CA Unpub Decisions

Appellants Geraldine and Mark Templo (the Templos) brought an action for declaratory relief against respondent State of California (State), claiming that a statute requiring litigants to pay a nonrefundable fee in order to secure a jury trial is unconstitutional. The trial court granted the State’s motion for judgment on the pleadings on the ground that the State is not a proper defendant to the cause of action. The Templos appeal, and contend the State is the proper defendant. We reject the contention and affirm the judgment.

Eugene D. Rutledge appeals the trial court’s finding that his prior conviction for federal bank robbery constituted a serious felony for purposes of the “Three Strikes” law (Pen. Code, §§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)). We affirm.

Michael Redell Smith, Jr. appeals his conviction, following a jury trial, of second degree murder. He argues (1) he was denied effective assistance of counsel in connection with evidence relating to his self-defense claim, (2) the jury was improperly instructed regarding the custodial status of witnesses, and (3) his sentence on a firearm enhancement should be remanded pursuant to recent legislation. We agree with the third contention, and otherwise affirm.

Appellants Melanesia Lewis (Ms. Lewis) and her husband, Charles Lewis, appeal the trial court’s grant of summary judgment in their medical malpractice suit in favor of respondent, Corey Long, M.D. (Dr. Long). Summary judgment was granted on grounds the Lewises knew Dr. Long’s identity, yet failed to name him as a defendant until after the statute of limitations had run. The Lewises contend summary judgment should have been denied because triable issues of material fact remain as to whether Dr. Long was an unknown defendant when the complaint was initially filed. The trial court found determinative that the Lewises sent Dr. Long a Code of Civil Procedure section 364 Notice of Intent to Sue (section 364 notice) and thus could not have been ignorant of his identity at the time of the original complaint, as required by section 474. We agree and therefore affirm the judgment.

This is our sixth opinion in this action. The appeal involves an effort by the Hogans to thwart execution of the judgment in their longstanding litigation. In 2009, respondents Clayton Engstrom, et al. (the Engstroms or the realtors), who are jointly and severally responsible for $65,000 of the Hogans’ damages, tendered that amount, plus accrued interest. The Hogans refused to accept it. The Engstroms deposited the funds in trust with the court, where they sat until the Hogans obtained their release in 2015. Although the Hogans received all of the damages they were entitled to from the realtors under the judgment, they refused to acknowledge satisfaction of judgment under Code of Civil Procedure section 724.010 et seq. The Engstroms made a motion to compel, which the court granted, awarding statutory damages to the Engstroms. The Hogans appeal. We affirm.

Benjamin Chase was convicted of multiple crimes arising from a home invasion burglary and sentenced to a term of three years in prison. He contends his trial attorney provided constitutionally ineffective representation when she failed to communicate his wish to accept a pre-trial plea offer, allowed the offer to lapse, and failed to apprise him of a second plea offer. We agree Chase was denied effective assistance of counsel and remand the case for further proceedings consistent with In re Alvernaz (1992) 2 Cal.4th 924, 944 (Alvernaz.)

Plaintiffs Melanesia Lewis (Ms. Lewis) and her husband Charles Lewis appeal from an order granting the motion of Dennis O’Connell and Abigail Goetz to quash service of a third amended complaint in this personal injury action. O’Connell and Goetz were physician assistants employed by Ms. Lewis’s physicians at the time of her treatment at Sutter Delta Medical Center. By the third amended complaint, the Lewises sought to name O’Connell and Goetz (collectively the PAs) well after the time the applicable statute of limitations would have run on claims against them, unless the amendment is deemed to relate back to the filing of the original complaint under Code of Civil Procedure section 474. We conclude it does not relate back. We therefore affirm.

This is our fifth opinion in this case, which arises out of Ronald and Victoria Hogan’s rescission of a May 2000 contract to purchase a home in Santa Rosa. In our first opinion, Hogan, et al. v. DeAngelis Construction, Inc., et al. (A117321, A118257, A120840, May 20, 2009) [nonpub. opn.] (Hogan I), we ruled that a portion of the damages award against the developers of the property was duplicative and instructed the trial court to strike that portion of the damages award. We also rejected the Hogans’ contention that the judgment did not require them to return the property, a provision we refer to as the return condition. (Hogan I, supra, at pp. 17, 22-23.)

Defendant Abel Juan Perez pleaded no contest to making a criminal threat (Pen. Code, § 422, subd. (a)) , false imprisonment by violence (§ 236), dissuading a witness (§ 136.1, subd. (a)(1)), and distributing an intimate image (§ 647, subd. (j)(4)(A)). The trial court suspended imposition of sentence and placed defendant on probation for three years.

Defendant David Harold Johnson appeals from a judgment of conviction entered after a jury found him guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) - count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) - count 2), and battery causing serious bodily injury (Pen. Code, §§ 242, 243, subd. (d) - count 3). The jury also found that defendant personally inflicted great bodily injury in the commission of count 3 (§§ 667, 1192.7). Defendant admitted the allegations that he had served four prior prison terms (§ 667.5, subd. (b)), had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), and had two prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced defendant to 20 years in state prison. On appeal, defendant contends that the trial court prejudicially erred when it instructed the jury that “serious bodily injury” and “great bodily injury” were “e

A jury convicted defendant Ryan John Gilbert of felony possession of methamphetamine for sale (Health & Saf. Code, § 11378). Defendant was sentenced to three years of formal probation and given credit for time served. Defendant appeals from the judgment. He contends his trial counsel rendered ineffective assistance in failing to object to the People’s expert opinion testimony. We conclude defendant was not prejudiced by his counsel’s failure to object. Accordingly, we affirm the judgment.

Appeals from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Appellant was convicted of multiple crimes, including two counts of attempted murder with attendant firearm enhancements, for shooting at a pair of rival gang members. On appeal, he contends the evidence supports only one count of attempted murder, not two, and the prosecution violated its duty to disclose exculpatory evidence. We reject theses contentions and affirm the judgment. However, we agree with appellant that the matter must be remanded to allow the trial court to decide whether to strike his firearm enhancements in the interest of justice.

Forensic investigators found Paul Anthony Stewart’s thumb and palm prints on the front passenger side window where the shooter aimed his gun at rival gang members inside a car before firing twice. (Pen. Code, §§ 187, subd. (a); 664, subd. (a); all further statutory references are to this code unless noted.) The jury convicted Stewart of attempted murder and found true enhancement allegations that Stewart personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)). The trial court denied Stewart’s new trial motion under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and sentenced him to 42 years to life in prison. Stewart contends the court erred in denying his new trial motion because the prosecutor should have disclosed transcripts of a defense investigator’s witness interviews regarding Stewart’s involvement in a prior gang-related vandalism incident.