one victim of the carjacking that was not a victim of the assault. Court reject Appellant’s contentions, and affirms.

Appellant mother challenges the juvenile court's decision to terminate her parental rights and set adoption as the permanent plan for her three minor children. Mother contends substantial evidence does not support the juvenile court's finding that the Indian Child Welfare Act (ICWA) did not apply to the minors. After a careful review of the law and the record in this case, we conclude that the juvenile court's findings are supported by substantial evidence.

The court adjudged Appellant, a ward of the court, after Appellant admitted allegations charging him with possession of drug paraphernalia and tampering with a vehicle. The juvenile court ordered Appellant to serve 30 days on house arrest and attend substance abuse counseling. On appeal, Appellant contends the court erred when it denied his motion to suppress. Defense has the burden of raising the issue (illegal search and seizure) and the Prosecution has the burden of proving that it (warrantless search and seizure) was reasonable. There was no evidence to justify the detention. Court reverses.

Petitioner petitions this court for a writ of review to determine the lawfulness of a decision of the Workers' Compensation Appeals Board (WCAB) denying her claim for benefits based on insufficient evidence of an industrial injury. Petitioner claims that the evidence was not properly evaluated because the physicians had opposing medical opinions and unreasonable inferences were made by the Respondent. The court states that a relevant and considered opinion of one physician, though inconsistent, may constitute substantial evidence. Court denies the petition.