CA Unpub Decisions

A jury convicted defendant Israel Gutierrez of forcible rape (Pen. Code, § 261, subd. (a)(2)) and making a criminal threat (§ 422, subd. (a)). The trial court sentenced defendant to eight years eight months in state prison. On appeal, defendant argues it was an abuse of discretion to admit his jail telephone conversations into evidence. We find no abuse of discretion. Accordingly, we affirm the judgment.

Defendant and appellant Fadi Haddad appeals from his conviction, after jury trial, of two counts of raping his ex-wife by duress (Pen. Code, § 261, subd. (a)(2)) and three counts of molesting his step-daughter (Pen. Code, § 288, subd. (a)). On appeal, he argues: (1) his counsel rendered ineffective assistance by failing to argue that his threats to his ex-wife did not constitute duress as a matter of law; and (2) the trial court erred in denying his motion to sever the counts pertaining to his step-daughter from the counts pertaining to his ex-wife. We disagree and affirm. However, we order the abstract of judgment modified to properly reflect the sentence imposed.

Defendant and appellant Christopher Julian Castro appeals from his conviction by jury of assault by means of force likely to produce great bodily injury. He contends it was error for the trial court to instruct on mutual combat because there was no evidence supporting it, and that the court failed to discharge its duty to clarify the law regarding mutual combat when the jury requested an explanation.
We affirm.

Laevin Meikel Weatherspoon (appellant) was charged with the December 5, 2013 murder of Wanda Threadgill, with a further allegation that he used a deadly weapon, a kitchen knife, during the offense. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)). Appellant denied all allegations. During the three and a half years between his arrest and the start of trial, appellant’s case suffered various delays and disruptions due to persistent questions about appellant’s mental competency to stand trial, and his misconduct both within and outside the courtroom. Defense counsel twice declared a doubt as to appellant’s competency, suspending the proceedings, and appellant was hospitalized and subjected to multiple competency evaluations by at least eight physician experts.

In a 2010 medical malpractice action, Lee Ann Morgan (plaintiff) alleged she suffered severe injuries during a 2009 spinal surgery performed by the defendant surgeons. The trial court entered summary judgment for the surgeons, and plaintiff’s subsequent appeal was dismissed. Six years later, in 2016, plaintiff filed the present action against the same surgeons, seeking damages for the same injuries she allegedly suffered during the same 2009 spinal surgery. The surgeons demurred to the second action on res judicata and statute of limitations grounds, and the trial court sustained the demurrer without leave to amend. We find no error, and thus we affirm.

A jury convicted defendant and appellant Nicholas Anthony Munoz of shooting at an occupied motor vehicle and two counts of premeditated attempted murder, with firearm and gang enhancements. Munoz appeals, contending: (1) there was insufficient evidence to support the jury’s finding that the attempted murders were willful, premeditated, and deliberate; (2) the trial court committed instructional error; and (3) the matter must be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Penal Code section 12022.53, subdivision (h). We affirm Munoz’s convictions, but vacate his sentence and remand the matter to allow the trial court to exercise its discretion and determine whether to strike or dismiss the firearm enhancements.

As a condition of probation, the trial court ordered Pedro Sandoval Flores (Flores) to stay away from places where drug users, buyers or sellers congregate. On appeal, he contends that the probation condition is vague and overbroad. Because we agree, we modify the order and, as modified, affirm the judgment.

Defendant and appellant Jose Pepe Mitchell was charged with criminal conspiracy, three counts of second degree robbery and three counts of attempted second degree robbery. The jury acquitted him on one of the robbery counts but otherwise convicted him as charged. Defendant appeals, arguing the trial court erred in denying his motion for mistrial based on juror misconduct. Defendant also contends that none of the six counts on which he was convicted is supported by substantial evidence. We affirm.

A jury found Joaquin Esteban Urena (Urena) guilty of multiple counts of robbery and found true gun enhancements. Urena contends that his convictions must be reversed because there was insufficient evidence to identify him as one of the robbers. We disagree with this contention. However, we remand the matter for reconsideration of Urena’s sentence under Senate Bill No. 620 (2017–2018 Reg. Sess.). We otherwise affirm the judgment of conviction.

Defendant and appellant Florence Andongella appeals from a judgment, following a bench trial, quieting title in a home in favor of plaintiff and respondent Daniel Weber. A quitclaim deed had been recorded, purporting to transfer partial title to Andongella. The court concluded the quitclaim deed was a forgery which Andongella had fraudulently orchestrated. On that basis, the court found that Andongella had unclean hands in the transaction, which defeated any claim she may have to the property. On appeal, Andongella attempts to reargue the evidence. In accordance with the appropriate standard of appellate review, we conclude the trial court’s judgment was well-supported, and therefore affirm.

Khan Law Office, Amman A. Khan; Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers, for Plaintiff and Respondent.
The parties in this case effectively agree they were involved in “settlement” communications to resolve a dispute. The issue is whether those communications constituted prelitigation settlement communications protected by Code of Civil Procedure section 425.16, the anti-SLAPP statute. That question in large part reduces, on the facts here, to whether an attorney for one side in the dispute who seeks to resolve it by (among other things) demanding a legal release for his clients could make such a demand even while believing the other party was not seriously contemplating litigation.

The Contractors’ State License Board (the Board) seeks a writ of mandate to compel respondent superior court to sustain the Board’s demurrer to an action brought by real party in interest, Black Diamond Electric, Inc. (BDE) seeking a declaratory judgment.
The action seeks judicial construction of statutory terms at issue in disciplinary proceedings initiated against BDE by the Board. The Board filed a demurrer, arguing that BDE was required to exhaust its administrative remedies before filing suit. The superior court overruled the demurrer, concluding that BDE was not required to exhaust administrative remedies because the action sought a declaration on issues of statutory interpretation.
We hold that the superior court erred in overruling the Board’s demurrer. The general rule is that a party must exhaust an available administrative remedy before resorting to the courts. While this rule is subject to exceptions, none applies here.

A.W., mother of Christian, petitions for extraordinary review of an order in which the juvenile court terminated her reunification services following the 12-month review and scheduled a Welfare and Institutions Code section 336.26 hearing to determine the child’s permanent placement. We granted mother’s request to temporarily stay the section 366.26 hearing, pending a ruling on the petition.

Masala James appeals the denial of his petition for resentencing under Penal Code section 1170.18, subdivision (f), part of Proposition 47, the Safe Neighborhoods and Schools Act of 2014. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.