CA Unpub Decisions

A jury convicted John Wilburn of second degree murder and assault on a child with force likely to produce great bodily injury, resulting in the child’s death (informally known as child abuse homicide). Wilburn presents a claim of instructional error, arguing the jury was misinformed that the latter offense is a general intent crime. Against the weight of authority on this issue, he contends that a conviction under Penal Code section 273ab requires proof of a specific intent to cause injury. We are obligated to follow California Supreme Court precedent that holds otherwise. Accordingly, we affirm the judgment.

Ramiro Enriquez, Rene Gutierrez, Jr., and Gabriel Ramos were jointly tried and convicted of active participation in a criminal street gang under Penal Code section 186.22, subdivision (a). Enriquez and Gutierrez were also convicted of attempted murder and assault with a firearm, and those crimes were found to be gang related within the meaning of section 186.22, subdivision (b). In a prior opinion, we affirmed the judgments of conviction in full. (People v. Enriquez (Jan. 30, 2015, F065288, F065481, F065984) [nonpub. opn.] (Enriquez).) The matter returns to us following a reversal by the California Supreme Court for structural error, namely, the erroneous denial of a “Batson/Wheeler motion.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.) The high court’s disposition states: “We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.” (Id. at p. 1175.)

Defendant and appellant, R.V. (Mother), is the mother of five girls: B.B., born in 1999, R.E., born in 2000, D.D., born in 2004, S.D., born in 2013, and D.F., born in 2015. Defendant and appellant, R.D. (Father), is the father of two of the girls, D.D. and S.D. B.B., R.E., and D.F. have different fathers, and none of these fathers are parties to this appeal. Only the three older girls, R.E., B.B., and D.D., are subjects of this appeal.
Mother and Father each appeal from the March 21, 2017, dispositional orders for the three older girls. Mother claims insufficient evidence supports the jurisdictional findings for the three older girls, which were made pursuant to subdivisions (b) and (j) of section 300 of the Welfare and Institutions Code. Father claims insufficient evidence supports the jurisdictional findings for his child, D.D., the youngest of the three older girls.

Pursuant to a plea agreement, defendant and appellant Anthony Dean Wright pled guilty to theft from an elder or dependent adult. (Pen. Code, § 368, subd. (d).) The parties stipulated that the police reports provided a factual basis for the plea. In accordance with the agreement, a trial court sentenced defendant to two years in state prison.
Defendant filed a petition for resentencing, pursuant to section 1170.18 (Proposition 47). The court found him ineligible for relief and denied the petition. Defendant appealed from the denial of his petition, arguing that the failure to apply Proposition 47 to his conviction violated his equal protection rights. In our original opinion, we agreed with the trial court’s decision.

This is a case about the meaning of a professional liability insurance policy. The policy in question was issued by petitioner Admiral Insurance Company (Admiral) to the real party in interest, A Perfect Match, Incorporated (Perfect Match), a company that "match[es] surrogates and egg donors with infertile families." On the first page of the policy Admiral promised to provide coverage for certain claims made during the policy period arising from a "professional incident, . . . provided that prior to the inception date of the policy, no insured knew, nor could have reasonably foreseen, that the professional incident might result in a claim." In other words, Admiral was excluding coverage for potential claims that Perfect Match knew or reasonably should have known about, but failed to disclose.

Following what he alleges was the wrongful termination of his employment, Bema Bonsu, M.D. (Plaintiff), sued Rady Children's Hospital-San Diego (Rady), The Regents of the University of California (Regents), Children's Specialists of San Diego (CSSD) and others. In one of the causes of action, Plaintiff alleges that, during the process that preceded the termination, Rady, Regents and CSSD (together, Defendants) defamed him. The trial court denied Defendants' special motions to strike the defamation cause of action under California's anti SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The court ruled that, because Defendants did not meet their burden of showing that the allegedly defamatory statements were made "in connection with a public issue" (§ 425.16, subd. (b)), the claims resulting from the statements were not subject to being stricken under the anti SLAPP statute.

In 2014, Anna Gagliardi contracted with All Seasons Window & Patios (ASWP) to have a patio installed. She was dissatisfied with her experience with ASWP and its owner Larry Hays (together, Hays), and in early 2015 she posted negative reviews of her business dealing with Hays and ASWP on two web sites (Yelp and the Better Business Bureau (BBB)), and also filed a complaint against Hays with the Contractors State License Board.Hays filed this action seeking damages from Gagliardi for defamation. Gagliardi moved to dismiss the complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The trial court granted the motion in part, but also denied the motion in part, and this appeal challenges the order insofar as it failed to grant the motion in its entirety.

In exchange for a stipulated sentence, defendant pled no contest to attempting to manufacture concentrated marijuana. As specified in his plea form, “defendant attempted to manufacture [butane honey oil] by possessing the parts required for a lab.”
Defendant said on his plea form that his plea was pursuant to People v. West (1970) 3 Cal.3d 595. He also admitted to violating probation.
Carrying out the terms of the plea, the trial court suspended imposition of sentence and placed defendant on four years’ formal probation. It ordered him to serve 180 days in jail and awarded five days of credit (3 actual; 2 conduct). The court also imposed various fines and fees. As to the probation violation, the court reinstated probation on the terms previously imposed. Defendant timely appealed. His request for a certificate of probable cause was denied.

Defendant Ivan Spencer Wilson pleaded no contest to burglary and admitted a prior strike allegation. He was sentenced to eight years in prison. Appointed counsel 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.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

Appellant, K.P., was the subject of a wardship petition under Welfare and Institutions Code section 602 for hitting his neighbor with a baseball bat during a heated confrontation. (Welf. & Inst. Code, § 602, subd. (a).) Shortly before the jurisdictional hearing, K.P. and his mother requested a continuance in order to hire private counsel and also requested a Marsden hearing to relieve his appointed counsel. The court denied the Marsden motion and the continuance. Following a contested jurisdictional hearing, the court sustained the petition finding K.P. committed an assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The juvenile court adjudged K.P. a ward of the court and committed him to probation with a juvenile hall term of 90 days, with 60 days suspended pending successful completion of the Reconnect Program. Among other terms and conditions, the court ordered K.P. to have no contact with the neighbor he assaulted.

Plaintiff Christine Mendiola worked with mentally ill residents in a locked facility at defendant Crestwood Behavioral Health, Inc. (Crestwood). One of the residents violently assaulted her. Mendiola brought suit against Crestwood for assault, battery, fraudulent inducement and misrepresentation, unlawful business practices (Bus. & Prof. Code, § 17200), and other claims. She appeals from a judgment of dismissal, contending her fraud allegations are not subject to the exclusive remedy of workers’ compensation. She further contends the trial court erred in granting summary adjudication on her assault claim, because she presented a triable issue as to whether Crestwood ratified the resident’s conduct. We find the alleged misrepresentations and concealments about workplace safety fall within the exclusive remedy of workers’ compensation and Mendiola presented no facts to support a finding of ratification. We shall affirm.

Plaintiff Kristen Walker contended defendant Regents of the University of California (University) discriminated against her based on pregnancy when a professor at the University of California, Davis, campus (UC Davis) decided not to hire her for a postdoctoral fellowship. The trial court granted summary judgment in favor of the University, and we affirm the judgment. Walker failed to introduce sufficient evidence from which we could infer the University’s reasons for not hiring her were pretextual.

Appellant Dr. Robert P. Fettgather (Fettgather) appeals from an order of the trial court denying his petition for writ of administrative mandamus. His petition challenges the revocation of his license to practice psychology by Respondent California Board of Psychology (the Board). The trial court denied Fettgather’s petition on the ground that the only relevant inquiry before the Board was whether Fettgather failed to comply with an order for an examination under Business and Professions Code section 820; undesignated section references will be to this code. Further, the trial court found that “[t]he evidence in the record unquestionably establishes that petitioner failed to submit to the examination that had been ordered in this case.” Fettgather appeals arguing he should be permitted to challenge the merits underlying a section 820 order before he is required to comply with that order.

C.J. (mother) and Kevin M. (father) appeal from the findings and order terminating their parental rights over their son, M.B., under Welfare and Institutions Code section 366.26. In separately filed briefs, mother and father contend the court erred in finding inapplicable the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.