CA Unpub Decisions

In 2011, we reversed a jury verdict in favor of Katherine Barrese after concluding that the trial court failed to apply the correct standard in evaluating a motion for new trial. (Barrese v. Murray (2011) 198 Cal.App.4th 494 (Barrese I).) We directed the trial court to rehear the motion for new trial and decide the case based on the principles discussed in Barrese I. We awarded appellate costs to Jacques Gaston Murray, the prevailing party on appeal. After the court granted Murray’s motion for new trial the court ordered Barrese to pay Murray’s substantial appellate costs. Barrese appeals from the judgment awarding costs. We affirm.

Plaintiffs and appellants Elissa Jhunjhnuwala, Jason Nowland, Brandy Ascough, and Brian Ascough[1] appeal from a judgment and post-judgment order following a jury trial in favor of defendant and respondent James F. Carillo, M.D., in this consolidated action for medical malpractice and wrongful death. Plaintiffs contend the trial court should have granted their motion for a new trial on the grounds of attorney and juror misconduct. Specifically, plaintiffs contend Carillo’s attorney committed misconduct during closing argument by arguing the following: 1) plaintiffs did not owe any money for their mother’s medical expenses, which had been paid by Medi-Cal and Oregon’s Medicaid program; 2) inflammatory photos were displayed in violation of a trial court order; 3) a record of vital sign trends was available from the monitor used during the operation, although none was produced in discovery; 4) nurses are “truth-tellers”; 5) misrepresentations as to the evidence; and 6) maligning opposing counsel’s professionalism. In addition, plaintiffs contend the trial court abused its discretion by excluding evidence from juror declarations, and the juror misconduct included: 1) concealing bias in voir dire; 2) prejudging the case; 3) expressing anti-gay prejudice; 4) acting to protect Carillo’s reputation; and 5) threatening physical violence during deliberations.
We conclude the remarks during closing argument, which suggested plaintiffs did not owe any money for their mother’s medical expenses because the expenses were paid by Medi-Cal and Oregon’s Medicaid program, directly violated California law and the trial court’s express order, and thus, constituted misconduct. Statements made by jurors during deliberations were erroneously excluded in connection with the motion for a new trial. Therefore, we reverse the order denying the motion for a new trial with directions.

Plaintiff and appellant Thuy Chu, on behalf of herself and as guardian ad litem for her minor son, appeals from a judgment following a jury trial in favor of defendants and respondents ABC Development Enterprises, DSC Laser and Skin Care Center, Inc., and Mt. Hawley Insurance Company, in this action arising out of the death of her husband Phi Nong. Chu contends: 1) the trial court erred by granting summary adjudication of a premises liability cause of action in favor of ABC and DSC; 2) the trial court erred in permitting Mt. Hawley Insurance Company to appear for Pinewave; 3) the trial court should have granted a motion for judgment on the pleadings on Mt. Hawley’s complaint-in-intervention; 4) the trial court erred by admitting the declaration of Mark Sanders; 5) the trial court erred by excluding evidence of Cal-OSHA regulations (see Lab. Code, § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal–OSHA)]), economic damages, and settlement payees; 6) the trial court erred by denying her requested instructions on direct liability in special risk cases, nondelegable duty, and negligence per se; and 7) there is no substantial evidence to support the findings that Pinewave, ABC, and DSC were not negligent.
We conclude the record is inadequate to review Chu’s contention concerning the summary adjudication ruling without a reporter’s transcript of the hearing. The trial court did not abuse its discretion in permitting Mt. Hawley to intervene and appear in the name of its insured at trial. We find no prejudicial evidentiary or instructional errors, and there is substantial evidence to support the judgment. Therefore, we affirm.

Appellant Mark Allen Melthratter shot Nathan Graunstadt several times with a semiautomatic pistol. At trial, appellant claimed he shot Graunstadt in self-defense. A jury convicted appellant of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and the trial court sentenced him to state prison.
On appeal, appellant contends the court erred by: (1) striking evidence of his knowledge of Graunstadt’s “reputation for dangerousness;” (2) excluding three of Graunstadt’s prior violent acts; and (3) allowing an “unqualified ‘expert’ to testify on medical matters outside his area of expertise.”
We affirm.

Appellants Andy’s BP, Inc. and Andy Saberi appeal from an order discharging a peremptory writ of mandate entered against respondent City of San Jose (City). Appellants contend that they were deprived of their due process rights when the trial court issued an order discharging the peremptory writ of mandate without conducting a hearing. Since appellants have failed to establish prejudice, we affirm the order.

Defendant Adrian Castaneda Ruiz pleaded no contest to felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of burglary tools (Pen. Code, § 466). The trial court suspended sentence and placed defendant on three years formal probation, subject to various terms and conditions. Defendant appealed, arguing that the trial court failed to determine his ability to pay prior to imposing certain fees, that his probation condition forbidding association with “gangs” is unconstitutionally vague, and that his probation condition prohibiting possession of firearms lacks a knowledge requirement.
We modify the clerk’s minute order to reflect the $864 fee for the preparation of the probation report and the $81 fee for the cost of supervised probation as orally pronounced by the trial court. We also modify the probation condition prohibiting association with gangs to specify that for the purposes of the condition the word “gang” means “criminal street gang” as defined in Penal Code section 186.22, subdivisions (e) and (f). In all other respects, the judgment is affirmed.

Brittany Y. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e))[1] terminating her reunification services and setting a section 366.26 hearing as to her one-year-old son Zachary. Brittany contends the juvenile court erred in finding she was provided reasonable reunification services and in allowing the testimony of her minor cousin. We deny the petition.

Defendant Michael Timothy Kilpatrick II stands convicted, following a jury trial, of two counts of robbery involving the personal use of a firearm. (Pen. Code,[1] §§ 212.5, subd. (c), 12022.53, subd. (b).) Sentenced to a total of 12 years in prison and ordered to pay various fees, fines, and assessments, he now appeals, raising claims of insufficient evidence and instructional error. We affirm.

A jury convicted defendant Michael Jason Fisher of being a felon in possession of a firearm. (Former Pen. Code, § 12021, subd. (a)(1).)[1] He admitted a prior prison term enhancement (§ 667.5, subd. (b)), and was sentenced to three years in prison. On appeal, he claims the trial court erred by denying his motion for acquittal and by overruling his objections to purportedly argumentative questions by the prosecutor. We affirm.

In anticipation of a sexual experience, on the evening of June 15, 2011, appellant Sabrina Renee Robinson, convinced her boyfriend Jason Barnet to allow her to handcuff his wrists and ankles. Once Barnet was restrained, appellant told him that she had discovered his infidelity. Appellant hit Barnet several times and burned him with hot candle wax. She armed herself with a loaded shotgun, threatened to kill him and hit him with the gun butt. She got some knives from the kitchen and stabbed Barnet. She threatened to cut him into pieces and dump his body on a friend’s property. Barnet eventually escaped from the house and hid, naked, in a nearby eucalyptus grove until the police arrived.
Robinson was convicted after jury trial of assault with a firearm (count 1), assault with a deadly weapon and by means of force likely to produce great bodily injury (count 2), making a criminal threat (count 3), false imprisonment (count 4) and petty theft (count 5). (Pen. Code, §§ 245, subd. (a)(1), (2), 422, 236, 484, subd. (a).)[1] The jury found true enhancement allegations that appellant personally used a firearm during the commission of counts 1, 3 and 4 and personally used a deadly and dangerous weapon during the commission of counts 3 and 4. (§§ 12022.5, subd. (a)(1), 12022, subd. (b)(1).) She was sentenced to an aggregate term of 12 years’ imprisonment.
Appellant argues the prosecutor engaged in misconduct. She also contends that the court erred during sentencing by failing to stay imposition of punishment on counts 3 and 4 and by ordering the sentences to run consecutively. None of these arguments is convincing. The judgment will be affirmed.

Appellant Jimmy Barnell Goffner was convicted after jury trial of possessing cocaine base and marijuana for purpose of sale (counts 1 and 3) and of transporting cocaine base and marijuana (counts 2 and 4). (Health & Saf. Code, §§ 11351.5, 11352, subd. (a), 11359, 11360, subd. (a).) Appellant admitted special allegations that he suffered four prior strike convictions and two prior drug related convictions and that he previously served four prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (a).) He was sentenced to two consecutive terms of 25 years to life imprisonment (counts 1 and 3).
Appellant argues the prosecutor committed prejudicial misconduct during his closing argument. Anticipating that we would find this issue was forfeited by the absence of contemporaneous objection, appellant also presents a related ineffective assistance claim. We conclude that the alleged prosecutorial misconduct was not preserved for direct appellate review. The ineffective claim fails because the challenged remark fell within the bounds of acceptable argument and an objection on this ground would not have succeeded.

Appointed counsel for defendant Ramandeep Singh has 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.[1] (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On June 27, 2012, Officer Phagura was dispatched to investigate a report of two men sitting in a car smoking marijuana. Upon arriving at the scene, he saw both men making furtive movements and reaching under the seats. As he approached, he smelled a strong odor of marijuana emanating from the car.

Defendant Michael Joe Sedillo pleaded no contest to three counts of commission of a lewd act with a child under age 14. (Pen. Code, § 288, subd. (a).)[1] In exchange, the prosecution agreed not to file a section 667.61 allegation. Defendant was sentenced to prison for 10 years and was ordered to pay, among other things, a $200 penal fine (§ 672) plus penalty assessments on each count, a sex crime fine (§ 290.3) plus penalty assessments on each count, a $7,200 restitution fine (§ 1202.4), a $7,200 restitution fine suspended unless parole is revoked (§ 1202.45), and a $736 presentence investigation report fee (§ 1203.1b).
On appeal, defendant contends the trial court erred when it (1) failed to determine his ability to pay the investigation report fee, (2) imposed the penal fines in addition to the sex crime fines, and (3) imposed a restitution fine greater than $240 pursuant to section 1202.4, subdivision (b)(1). We affirm.

Defendant Chad Earl Watts pled no contest to second degree robbery, and admitted he was personally armed with a handgun when he committed the robbery. He was sentenced to prison.
On appeal, defendant contends (1) the imposition of restitution and parole revocation fines in the amount of $240 constituted an ex post facto application of the law, and (2) he should have received credit for two additional days spent in presentence custody. The People concede both claims of error. We agree only with defendant’s second contention. Accordingly, we remand the matter back to the trial court for recalculation of defendant’s presentence custody credits, and otherwise affirm the judgment.