CA Unpub Decisions

This case involves neighbors in a retirement community who got into an argument about noise coming from appellant's yard. The argument escalated into appellant and one of the neighbors squirting water on each other with garden hoses. During the process, appellant threw a clay pot at one of the neighbors, hitting him in the arm and head. Appellant was convicted of misdemeanor assault (Pen. Code, § 240) as a lesser included offense of the charge of assault with a deadly weapon. Appellant was granted probation on various terms and conditions.

In 1999, appellant Mario Salvador Padilla was convicted of a murder he committed when sixteen years old, and was sentenced to a term of life without the possibility of parole (LWOP). The trial court denied his petition under Penal Code section 1170, subdivision (d)(2) (section 1170(d)(2)), which permits specified defendants sentenced to LWOP terms for murders they committed as juveniles to be resentenced. We reject his challenges to that ruling and affirm.

This case involves neighbors in a retirement community who got into an argument about noise coming from appellant's yard. The argument escalated into appellant and one of the neighbors squirting water on each other with garden hoses. During the process, appellant threw a clay pot at one of the neighbors, hitting him in the arm and head. Appellant was convicted of misdemeanor assault (Pen. Code, § 240) as a lesser included offense of the charge of assault with a deadly weapon. Appellant was granted probation on various terms and conditions.

A jury found defendant and appellant Justin Wayne Cole guilty of assault with a deadly weapon and felony vandalism. The court imposed a two-year prison term on the assault charge and a concurrent 16-month term on the vandalism charge. Defendant raises two claims of error: (1) the court erred by failing to sua sponte give a unanimity instruction; and (2) the sentence on the vandalism charge should have been stayed pursuant to Penal Code section 654.
We affirm.

Defendant tenant Kim Bang Ly entered into two commercial leases with plaintiff landlord Lazben Investment Co. After performing under the leases for 20 and 15 years, respectively, a dispute arose over calculation of the annual cost­ of-living (COLA) rent increases.
Lazben sued and Ly cross-complained. After a bench trial, the court found the parties’ consistent, 20-year course of conduct vis-à-vis the COLA provisions constituted implied modifications to the written leases and entered judgment in favor of Lazben. Ly timely appealed, raising a variety of issues. Substantial evidence supports the trial court’s factual finding of implied modifications. That issue is dispositive of this appeal, and we do not analyze Ly’s remaining contentions.

A jury found defendant and appellant Sergio Tamayo guilty of second degree murder and found true weapon and gang allegations. On appeal, Tamayo contends there was insufficient evidence of the specific intent prong of the gang allegation. We agree with that contention. However, we disagree with his other contentions regarding the admissibility of the victim’s statement identifying Tamayo and the trial court’s failure to instruct on voluntary manslaughter. Accordingly, we reverse the true finding on the gang allegation, as well as modify various sentencing errors, but otherwise affirm the judgment as modified.

Defendants and appellants Applied Underwriters Inc. (Applied Underwriters), Applied Underwriters Captive Risk Assurance Company, Inc (AUCRA) and California Insurance Company (CIC) (Collectively Applied) appeal the court's order denying their motions to compel arbitration and to stay the action of plaintiffs and respondents Ramar Production Services, Inc. and J.J.S.B., Inc. (collectively Ramar) based on inconvenient forum. They contend (1) California law did not apply to their agreements with Ramar; (2) Ramar had challenged the arbitration contract as a whole and not just the arbitration agreement's delegation clause, therefore, the arbitrator and not the court must decide the arbitrability issue; and (3) Nebraska law applies to the parties' agreement. Finally, appellants renew their evidentiary objection to Ramar's counsel's declaration.

Appellant Rebecca Arias (Rebecca) appeals from a judgment entered after a court trial. Because the record, which does not contain a complete reporter’s transcript, is inadequate to assess her contentions, we affirm the judgment.

Clark E. Smith, M.D., a psychiatrist, was medical director at Sharp McDonald Center, a chemical dependency recovery hospital. After his two-year contract term ended and the contract was not renewed, he filed a complaint with the California Department of Fair Employment and Housing, which issued him a right to sue letter. In his lawsuit, he alleged two separate retaliation claims against Sharp Healthcare, Sharp Memorial Hospital and Sharp Mesa Vista Hospital (collectively "Sharp Healthcare"), one arising under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), and another under Health and Safety Code section 1278.5.

Bruce Roy Greene is temporarily committed to a state hospital for expert examination as to whether he is competent to stand trial. He has not yet had a preliminary examination on the criminal complaint filed against him. He perfected a timely appeal from the 13-page order denying his petition for a writ of mandate directing that a preliminary examination be conducted during his commitment, before his competency examination is concluded.
Defendant’s appointed counsel has filed a brief in which she advised that she found no arguable issues to present, and, in accordance with People v. Wende (1979) 25 Cal.3d 436, requested this court conduct an independent review of the record to determine if there are any arguable issues that require briefing. Appointed counsel advised Greene he was entitled to file a supplemental brief, but he elected not to do so.

A jury found defendant Michael Dale Bottenfield guilty of false imprisonment (Pen. Code, § 236) and willful infliction of corporal injury resulting in a traumatic condition upon a person with whom he has, or previously had, a dating relationship (id., § 273.5, subd. (a)). The jury also found true the allegations he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e). In a bifurcated proceeding, the trial court found true the allegations he had a prior serious felony conviction (id., § 667, subd. (a)) that qualified as a strike under the three strikes law (id., §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to an aggregate term of 14 years in state prison.

Appellant David Anthony Gomez appeals a judgment entered upon his plea of no contest to possession of a nunchaku (Pen. Code, § 22010) and his admission that he had served three prior prison terms. (§ 667.5, subd. (b).) His appellate counsel has raised no issues and asks this court to independently review the record to determine whether there are any sentencing or other post-plea issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to personally file a supplemental brief, but he has not done so. We have reviewed the record, found no arguable issues, and therefore affirm the order.

Defendant Willie Earl Lyons appeals an order denying his petitions to reduce four felony drug and theft convictions to misdemeanors under Penal Code section 1170.18, a provision of Proposition 47. The trial court denied the petitions because, at the time of the hearing on the petitions, Lyons had been convicted of (but not yet sentenced for) the crime of rape of an unconscious person (§ 261, subd. (a)(4)), an offense that the court concluded made Lyons ineligible for reduction of his felony drug and theft convictions. (See § 1170.18, subd. (i) [Proposition 47 sentence-reduction not available to persons who have “one or more prior convictions” for an offense requiring sex offender registration under § 290, subd. (c)]; § 290, subd. (c) [sex offender registration required for persons convicted of specified offenses, including rape of an unconscious person under § 261, subd. (a)(4)].)

Defendant Robert Churich appeals from the trial court’s judgment of conviction after jury trial for a number of offenses stemming from his admitted attack on his elderly mother in October 2016. Defendant’s court-appointed counsel has filed a brief that does not raise any legal issues. He requests this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues for our consideration and affirm the trial court’s order.