CA Unpub Decisions

Defendant and appellant Jovani Guillen appeals from his conviction, following entry of a plea of no contest, to one count of assault with a semiautomatic firearm. As part of the plea agreement, defendant also admitted having suffered a prior strike within the meaning of the “Three Strikes” law and admitted a gun use allegation. The court imposed an aggregate state prison term of 20 years. We affirm.

Defendant Anthony Jesus Saldana appeals from the judgment after his convictions for assault with a firearm, shooting at an inhabited dwelling, two counts of possession of a firearm by a felon, and violation of a criminal street gang injunction. We hold that the gang enhancement applied to the second count of possession of a firearm is not supported by substantial evidence and must be vacated. We otherwise affirm the judgment of conviction. In light of recent statutory amendments granting courts discretion to strike or dismiss firearm enhancements under Penal Code sections 12022.5 and 12022.53, however, we vacate the sentence and remand for resentencing. We also direct the trial court on remand to correct several other errors in sentencing and the abstract of judgment.

Alex Youngwoo Jae appeals his conviction by jury of felony driving under the influence of alcohol. (DUI; Veh. Code, § 23152, subd. (a).) In a bifurcated proceeding, the trial court found that appellant suffered a 1990 conviction for gross vehicular manslaughter while intoxicated (Pen. Code,
§ 191.5, subd. (a)) and that it was a prior strike. (Pen. Code, §§ 667, subd. (d); 1170.12, subd. (b).) The court denied probation and sentenced appellant to six years state prison. We affirm.

A jury convicted Mehmood S. Oomerjee of five counts of sexual penetration of a child under age 16 (Pen. Code § 289, subd. (i)) and three counts of lewd act on a child age 14 or 15 (§ 288, subd (c)(1)). The trial court sentenced Oomerjee to six years eight months in prison. We affirm.

Under California law, the trial judge in a criminal case must instruct the jury on all lesser-included offenses supported by substantial evidence. Defendant Jose Herrera-Ramos contends the court in this case should have instructed the jury on false imprisonment as a lesser-included offense of kidnapping because the jury could have concluded he did not move his victim a substantial distance. We hold that because the jury appears to have rejected that theory, any error was harmless. We affirm with directions to correct an error in the abstract of judgment.

Timothy Paul Knight appeals a judgment following conviction of assault with force likely to produce great bodily injury, and battery resulting in serious bodily injury, with findings that he personally inflicted great bodily injury, suffered a prior serious felony conviction, suffered two prior serious or violent felony strike convictions, and served three prior prison terms. (Pen. Code, §§ 245, subd. (a)(4), 243, subd. (d), 12022.7, subd. (a), 667, subd. (a)(1), 667, subds. (b)-(d), 1170.12, subds. (a)-(d), 667.5, subd. (b).) We affirm.

Timothy Alan Gilroy (Tim) and Julia Yoni Stone Gilroy had a long-term relationship, but they were never legally married. When the relationship ended, they sued each other to, in essence, settle their property rights. After a bench trial, the court awarded Julia the house the parties had lived in, immediate cash payments from Tim’s retirement accounts, and an additional $5,420 which had been previously awarded to Julia. Tim appeals, contending that the court should have divided assets according to the Family Code; that the court erred by ordering him to pay Julia from his retirement account; and that the $5,420 award was improper. We agree only that the court’s order regarding Tim’s retirement account was erroneous. Accordingly, we modify the judgment and affirm it as modified.

Plaintiff and appellant Mauro Pazienti appeals the trial court’s grant of summary judgment in favor of defendant and respondent Paula J. Whiteman, M.D., an emergency room physician at Cedars-Sinai Medical Center (Cedars-Sinai), on his claim for medical negligence. Pazienti claims Dr. Whiteman negligently failed to diagnose and treat him for an impending heart attack while he was her patient in the emergency department. Because plaintiff has demonstrated triable issues of material fact exist on the question of whether Dr. Whiteman breached the duty of care, and Dr. Whiteman failed to meet her initial burden of production to demonstrate the nonexistence of a material fact regarding proximate cause, we reverse.

Defendant and appellant Oscar Israel Duenas appeals his convictions for assault with a deadly weapon and making criminal threats. He contends the evidence was insufficient to support a gang enhancement, and in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), admission of a gang expert’s testimony violated his confrontation and due process rights. Both appellant and the People contend the trial court made sentencing errors. We conclude the trial court committed various sentencing errors, and accordingly reverse as to the sentence, and remand for resentencing. In all other respects, we affirm.

The Medical Board of California (the board) seeks a peremptory writ of mandate commanding the superior court to vacate its order and judgment setting aside the board’s order revoking the medical license of real party in interest, Alfred Eugene Adams, M.D. The parties have been notified that if circumstances warrant, this court may issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Having reviewed the letter from Adams dated December 18, 2017, stating his opposition to the petition and requesting additional time to submit a formal opposition, which was granted to January 5, 2018, and Adams having failed to submit any further opposition, and having considered the arguments made in the proceedings before the superior court, we conclude that a peremptory writ of mandate should be issued.

A.S. (Father) appeals a dispositional order made at the six-month review hearing in this dependency proceeding. He contends that the evidence does not support the juvenile court’s finding that he was offered reasonable reunification services and that the court erroneously based its ruling on his refusal to admit domestic violence. We shall affirm the order.

Appellant B.J. appeals from an April 3, 2017, dispositional order in which the juvenile court adjudged him a ward of the court, after he admitted to an allegation of disturbing the peace (Pen. Code, § 415), and placed him on probation. He contends the court abused its discretion by imposing as a condition of probation a requirement that he allow searches of electronic devices (electronic search condition). We agree with appellant that the electronic search condition should be stricken as it is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) . We modify the dispositional order accordingly, and in all other respects, we affirm.

This is the third time we are called upon to review a juvenile court order in this case involving L.C.B. who became a court dependent in 2014 when she was a year old.
In September 2015, we directed the juvenile court to set aside an order scheduling a hearing pursuant to Welfare and Institutions Code section 366.26 to consider terminating the parental rights of L.C.B.’s parents, Carmen C. and Andrew B., because there was insufficient evidence that this family was offered six months of reasonable reunification services. However, in November 2016, we refused to set aside another order scheduling a section 366.26 hearing because by that stage in the case, these parents had been afforded reasonable services and yet L.C.B. could not be safely returned to their home.
This appeal is from a December 2016 order terminating the parental rights of Carmen and Andrew and selecting adoption as L.C.B.’s permanent plan.

This is an appeal from judgment after the trial court revoked the formal probation of defendant Bernard Warren and sentenced him to nine years in state prison following his commission of several probation violations. Defendant was initially placed on probation as part of a negotiated disposition after pleading guilty to felony infliction of corporal injury resulting in a traumatic condition on his (now former) spouse, enhanced for inflicting great bodily injury under circumstances involving domestic violence. Defendant challenges the trial court’s imposition of upper terms for both his underlying offense and the great-bodily-injury enhancement following revocation of his probation as an abuse of discretion, as well as his trial attorney’s failure to object at sentencing as constitutionally ineffective assistance of counsel. We affirm.