CA Unpub Decisions

Appellant Christopher Allan Wilson appeals from the denial of his petition for resentencing under Penal Code section 1170.18 seeking modification of the sentence imposed on his prior conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that his conviction under Vehicle Code section 10851 is eligible for resentencing under Proposition 47 and that the denial of his request violates principles of equal protection. For the reasons set forth below, we reverse and remand for further proceedings.

California Capital Insurance Company (California Capital) defended its insureds in a personal injury action filed against them. It rejected the personal injury plaintiff’s settlement demands. The judgment entered against the insureds far exceeded policy limits. California Capital entered into a postjudgment settlement with the claimant and made the agreed payment to satisfy the judgment against the insureds. California Capital then sued Scottsdale Indemnity Company (Scottsdale), alleging Scottsdale’s insurance policy, issued to another defendant in the underlying personal injury action, also covered California Capital’s insureds as additional insureds. California Capital sought to recover all or a portion of the amounts it paid to defend and indemnify its insureds in the underlying action.

This matter is before us on a petition for writ of mandate or prohibition filed by David Lucero challenging the trial court's decision on March 12, 2018, that it would not suspend the proceedings and appoint a mental health expert to evaluate whether Lucero is currently mentally competent to stand trial. The trial court previously found that Lucero was mentally competent to stand trial in 2016 based on a psychiatrist's evaluation performed at that time. We conclude that Lucero presented new evidence to the trial court that constituted substantial evidence he is not currently mentally competent to stand trial. Accordingly, the trial court was required, as a matter of law, to suspend the proceedings and order that a mental health expert perform an evaluation of Lucero's mental competency pursuant to Penal Code sections 1368 and 1369, and if necessary hold a hearing on Lucero's competency.

A jury convicted defendant Cuong Huu Nguyen of one felony count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and he admitted to two prison priors for the same offense. The trial court sentenced him to five years' imprisonment and imposed a restitution fine of $1,500. On appeal, Nguyen contends we should reduce his felony conviction to a misdemeanor because he maintains Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47), reclassified section 10851 as a form of petty theft when the value of the stolen vehicle does not exceed $950, and because the People failed to prove that the value of the vehicle he took exceeded this threshold. He further contends the trial court abused its discretion in denying him a "split sentence," and in imposing a restitution fine of $1,500.

Pamela Lacher and Roslyn Lacher (the Lachers) appeal from a postjudgment order compelling additional interrogatory responses and imposing a constructive trust and accounting requirements in connection with a prior assignment order entered in favor of East County Investigations and its owners, Jon and Sue Lane (collectively East County). We deny East County's motion to dismiss the appeal, affirm the order as modified, and grant in part East County's motion for sanctions and attorney fees.

Plaintiff Abbas Azhdari appeals from a judgment entered after the trial court granted summary judgment in favor of defendants, Dr. Henry Ferreyra, M.D. (Ferreyra) and Dr. Christopher W. Heichel, M.D. (Heichel). Azhdari had filed an action against the defendants for medical malpractice related to surgical procedures performed on Azhdari's eyes.
The trial court granted summary judgment on the ground that the defendants established that no triable issue of fact remains with respect to the standard of care, given that Azhdari failed to submit an expert declaration in response to the expert declarations the defendants submitted stating that they had met the standard of care throughout their treatment of Azhdari. We agree that the defendants were entitled to summary judgment on this ground, and we therefore affirm.

A jury convicted Salvador Garcia of attempted voluntary manslaughter and assault with a semiautomatic firearm. (Pen. Code, §§ 664, 192, subd. (a), 245, subd. (b).) The jury also found that Salvador personally used a firearm during the commission of the offenses. (§ 12022.5, subd. (a).) On appeal, Salvador contends that the trial court erred in failing to answer two of the jury's questions during deliberations. In supplemental briefing, Salvador raised another issue: whether the case should be remanded to permit the trial court to exercise its discretion on whether to strike or dismiss his firearm enhancement under a statutory amendment that became effective on January 1, 2018. (§ 12022.5, subd. (c).)

In this consolidated case, the jury found defendant guilty of 29 felonies arising from three different incidents. In the first and third incidents, the police stopped defendant’s vehicle and found drugs and weapons. In the second incident, the major focus at trial, the jury found defendant tied up, tortured or beat, shot at, threatened, and robbed three men who were working for him at a marijuana grow. The trial court sentenced defendant to 98 years four months to life in prison.
On appeal, defendant raises claims of instructional error, prosecutorial misconduct, and ineffective assistance of counsel. He contends the trial court erred in denying his timely motion to discharge counsel and violated Penal Code section 654 by imposing unstayed terms on both the torture and robbery charges. We find no prejudicial error as to these claims.

This appeal originated as a review pursuant to People v. Wende (1979) 25 Cal.3d 436, after defendant Kevin William Gordon entered a negotiated plea of no contest to leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a); count 1) and admitted a strike prior (1989 kidnapping; Pen. Code, §§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts (possession of marijuana for sale, transportation of marijuana) and four prior prison terms with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
The trial court sentenced defendant to state prison for the upper term of three years, doubled to six years for the strike prior, and awarded 428 days of presentence custody credits. The court ordered defendant to pay $7,689 in victim restitution and various other fines, fees, and assessments. Defendant appealed.

Petitioner Juan A. (Father), father of four children -- Dylan, Jade, Juan and Stacy R. -- seeks review of the orders made at the review hearing held under Welfare and Institutions Code section 366.25 denying his request for legal custody of the children, terminating reunification services, and setting a hearing to consider termination of parental rights under Welfare and Institutions Code section 366.26. Father, who had been deported to Mexico, wished to have the children live with his brother’s family in Southern California once custody reverted to him. We conclude the court’s finding that returning the children to the physical custody of Father would create a substantial risk of detriment to the children’s safety, protection, or physical or emotional well-being cannot be sustained, as it was based entirely on Father’s deportation and the lack of recent unmonitored visitation.

Plaintiff Judy Randle sued her insurance broker, defendant Hebson Insurance Agency, Inc., for professional negligence in connection with a policy insuring the life of her ex-husband. Plaintiff’s negligence claim is based on the broker’s alleged failure to advise her, after her divorce, that it was necessary to change the ownership of the policy to ensure that she would remain the sole beneficiary of the policy. Under the undisputed material facts here, we see no legal basis on which to find the broker owed plaintiff a duty to provide such advice. We affirm the trial court’s grant of summary judgment in favor of the broker.

Defendants contend the trial court erred in denying their special motion to strike because Abboud’s lawsuit arose out of their protected activity. We find no error and affirm.

Defendant James Howard appeals from the judgment after a jury trial in which he was convicted of the premeditated murder of his live-in girlfriend, Sharilit Matthews. The victim’s body was discovered eight days after the murder, lying on the bed in her apartment with her throat slit. During the time between the murder and the discovery of the body, defendant visited with friends, contacted other women to arrange sexual liaisons, smoked a lot of marijuana, attended at least one party, and visited the apartment on several occasions (apparently undeterred by Matthews’s decomposing body) to gather Matthews’s possessions in order to pawn them.

In these consolidated juvenile dependency proceedings, D.F., mother of S.P. and S.D., appeals from September 28, 2017 orders (one as to each child), entered after a dispositional hearing on Welfare and Institutions Code section 387 supplemental petitions, in which the juvenile court, on termination of a guardianship of the children, placed the children in foster care and denied mother’s request for reunification services. D.F. also petitions for extraordinary writ review of March 8, 2018 orders (one as to each child), entered after the six-month status review, in which the juvenile court scheduled a hearing pursuant to section 366.26 to determine the children’s permanent placement. Pending our resolution of the petition, mother requests a temporary stay of the section 366.26 hearing set for June 14, 2018. In her briefs and petition, mother limits her arguments to the court’s visitation directives. On our own motion, we consolidated the appeal and writ proceeding.