CA Unpub Decisions

Plaintiff Kevin R. Schrubb is a prisoner who sued various employees of the California Department of Corrections and Rehabilitation (CDCR) for allegedly interfering with his right to file a timely habeas corpus petition challenging the legality of his confinement. On appeal from a judgment of dismissal, Schrubb contends the trial court erred in sustaining the defendants’ demurrer without leave to amend.
Because there has been no determination that Schrubb’s confinement is illegal, his complaint is barred by Government Code section 845.4. Further, he is collaterally estopped from pursuing his interference claim, which has already been rejected by a federal court that addressed whether the delay in filing Schrubb’s habeas petition was caused by extraordinary circumstances beyond Schrubb’s control. Accordingly, we shall affirm the judgment of dismissal.

Willie M. Clay II (Clay) killed the man who had killed Clay’s teenage son three years earlier. Clay claimed he killed in self-defense because he believed his own life was in danger. Indeed, by many accounts, the man he killed was an extremely violent gang member who had threatened to kill Clay either personally or through a hitman. The trial judge instructed on imperfect self-defense, but not on perfect self-defense, because Clay, without immediate provocation, approached the man from the rear and shot him in the back after lying in wait for him. Then, when the man fell, Clay fired three more bullets into the back of his neck and head. The jury found Clay guilty of first degree special circumstance murder, and he was sentenced to life in prison without possibility of parole, plus 25 years to life imposed consecutively under Penal Code section 12022.53, subdivision (d).

These two appeals are from (1) an October 18, 2016 order modifying spousal support (case No. H044217), and (2) a May 12, 2017 order denying motion to quash earnings assignment order (case No. H044783).

The People appeal from an order granting a Penal Code section 995 motion with respect to a torture-murder special circumstance allegation. We affirm.

Robert Mabee (Husband) and Jacqueline Burns (Daughter), in their individual capacities and as the successors-in-interest of Martha Mabee (Wife), sued Honeyflower Holdings, LLC, doing business as Arlington Gardens Care Center (Arlington). Husband and Daughter brought five causes of action: (1) elder abuse or neglect, (2) wrongful death, (3) breach of contract, (4) regulatory violations (Health & Saf. Code §§ 1430, 1424.5), and (5) negligent infliction of emotional distress. Arlington petitioned the trial court for an order compelling arbitration. (Code Civ. Proc., § 281.2.) The trial court denied Arlington’s petition. Arlington contends the trial court erred. We dismiss the appeal.

Appellant S.A. (mother) appeals from a juvenile court’s order terminating parental rights as to her children, L.J. and D.W. (the children). She claims that the court erred in not applying the beneficial parental relationship exception. (Welf. & Inst. Code , § 366.26, subd. (c)(1)(B)(i).) Appellant D.J., who is L.J.’s father (father), filed a separate brief joining in mother’s argument. We affirm.

C.P. (Mother) has a history with abusing drugs, issues with domestic violence, and an extensive history with Child Protective Services, resulting in the removal of her three children. Mother appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. On appeal, Mother argues: (1) the juvenile court erred in finding the children were adoptable; (2) the court erred in failing to find statutory exceptions to termination of parental rights; (3) the court abused its discretion by ordering adoption as the permanent plan rather than legal guardianship; (4) the court abused its discretion in failing to grant a continuance to allow the paternal grandmother time to retain counsel to file a guardianship petition; (5) her appointed appellate counsel was ineffective for failing to recognize any of the aforementioned grounds for appeal. For the reasons explained below, we reject Mother’s contentions and affirm the judgment.

Defendant Lonnie J. Philpot appeals from a judgment of conviction and sentence, entered after a jury found him guilty of one count of attempted murder and two counts of assault with a firearm, stemming from an incident in which Philpot shot at a parked vehicle occupied by two people at close range.
In challenging his convictions on appeal, Philpot raises two issues with respect to the court's handling of a prospective juror who expressed his view that the prosecution would not be bringing the case to trial unless there was strong evidence against the defendant, which was based on the prospective juror's history in law enforcement. Philpot first contends that the trial court erred in failing to declare a mistrial after the other prospective jurors heard Prospective Juror Number One make these comments. Philpot also contends that the prospective juror's comments violated his right to confront witnesses against him.

A jury found Ellington Llellyn McCoy guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), possessing a stolen vehicle (Pen. Code, § 496d) (count 2), and driving without a license (Veh. Code, § 12500, subd. (a)) (count 3). McCoy subsequently admitted having suffered a prior strike conviction in another case, and the trial court found that he violated his probation in the other case by committing the offenses charged in this case. The trial court sentenced McCoy to six years in prison for the probation violation. In this case, the court imposed a concurrent term of four years on count 1, stayed the execution of sentence on count 2 pursuant to section 654, and imposed a sentence of 180 days with credit for time served on count 3.
On appeal, McCoy claims that the trial court erred in declining McCoy's request to instruct the jury regarding the defense of mistake of fact.

A jury convicted Mariano Gastelum Guerrero of being a felon in possession of a firearm; willful evasion of a peace officer; assault with a firearm; first degree burglary; and making a criminal threat. The jury also found true the allegations that Guerrero was out on bail when he committed counts 1 and 2, he personally used a firearm in the commission of counts 3, 4, and 5, and he personally discharged a firearm in the commission of counts 3 and 4 .In a separate trial, the court found two serious felony prior allegations and two strike prior allegations true.

Defendant Abelino Gonzalez Nunez was convicted of attempted first degree murder and eight other charges, in addition to several firearm enhancements. Sentenced to state prison, defendant appeals, contending insufficient evidence supports the jury’s finding that he acted with premeditation and deliberation and that the trial court erred in admitting an unidentified declarant’s statement under the spontaneous statement exception to the hearsay rule. He further contends his case must be remanded for the trial court to exercise its discretion as to whether to strike the firearm enhancement imposed pursuant to Penal Code section 12022.53, subdivision (b). We disagree with defendant’s first two contentions but agree with his last and remand for the trial court to exercise its newly granted discretion to determine whether it is appropriate to strike the firearm enhancement imposed in this case.

Following the denial of his motion to suppress, defendant Michael David Mattson pleaded no contest to misdemeanor felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); statutory section references that follow are to the Penal Code unless otherwise stated) in case No. 16F3657, and was found in violation of his probation in case No. 15F1243. The trial court executed the previously imposed but suspended seven-year sentence in case No. 15F1243. The court also imposed a concurrent one-year sentence in case No. 16F3657.
On appeal, defendant contends the judgment must be reversed because the trial court erred in denying his motion to suppress.

Defendant Anthony Dipesa appeals his conviction for first degree burglary. He argues two nonpattern jury instructions lowered the prosecution’s burden of proof, thereby creating structural errors in defendant’s trial that warrant reversal. We caution against using these instructions in future criminal trials. Here, we conclude any error was harmless and affirm the judgment.

In this case, defendants Tomasi Latu and Sione Makaafi (who are brothers) appeal from their respective convictions stemming from a robbery.
On appeal, Latu contends the evidence was insufficient to establish he used a firearm during the robbery. (Pen. Code, § 12022.53.) He also contends the trial court erred in allowing additional argument after the jury reported they were deadlocked on the firearm enhancements. In supplemental briefing, Latu argues he is entitled to relief under statutory amendments providing the trial courts with discretion to strike section 12022.53 firearm enhancements. Since Latu’s conviction is not yet final, we will remand his case to the trial court to exercise its discretion to strike the firearm enhancements. As to his other contentions, we conclude there was sufficient evidence to support the use of a firearm during the robbery and the trial court did not abuse its discretion in ordering additional argument. The judgment against Latu is affirme