CA Unpub Decisions

I.D. (mother) appeals from a November 2017 juvenile court order authorizing the San Francisco Human Services Agency (Agency) to sign consents for treatment for, and to release medical information regarding, her children (Welf. & Inst. Code, §§ 362, 369). We affirm.

Defendants Jose Duenas, Christopher Ramirez, Rafael Bravo, and Rafael Portales appeal their convictions for second degree murder and kidnapping, with a true finding that a firearm was used in the commission of the offenses. On appeal, they argue (1) the prosecution’s peremptory juror challenges violated Batson/Wheeler; (2) insufficient evidence supports an aiding and abetting theory as to Duenas and Portales; (3) the trial court erred in failing to instruct on the lesser included offense of voluntary manslaughter on a theory of sudden quarrel regarding Bravo and mistake of fact regarding Portales; (4) the prosecutor committed misconduct in rebuttal arguments; (5) the matter should be remanded for the presentation of mitigating evidence under People v. Franklin (2016) 63 Cal.4th 261; (6) there was cumulative error; and (7) the abstract of judgment requires correction. We affirm the judgment.

Appellant Terry James appeals from his conviction and sentence following a jury trial on one count of battery inflicting serious bodily injury and two no contest pleas to one count of elder abuse and one count of assault likely to produce great bodily injury. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

In 2016, a jury convicted James Frank Bowen of first degree murder, possession of firearm by a felon, and shooting at an occupied vehicle. The jury found true numerous enhancement allegations, including that during the murder, Bowen personally and intentionally discharged a firearm causing personal injury and death. The trial court sentenced Bowen to 107 years to life in prison, which included a mandatory enhancement under section 12022.53, subdivision (d).
On appeal, Bowen contends the court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Bowen also argues—and the Attorney General agrees—his case must be remanded to allow the court to exercise its discretion under section 12022.53, subdivision (h), and to conduct proceedings pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We accept the Attorney General’s concession and order a limited remand. In all other respects, we affirm the judgment.

Defendant Sergio Hernandez appeals a judgment sentencing him to four years eight months in state prison upon a plea of no contest to four felonies. He asserts two errors in connection with his sentencing: that the court failed to stay the sentence on one count under Penal Code section 654, and that the court wrongly considered irrelevant police reports at the sentencing hearing. There was no error and we shall therefore affirm the judgment.

Appellant Keith Wilkins was convicted of the second degree murder of Marche Daniels and the voluntary manslaughter of Frederick Glaspie. Appellant argues that his second degree murder conviction should be reversed because the trial court improperly precluded expert testimony that was necessary to his defense. We conclude the trial court properly excluded the proposed testimony on the victims’ gang affiliation and the character of the neighborhood and in any event, the testimony was cumulative and any error not prejudicial. Appellant also argues the prosecutor committed misconduct during the rebuttal argument by misstating the standard for heat of passion manslaughter. While the majority of the prosecutor’s closing argument and rebuttal set forth the proper standard, the prosecutor did make an incorrect statement of the law in rebuttal, but any error was corrected by the court’s instructions to the jury. We affirm.

Plaintiff Forest Preservation Society appeals from the judgment entered after the trial court denied its petition for writ of mandate (petition) challenging a timber harvesting plan proposed by real party in interest, Mendocino Redwood Company (MRC), as a violation of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), the Z’Berg-Nejedly Forest Practice Act of 1973 (Pub. Resources Code, § 4511 et seq.) (the Act), and the Forest Practice Rules (Cal. Code Regs., tit. 14, § 895 et seq.) (FP Rules). Plaintiff argues this timber harvesting plan is deficient and that defendant California Department of Forestry and Fire Protection (CDF or department) failed to proceed in the manner required by law in its assessment and subsequent approval of the plan’s cumulative impacts on greenhouse gas emissions. For the reasons set forth below, we affirm the judgment.

Defendant and cross-complainant Hanan Shiheiber appeals from a judgment of dismissal of her cross-complaint against plaintiff and cross-defendant JPMorgan Chase Bank, N.A. (Chase), following the court’s grant of a nonsuit on all Shiheiber’s causes of action. (Code Civ. Proc., § 581c.) Shiheiber was a borrower, who had a real estate loan with Chase that was secured by residential real property. She sued Chase after it foreclosed on the property, asserting causes of action for fraud, negligent misrepresentation, breach of the covenant of good faith, money had and received and unfair business practices. She alleged Chase had entered an oral agreement with her to forbear from foreclosing on her loan in exchange for a payment. Prior to trial, the court held a hearing under Evidence Code section 402, found the evidence did not show Chase acted with fraudulent intent and barred Shiheiber from offering evidence of the oral forbearance agreement at trial.

N.J.B. (N.B.) appeals from a disposition order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). (See Welf. & Inst. Code, §§ 602, 725, subd. (b), 731, subd. (a)(4), 800.) After N.B. admitted that he committed a forcible lewd and lascivious act, the juvenile court held a contested disposition hearing and adjudged N.B. a ward of the court. (Welf. & Inst. Code, §§ 602, 725, subd. (b), 731, subd. (a)(4), 800.) At the time of disposition, N.B. was 20 years old. The juvenile court rejected the probation department’s recommended disposition for probation supervision and outpatient sexual offender counseling and instead ordered a DJF commitment.

In 2002, petitioner Shedrick L. Henry was convicted of violating former Penal Code section 4501, which provided: “Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively.” (Stats. 1978, ch. 579, § 33, italics added.) At the time of the offense, petitioner was serving an indeterminate life sentence for murder.

K.R., now eight months old, was taken into protective custody shortly after birth. K.R.’s mother, K.P. (Mother), tested positive for methamphetamine and marijuana two days before K.R.’s birth. Mother pled nolo contendere to the allegations of the dependency petition at the jurisdiction hearing. Mother challenges the juvenile court’s disposition order removing K.R. from her custody.
We affirm. The juvenile court’s findings that K.R. would be in substantial danger if left in Mother’s custody and that there were no reasonable means of protecting K.R. were amply supported by evidence of Mother’s history of substance abuse, including her multiple relapses.

The court issued a domestic violence restraining order (DVRO) against appellant Kelly Georgia Martinez (Kelly) and in favor of respondent Jose Maria Martinez (Jose) and the parties’ two children and ordered Kelly to attend a batterers’ intervention program. The court also denied Kelly’s request for a DVRO against Jose. Kelly appeals from all three orders on various grounds, none of which are well taken. We affirm the orders.
Jose filed a motion to dismiss the appeal under the disentitlement doctrine on the grounds Kelly has twice been arrested for violating the DVRO resulting in two pending criminal cases. He also claims she has engaged in several other violations.

Plaintiffs Shafar Toranji and his wife Firoozeh Arghavani (collectively plaintiffs) sued defendants Chris Sungduk Lim, Justin Jinhyong Bae, and Best 4U, Inc. (collectively defendants). Plaintiffs alleged their real estate broker failed to timely communicate a third party’s competing and ultimately successful offer to purchase a home in Newport Coast (the property) which plaintiffs were interested in buying. Following a bench trial, the trial court entered judgment awarding damages against defendants for that omission. The damages award was based on the difference between the amount the court found was the property’s fair market value and what plaintiffs would have paid for the property.

This case arises out of a residential home foreclosure. Plaintiff Nita Chisdester (plaintiff) defaulted on her home mortgage and sued defendant Nationstar Mortgage (defendant) and Bank of America for promissory estoppel, intentional misrepresentation, negligent misrepresentation, and reformation. Plaintiff appeals from a judgment of dismissal after the trial court granted defendant’s motion for summary judgment. Finding no error, we affirm.