CA Unpub Decisions

Kade Kundrat appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)).[1] On appeal, he contends the evidence is insufficient to support the jury's findings that: (1) he acted with an intent to kill; (2) he acted with premeditation and deliberation; (3) he did not act in a heat of passion or sudden quarrel; and (4) he did not act in actual, but unreasonable, self-defense (i.e., imperfect self-defense).

Plaintiff and appellant, Larry D. Milner, Sr. (Plaintiff) sued defendant and respondent, The Regents of the University of California (the Regents) on medical malpractice theories arising out of the death of his 29-year-old son, Larry Milner, Jr. ("Larry Jr."), who was hospitalized at the Regents' University of California San Diego Medical Center and being treated for a variety of medical problems. Since Plaintiff was representing himself in the trial court and was out of the country on military deployment after he filed his complaint, the court granted several continuances of the trial date. The month before trial, the court denied a summary judgment motion by the Regents, after Plaintiff supplied a declaration about causation of harm from a retained expert medical witness.
At trial call, the Regents obtained judgment on their motion for nonsuit, following the trial court's granting of their motion in limine that disallowed any late designation of Plaintiff's expert medical witness. (Code Civ. Proc., § 2034.720; all further statutory references are to the Code of Civil Procedure unless otherwise specified.) Without that expert being designated, Plaintiff could not address at trial the element of causation of injury from the alleged medical negligence. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (Jennings).)

Jimmie G., the father of one-year-old J.G., appeals from an order of the Sacramento County Juvenile Court terminating his parental rights. ( "Welf. & Inst. Code, §§ 366.26, 395" Welf. & Inst. Code, §§ 366.26, 395; unless otherwise stated, all statutory references that follow are to the "Welfare and Institutions Code" Welfare and Institutions Code.)
On appeal, father contends the order terminating parental right must be reversed because efforts by the Sacramento County Department of Health and Human Services (Department) to locate and serve father prior to the jurisdiction and disposition hearing were not reasonable. We affirm the juvenile court’s order.
Facts and Proceedings

ourt to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we shall 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.)
Defendant pleaded no contest to assault with force likely to cause great bodily injury, kidnapping during a carjacking, and reckless driving. As to the assault charge he also admitted the enhancement allegation that he inflicted great bodily injury on the victim. The trial court sentenced defendant to an aggregate term of seven years eight months, plus a consecutive term of life in state prison. Because this matter was resolved by plea the facts are taken from the preliminary hearing transcript, as that served as the stipulated factual basis of the plea.
Defendant met Sam Jungwirth at the Whiskeytown Visitor Center in August 2010. Jungwirth agreed to give Fannan a ride to Lewiston. Defendant directed Jungwirth to a remote location and then hit Jungwirth multiple times on his head and face. Defendant ordered Jungwirth to move to the passenger’s seat and Fannan moved to the driver’s seat, locked the doors and began driving back toward Redding. He demanded Jungwirth’s wallet and took him to an ATM to withdraw cash. Defendant also told Jungwirth not to report his truck as stolen for at least a week. Defendant threatened Jungwirth and his family’s safety if he did not comply with defendant’s demands. When they got to the bank, Jungwirth yelled for someone to call 911.

Defendant Reginald Hola entered a negotiated plea of no contest to receiving stolen property, attempted second degree robbery and two counts of second degree robbery, and admitted a principal was armed with a firearm. He entered his plea in exchange for a stipulated state prison sentence and dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 for purposes of restitution only.
After entering his plea, defendant sought substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on three occasions (May 28, July 9, and Dec. 21, 2010) and each time his request was denied. Defendant also sought to withdraw his plea (July 9, 2010) and that motion was denied as well. On January 14, 2011, the court expressed a doubt as to defendant’s competency. After an evaluation by a doctor and referral to CONREP[1] for placement, defendant was committed to Napa State Hospital on April 15, 2011, for no more than three years. Six months later, the court found defendant competent. On November 4, 2011, defendant again sought substitution of counsel. After denying defendant’s Marsden motion, the court sentenced defendant to state prison.

Plaintiff Jerome A. Clay, Jr., sued defendant AT&T West, Inc., alleging wrongful termination and infliction of emotional distress.[1] AT&T West defaulted on the complaint; however, the trial court granted AT&T West’s motion to set aside the default. Later, the court sustained AT&T West’s demurrer to Clay’s complaint and dismissed the action. Representing himself, Clay appeals, contending in his headings that the trial court improperly sustained the demurrer but arguing in the text only that the court abused its discretion in setting aside AT&T West’s default.
We conclude that (1) the granting of the motion to set aside the default is reviewable on appeal after the dismissal, (2) Clay’s opening brief is deficient because it fails to rely solely on matters in the record on appeal, (3) Clay has forfeited any argument about whether the trial court properly sustained AT&T West’s demurrer, and (4) the record does not support Clay’s argument that the trial court abused its discretion in granting AT&T West’s motion to set aside the default.
We therefore affirm.

A.C. (mother) appeals an order terminating her parental rights with respect to now two-year-old C.T. Mother contends the order must be reversed because the investigation by the Department of Children and Family Services (the Department) into her American Indian heritage was insufficient and notices should have been given under the Indian Child Welfare Act (ICWA). We reject mother’s contention and affirm the order terminating parental rights.

Appellants Michelle S. (Mother) and Pedro G. (Father) appeal from the dependency court’s denial of their petitions for modification (Welfare and Institutions Code section 388)[1] and from the order terminating their parental rights to their son M.G. (now age eight) and their daughter L.G. (now age seven). They contend the court abused its discretion in denying their section 388 petitions. They also contend their parental rights should not have been terminated because they visited regularly and the children would benefit from continuing the family relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother contends that the court failed to apply the sibling benefit exception to the statutory preference for adoption. (§ 366.26, subd. (c)(1)(B)(v).) We find no error in any of the court’s orders and affirm.

A jury found defendant and appellant Caleb Bingham (Caleb) guilty of attempted murder and of shooting from a motor vehicle. At his jury trial, prior crimes evidence was admitted. Caleb contends on appeal that admitting the evidence, among other things, was an abuse of discretion and violated his federal constitutional rights. We hold that any error in admitting the evidence did not prejudice him. We therefore affirm the judgment.

Plaintiff and respondent Paul Michael Glaser (Glaser) sought and obtained a six-month civil harassment restraining order pursuant to Code of Civil Procedure section 527.6[1] against defendant and appellant Pamela Meserve. When the order expired and appellant resumed her harassment, Glaser sought and obtained a three-year injunction and appellant appealed the second order.
We affirm. Substantial evidence supported the issuance of the order under section 527.6. Moreover, the trial court imposed no verbal limitations on the written order and the order’s firearms restrictions do not violate the Second Amendment to the United States Constitution.

Appellant Arnold Newton was convicted, following a jury trial, of one count of attempted murder in violation of Penal Code sections 187 and 664.[1] The jury found true the allegation that the attempted murder was willful, deliberate and premeditated. The jury also found true the allegations that appellant personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d) and committed the crime for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(4). Appellant admitted that he had suffered a prior juvenile adjudication for a felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to 15 years to life for the attempted murder conviction with the gang enhancement, doubled to 30 years to life pursuant to the Three Strikes law, plus a term of 25 years to life for the firearm enhancement, for a total of 55 years to life in state prison.

Defendants and appellants Anthony Gonzales and Francisco Vasquez appeal their convictions for two counts of attempted premeditated murder. Defendant and appellant Ali Fateh appeals his convictions for second degree murder, two counts of attempted premeditated murder, and evading an officer, causing death. Gonzales and Vasquez were sentenced to 58 years to life in prison; Fateh was sentenced to 65 years to life. Appellants contend the evidence was insufficient to support their attempted murder convictions, and the trial court committed instructional error. Appellant Fateh further asserts that his abstract of judgment contains a clerical error which must be corrected. We correct the abstract as Fateh requests. In all other respects, we affirm.

Defendant and appellant Martin Ordonez was convicted by jury of one count of first degree murder of Crystal Zaldivar (Pen. Code, § 187, subd. (a)). The jury also found true the special allegation that he personally used a deadly weapon, a knife, in the commission of the murder (§ 12022, subd. (b)(1)). Defendant was sentenced to a term of 26 years to life in state prison.

R.C. (appellant), born in 1993, appeals a juvenile court dispositional order continuing him as a ward of the court and committing him to the Department of Juvenile Justice (DJJ).[1] Section 733, subdivision (c) of the Welfare and Institutions Code[2] precludes the court from committing a minor to DJJ unless, among other things, “the most recent offense alleged in any petition and admitted or found to be true by the court” is a DJJ-eligible offense. Appellant contends that section 733, subdivision (c) bars the court from committing him to DJJ because his most recent offense was not a DJJ-eligible offense. Appellant contends the most recent DJJ-eligible offense date is controlling. The People assert the most recent filed and adjudicated petition date controls.
We find no ambiguity in the statutory language. We interpret the statute’s reference to “the most recent offense alleged in any petition” to mean the offense that occurred last in chronological order. We vacate the juvenile court’s order committing appellant to DJJ and remand the matter for proper disposition.