CA Unpub Decisions

We are again called upon to address when a sentencing court may require a convicted defendant to submit to warrantless searches of electronic devices as a condition of mandatory supervision or probation, understanding that a similar issue is currently pending before the California Supreme Court in In re Ricardo P., review granted February 17, 2016, S230923, and numerous other cases. In this case, defendant Ronnie Jones failed to object to imposition of the condition in the trial court and for that reason has waived the issue on appeal. But even if the issue was not waived, the record demonstrates that Jones has an extensive criminal history, including numerous theft and drug offenses.

This case raises issues concerning the legal obligations imposed on health care providers when a patient's health care directives conflict with the providers' opinions that the requested care would be medically ineffective and may cause harm. Elizabeth Alexander, a 70-year-old woman suffering from end-stage terminal pancreatic cancer, died four days after she was transferred from a skilled nursing facility to Scripps Memorial Hospital La Jolla (Scripps). Elizabeth had an advance health care directive stating she wanted all measures taken to prolong her life. Defendants declined to provide Elizabeth with certain advanced life support measures on the basis that such measures would have been ineffective and caused her to suffer further harm.

The trial court found Gerardo Flores guilty of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). At the sentencing hearing, the court reduced the offense to a misdemeanor under Penal Code section 17, subdivision (b)(3), suspended imposition of sentence, and placed Flores on summary probation for three years.
Flores appeals, contending the court erred by failing to reduce the offense to misdemeanor petty theft under Penal Code section 490.2, which the California Supreme Court recently held applies to the theft form of a Vehicle Code section 10851, subdivision (a), violation. (People v. Page (2017) 3 Cal.5th 1175, 1183.) We conclude the court did not err because the record shows Flores was not convicted of the theft form of a Vehicle Code section 10851, subdivision (a), violation. We, therefore, affirm the judgment.

Appointed counsel for defendant Patrick Wayne Jeremiah asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

A jury found defendant Daniel Harrison Mota guilty of transporting methamphetamine for sale, and the trial court imposed the upper term. On appeal, defendant contends the trial court erred in not instructing the jury on simple possession as a lesser included offense. He also challenges the imposition of the upper term, arguing he did not commit his crime with planning, sophistication, or professionalism. We will order a corrected abstract of judgment and otherwise affirm.

Defendant Alamar Cyril Houston appeals from numerous convictions arising from his hitting four people while driving a stolen vehicle. He contends (1) the trial court violated his right to present a defense when it excluded three witnesses; (2) defense counsel rendered ineffective assistance by not making a Romero request to strike a strike prior; and (3) the court erred when it stayed, instead of struck, a prior prison term enhancement that was based on the strike prior. Except to remand for the trial court to strike the prior prison term enhancement, we affirm the judgment.

Defendant Jeffrey Taylor pleaded guilty to second degree robbery (Pen. Code, § 211) and voluntary manslaughter (§ 192, subd. (a)). Defendant also admitted firearm enhancements. (§ 12022.53, subds. (b), (c), (e)(1).)
On appeal, defendant contends the trial court erred in denying his motion to withdraw his plea. Defendant also argues the trial court erred in failing to order, sua sponte, a hearing to determine whether defendant was competent to plead guilty. Defendant also contends his sentence is illegal and that he received ineffective assistance of counsel. We shall affirm.

Appointed counsel for defendant Gary Allen has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We ordered supplemental briefing regarding the trial court’s apportionment of credits; the parties agree that the abstract of judgment should be corrected to reflect the proper division of credits between defendant’s two cases.
Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment and order the abstract corrected.

Defendant Richard Lee Betz appeals his conviction following a jury trial for committing 18 counts of lewd and lascivious acts upon a child under the age of 14. On appeal, he contends the trial court erred when it failed to instruct the prospective jurors not to conduct independent research and compounded the error by failing to replace the jury panel when a prospective juror made a statement based on his independent research; erred by instructing the jury that it could consider expert testimony as evidence that the complaining witness was telling the truth; and that these two errors were separately and cumulatively prejudicial. Defendant also contends his trial counsel rendered ineffective assistance when he requested the trial court to provide a “firecracker” instruction to the jury after they indicated they could not agree on a finding of guilt as to a single charged count.

Defendant Evan MacMillan appeals from the trial court’s denial of his Penal Code section 1170.18 petition for resentencing on his conviction for grand theft of a firearm. (§ 487, subd. (d).) He contends the trial court erred in finding his crime ineligible for relief because theft of a firearm worth $950 or less was a misdemeanor at the time he filed his petition. Agreeing with defendant’s arguments, we will reverse the trial court’s order and remand for further proceedings on defendant’s petition for resentencing.

Defendant Vanna Sisounthone robbed three convenience stores while wearing a clown mask. A jury convicted him of multiple counts of robbery and other crimes and the trial court sentenced him to more than 58 years in state prison. We conclude that, as to the last contention, the trial court failed to obtain defendant’s waiver of a jury trial as to the new prior conviction allegation, and that the true finding and associated one-year term on the second alleged prior conviction must be stricken. The other contentions asserted in appellant’s opening brief are without merit.
After this court filed its original opinion in this matter, defendant petitioned for review in the California Supreme Court. The California Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of new legislation granting trial courts discretion to strike firearm enhancements. We will remand the matter to permit the trial cour

Defendant Justice Gaddis was sentenced to 14 years in prison after a jury found him guilty of assault with a firearm and being a felon in possession of a firearm. The jury also found defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). On appeal, he contends: (1) there was insufficient evidence to support imposing a gang enhancement on his conviction of being a felon in possession of a firearm, (2) the trial court abused its discretion when it sentenced him to the upper prison term for assault with a firearm and a consecutive upper term for a firearm enhancement, and (3) remand is necessary for the court to exercise its discretion as to whether to strike his firearm enhancement under the recent amendment to section 12022.5. We disagree that insufficient evidence supported the gang enhancement and disagree that the court abused its discretion when sentencing him to the upper term for assault with a firearm.

The original or subsequent owners of 45 single family homes in Rancho Murieta South, Blue Oak Estates and The Crest developments in Rancho Murieta (Developments) sued individuals and entities associated with the development and construction of their houses for strict liability, strict product liability, negligence and nuisance. Plaintiffs alleged defendants Wallace Kuhl & Associates, Inc. (WKA), and Doug Kuhl caused damage to plaintiffs’ properties by, among other things, failing to perform adequate soil compaction tests and failing to prepare for expansive soil conditions.
The trial court granted summary judgment and/or summary adjudication in favor of WKA and against certain plaintiffs and entered judgment in 2012.

Petitioner Douglas Bagby brought a legal malpractice action against his former attorney, real party in interest Joseph Davis, arising from Davis’ representation of Bagby in a tort action. The parties disagreed whether their contingent fee agreement was subject to arbitration. After Davis failed to respond to the complaint, Bagby requested entry of Davis’ default. Davis sought and received relief from default. (Code Civ. Proc., § 473, subd. (b).) Davis also successfully petitioned to compel arbitration of the malpractice action.
Bagby petitioned this court for a writ of mandate. We issued an alternative writ ordering the trial court to either (1) vacate its orders granting Davis’ relief from default and his petition to compel arbitration, and enter new and different orders, or (2) show cause why this court should not issue a peremptory writ of mandate ordering the trial court to do so on the ground that Bagby had demonstrated his entitlement to relief.