CA Unpub Decisions

Petitioner, Chander Shekher, was driving on a six-lane section of State Route 99 in a Peterbilt tractor and trailer owned by petitioner, Rajas Transport Company, LLC, and operated by petitioner, A-1 Transport, LLC.The mattress became wedged under the truck and caught fire. Shekher pulled over to the side of the highway, got out of the cab, and ran away from the burning truck. Shortly thereafter, the truck’s gas tank exploded. Traffic behind the fire slowed and stopped. Plaintiffs and real parties in interest, Jehremy D. Phillips and Lucas A. Phillips (RPI), were in the last stopped vehicle in the middle lane approximately two-tenths of a mile from the burning truck. A Jeep Cherokee driven by Robert Schill ran into the back of the Phillips’ vehicle, seriously injuring Jehremy Phillips.
RPI sued Schill and petitioners for negligence.

Defendant Troy Lance Boutelle was convicted of several robberies and one petty theft he committed in fast food stores. On appeal, he contends: (1) the trial court erred pursuant to Penal Code section 654 by sentencing him to concurrent terms for the robbery and petty theft of two employees of the same store, (2) the trial court erred in calculating his presentence credits, and (3) the record contains clerical errors in the minute order and abstract of judgment that require correction. The People concede the first two issues, but contend we should remand to the trial court for clarification of the third. We order the petty theft sentence stayed, award one more actual day of credit and two more days of conduct credit, and remand to the trial court for clarification of restitution fines. In all other respects, we affirm.

Plaintiff appealed after the trial court sustained defendants’ demurrer to his second amended complaint without leave to amend and dismissed his action. Plaintiff challenges the ruling on the demurrer and various other prejudgment orders. We conclude the demurrer was properly sustained, plaintiff has not demonstrated the trial court abused its discretion by denying him leave to amend again, and plaintiff has not established any error in the other orders. Accordingly, we affirm the judgment.

An employer appeals from the denial of its petition for a writ of mandate. The petition sought a writ directing the California Occupational Safety and Health Appeals Board (Board) to vacate its order upholding the citation issued against the employer by State of California Department of Industrial Relations, Division of Occupational Safety and Health (Division), for violation of a workplace safety regulation. In this appeal, the employer contends substantial evidence did not support the Board’s finding that it violated the regulation. We conclude substantial evidence supports the finding of violation, and the trial court did not err in denying the writ petition.

Several alleged Norteños were driving around in a black Dodge Caliber. One of them later told a prosecutor the group was looking for the “opposition” – meaning Sureños. The Caliber pulled up behind a parked vehicle whose occupant was Hispanic with a shaved head and wearing a blue shirt. One of the Caliber’s occupants exited, approached the other vehicle, and shot its occupant to death. It turned out the victim, Pedro Nunez, was a Walmart employee on his lunch break, and apparently not a Sureño.
Defendant was convicted of the murder, along with other crimes and allegations, and now raises several issues, many of which concern gang evidence. We reject all of his contentions and affirm the judgment.

Defendant was convicted of inflicting corporal injury on Shannon, a cohabitant. Shannon’s son, Anthony, told police that he had heard his mother yell, “Stop Victor, you’re going to kill me.” At trial, Shannon refused to testify, and Anthony claimed he did not remember what was said during the incident. An audio recording of Anthony’s statement to police, in which he conveyed Shannon’s utterance to defendant, was played for the jury. Defendant contends this violated his right to confrontation under the Sixth Amendment. We disagree. The confrontation clause was satisfied with respect to Anthony because he was “confronted” (i.e., available for cross-examination at trial); and the confrontation clause is inapplicable to Shannon because she was not a “witness[] against” defendant (i.e., her statement was not testimonial).

This case arose from a sudden shooting in front of the Ink Bar in Bakersfield at approximately 1:00 a.m. on April 13, 2014. The shooting occurred during a seemingly spontaneous physical altercation that lasted, in total, about 30 or 40 seconds. The altercation was between Robert Graham (the defendant) and Troy Stewart, both of whom were milling around outside the Ink Bar. As the altercation erupted between them, with punches thrown on both sides, Graham fired three or four shots. Most, if not all the shots, were fired into the ground. Stewart suffered a bullet wound, apparently from a ricocheting bullet. In addition, a bystander, Halim Johnson, suffered a relatively minor injury, either from a bullet fragment or a fragment of the concrete pavement that shattered from shots fired into the ground. Graham was convicted of assault with a firearm on Stewart as well as assault with a firearm on Johnson.

The sole contention raised by defendant and appellant O.L. (Mother) is that San Bernardino County Department of Children and Family Services (CFS) failed to provide accurate notice under the Indian Child Welfare Act (ICWA). CFS agrees with Mother.

Defendant and appellant Daniel Morris Gideon pled guilty to resisting an officer. (Pen. Code, § 69.) Pursuant to the plea agreement, a trial court placed him on probation for a period of three years, under specified conditions. On appeal, defendant contends that the probation condition requiring that he reside at a residence approved by his probation officer infringes on his constitutional rights to travel and freedom of association. We agree and modify this condition. In all other respects, we affirm the judgment.

Defendant and appellant Buddie Lee Ables entered a plea of no contest to the charge of receiving a stolen vehicle. (Pen. Code, § 496d, subd. (a).) The trial court sentenced defendant to county prison for a term of three years, suspended 18 months of the sentence, and granted 18 months of mandatory supervision. Defendant contends the trial court erred by denying his motion to suppress evidence. (Pen. Code, § 1538.5.) We affirm the judgment.

Plaintiff and appellant Martha Medina appeals after a jury trial where the jury found in favor of defendant and respondent Costco Wholesale Corporation (Costco). Medina sued Costco based on negligence and premises liability causes of action claiming she slipped and fell on something slippery and wet outside Costco’s warehouse in Rancho Cucamonga (the Warehouse), injuring herself. Medina sought to call Brad Avrit as an expert witness to testify that shopping carts and shoes tracked contaminants such as oil and dust from the parking lot to the area where she fell and caused her to slip and fall.
Costco brought its “Motion in Limine For Order Limiting Trial Testimony [of] Plaintiff’s Retained Expert Brad Avrit” (MIL) prior to trial, seeking to exclude the testimony because it was based on speculation and was not a proper subject of expert testimony. The trial court granted the MIL and the matter proceeded to trial without Avrit’s testimony.

A jury convicted William Oliver Sumpter, Jr., of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and made true findings that he (1) personally used a firearm in the commission of the offense (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a)) and (2) inflicted great bodily injury causing the victim to suffer permanent paralysis (§ 12022.7, subd. (b)). On appeal, Sumpter claims that the jury's finding of premeditation and deliberation is not supported by sufficient evidence, the court erred in instructing the jury on imperfect self-defense, and his counsel was ineffective for failing to request a pinpoint jury instruction regarding the effect of provocation on premeditation and deliberation (see CALCRIM No. 522). We conclude Sumpter has failed to establish reversible error and accordingly affirm.

Maternal grandparents J.B. and C.B. appeal the juvenile court's order denying their relative placement request under Welfare and Institutions Code section 361.3 to obtain custody of their grandson, N.C. J.B. and C.B. assert insufficient evidence supports the court's stated reasons for denying placement and, therefore, its order constitutes an abuse of discretion. Respondent San Diego County Health and Human Services Agency (Agency), which also supported placement with J.B. and C.B. in the court below, likewise contends the juvenile court's order constitutes an abuse of discretion. Minor's appellate counsel responds that the juvenile court's finding that N.C.'s continued placement with the de facto parents was in his best interest and was supported by the evidence. We agree and, accordingly, affirm the court's order.

Defendant Kevin Robinson pulled out his gun and pointed it at his acquaintance while in the acquaintance's bedroom, and waved the gun towards two other individuals in the room. The witnesses reported that defendant also fired one bullet during this incident. No one was injured.
Based on this event, defendant was charged with: (1) one count of attempted murder; (2) three counts of assault with a firearm (one for each individual in the room); and (3) two counts of attempted robbery. The jury found defendant not guilty of the attempted murder and attempted robbery charges. But the jury found defendant guilty of the three counts of assault with a firearm, and found true the allegations that he personally used a firearm in committing each of these assaults. Defendant admitted prior strike and prison term allegations.