CA Unpub Decisions

Appellant Teresa Sue Plumley appeals from the judgment in which a jury convicted her of first degree burglary with a person present, a felony (Pen. Code, § 459) and petty theft with a prior theft-related conviction and a prior strike conviction, a felony (Pen. Code, §§ 666, subd. (b), 484, subd. (a)). The jury also found true the allegations that appellant had suffered prior convictions.
On the date scheduled for sentencing, appellant submitted a letter to the trial court, which was deemed to be a request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Appellant was upset that her lawyer had not called certain witnesses. Defense counsel explained that the potential witnesses had been interviewed and were determined to be unhelpful to appellant’s case, so the tactical decision was made not to call them to testify. The trial court denied the Marsden motion.
The trial court sentenced appellant to seven years in state prison, consisting of the low term of two years for the burglary conviction, plus five years for one prior conviction (Pen. Code, § 667, subd. (a)(1)) (the trial court struck the true findings on the other prior convictions). A two-year sentence on the petty theft conviction was stayed pursuant to Penal Code section 654. Appellant received 145 days of custody credit, consisting of 127 actual days plus 18 days of conduct credit.

Devin L. Thomas (Thomas) appeals from a 2012 order finding him in violation of his probation and lifting the stay on a state prison sentence which was imposed but suspended in 2004 after he entered a plea of no contest to three counts of assault with intent to commit rape (Pen. Code, § 220). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), raising no issues. On April 30, 2013, we notified Thomas of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he wants us to consider. The deadline was extended to July 31, 2013. Thomas filed a timely letter in which he raised issues related to the 2004 case rather than the 2012 order which he challenges in his appeal. We have reviewed the entire record. Having found no arguable issues, we affirm the judgment.

Andrew Moelleken, M.D., OSF Medical Group of California, Inc., and Carrillo Surgery Center, Inc., appeal from the judgment entered following a jury verdict in favor of respondents Santa Barbara Cottage Hospital, Cottage Health System, Thomas H. Jones, M.D., E. Scott Conner, M.D., Richard Chung M.D., and Alois Zauner, M.D. (respondents). Appellants brought an antitrust action against respondents. Appellants claimed that respondents had unlawfully agreed to restrain competition by excluding orthopedic spine surgeons, including Dr. Moelleken, from performing spinal surgery on emergency and trauma patients at Santa Barbara Cottage Hospital (the hospital).
Appellants contend that the trial court erred in instructing the jury and denying their motion for a new trial. The motion was based on the following grounds: (1) the trial court had erroneously refused to permit appellants to call rebuttal witnesses, (2) two jurors had committed prejudicial misconduct during deliberations, and (3) respondents' counsel had committed prejudicial misconduct during opening statement. We affirm.

Plaintiff and cross-defendant Ronald D. Keller appeals from a judgment in favor of defendant and cross-complainant Lyle R. Keller. We reverse with directions.

Glen Foster Green (appellant) appeals from a judgment, following a jury trial, committing him to the State Department of Mental Health (DMH) for an indeterminate period as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1] He contends the judgment must be reversed for a variety of reasons, including (1) the evidence was insufficient to support a current diagnosis of pedophilia; (2) the court erred in refusing to give an instruction quantifying the risk of reoffense necessary to support a commitment; (3) the court erred by failing to instruct the jury sua sponte that an SVP commitment is for an indefinite time period; (4) the protocol governing his SVP evaluations is invalid; (5) commitment without the prospect of effective treatment violates his right to due process; and (6) the SVPA is an unconstitutional ex post facto law, improperly shifts the burden of proof, and violates his right to equal protection. We reject appellant’s contentions and affirm the judgment.

Jeff D. Nguyen was convicted, by a jury, of the first degree murder (Pen. Code, § 187, subd. (a))[1] of his wife, Mai Banh. The jury also found “true” allegations that Nguyen personally used a deadly weapon (§ 12022, subd. (b)(1)). Nguyen appeals, contending that his murder conviction should be reversed because: (1) the trial court erroneously failed to properly answer the jury’s question regarding premeditation during deliberations; and (2) his trial counsel was ineffective for failing to object to the court’s response to the jury and to the prosecutor’s misstatement of the law on provocation during closing argument. We affirm.

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Deleted by editor 10/02/2013

A decision regarding lewd act upon a child under 14 years of age.

A decision regarding a lewd act upon a child under 14 years of age .

Defendant Robert Tanyo Durrand appeals from a judgment entered after his guilty pleas to several felonies and misdemeanors. His sole argument on appeal is that his trial counsel was ineffective for failing to object to the imposition of restitution fines imposed by the trial court pursuant to Penal Code section 1202.4, subdivision (b),[1] and the matching parole revocation fine imposed under section 1202.45. In a separate petition for writ of habeas corpus, which we ordered considered with this appeal, defendant additionally argues that his trial counsel was ineffective for failing to investigate and properly advise him of potential defenses to his alleged prior strike conviction stemming from a Florida burglary offense, which he admitted as part of his plea agreement.
For the reasons set forth below, we find no merit in defendant’s contention that his trial counsel rendered ineffective assistance of counsel for failing to object to the imposition of the restitution fine and the matching parole revocation fine. However, we find that defendant has stated a prima facie case for relief in his accompanying petition for writ of habeas corpus, and therefore issue an order to show cause returnable to the superior court.

Jorge A. Lopez was found guilty of second degree murder after he crushed Marcus Nieto’s chest with a concrete block as he lay defenseless on the ground. The trial court sentenced Lopez to 16 years to life in prison. On appeal, Lopez maintains the trial court abused its discretion by denying him probation, finding the case was not “unusual” under Penal Code section 1203, subdivision (e)(1).[1] We affirm the judgment.

The court adjudged appellant, Enrique O., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging him with brandishing a weapon (count 1/Pen. Code, § 417, subd. (a)(1)) and providing false information to a police officer (count 2/Pen. Code, § 148.9, subd. (a)).
On September 24, 2012, the court aggregated time from a previous petition, set appellant’s maximum term of confinement at 10 months, and committed him to the Juvenile Justice Center for 60 days.
On appeal, appellant contends the evidence is insufficient to sustain the court’s finding that he provided false information to a police officer. We affirm.

After a bench trial, the probate court granted guardianship of minor, A.N., to her maternal grandparents over her father’s objection. She was six years old at the time. The court subsequently acknowledged that it relied on inadmissible hearsay and did not believe there had been “a fair hearing.” The court purported to grant the father’s request for “reconsideration” (Code Civ. Proc., § 1008) of the guardianship order. The court ordered another hearing at which the parties were permitted to call witnesses who did not testify at the initial trial. After this second hearing, the court declined to alter its prior order granting guardianship. Father appeals from the initial order granting guardianship after the first trial, and two postjudgment orders regarding attorney fees.
We conclude that the admission of improper evidence at the initial trial was prejudicial. We further conclude that the court’s order granting “reconsideration” was in fact an extrajurisdictional order for a new trial. We therefore reverse the order granting guardianship.
We reject father’s attacks on the postjudgment attorney fees orders.