CA Unpub Decisions

Plaintiff Robert Eberhart (appellant) appeals from orders sustaining respondents Mendocino County Sheriff’s Office, by and through the County of Mendocino (County), and California Highway Patrol’s (CHP) demurrers to his second amended complaint without leave to amend. Appellant contends he stated a valid cause of action for premises liability because respondents: (1) controlled the road on which he was injured after a vehicle he was driving collided with a cow that was on the road; and (2) had a mandatory duty to seize the cow from the road to prevent the collision from occurring. For the reasons set forth below, we shall dismiss the appeal as to CHP and affirm the order as to County.

A jury found Kwanasia Smith guilty of second degree robbery. (Pen. Code, § 211.) The court sentenced her to three years probation with the condition that she serve one year in either county jail or a drug treatment program. On appeal, Smith argues that the judgment must be reversed because the trial court (1) violated her constitutional right to confrontation by admitting preliminary hearing testimony from the victim of the robbery; and (2) denied her request for a pinpoint instruction regarding the force element of the robbery charge. We reject these contentions and affirm the judgment.

In August 2009, the San Francisco District Attorney charged appellant Delphino Balinton with five sex crimes: (1) kidnapping to commit rape, sodomy, and oral copulation; (2) forcible rape; (3) forcible oral copulation; (4) forcible oral copulation of a minor; and (5) assault with intent to commit sodomy. In connection with counts two and three, the information further alleged that appellant kidnapped the victim. As well, the information alleged that appellant suffered two serious felony strike convictions.
A jury convicted appellant of forcible rape, forcible oral copulation, and forcible oral copulation of a minor, and found the kidnapping enhancements true as to counts two and three. Additionally, the jury convicted appellant of simple assault, a lesser included offense to count five. The jury was unable to reach a verdict on count one and hence the court declared a mistrial on that count. Finally, the court found true the allegation that appellant suffered a prior robbery conviction in 1985.
The court sentenced appellant to an aggregate term of 55 years to life. Appellant challenges the jury instructions on the kidnapping enhancements. We affirm the judgment.

Seventeen-year-old Ricardo Garcia shot and killed Solomon Zarate, also 17 years old, in an impulsive, gang-related altercation at a party. A jury convicted him of first degree murder and found true allegations related to Garcia’s use of a gun and involvement in a criminal street gang. The trial court sentenced Garcia to life without the possibility of parole (LWOP), plus 25 years to life.
Garcia contends the jury was misinstructed on self-defense and on the intent required for the gang allegations. He also claims sentencing errors, including the trial court’s reliance on improper aggravating factors, ineffective assistance by his attorney, and the court’s misapprehension that the sentencing statute, Penal Code section 190.5, subdivision (b)[1] prescribed a presumptive LWOP term. In supplemental briefing, Garcia argues that section 190.5 is unconstitutional in light of Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), in which the United States Supreme Court held that mandatory LWOP sentences for minors are unconstitutional and identified factors courts must consider when deciding whether to sentence a juvenile murderer to LWOP or a lesser term.
We vacate Garcia’s sentence and remand to allow the court to re-evaluate its sentencing decision as prescribed by Miller. We reject Garcia’s remaining contentions and affirm the judgment in all other respects.

Appellant John A. Kavalaris (Husband) appeals from a judgment entered on August 4, 2010 after a bench trial on issues in a marital dissolution action.[1] Husband challenges the trial court’s resolution of his claim of breach of fiduciary duty against his former wife Linda M. Rock (Wife). We affirm.

Defendant Jon David Woody appeals from a judgment of conviction entered after a jury found him guilty of three counts of sexual penetration of a child 10 or under (Pen. Code, § 288.7, subd. (b)[1] - counts 1, 2, 5) and 17 counts of lewd acts upon a child under 14 (§ 288, subd. (a) - counts 3, 4, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25). The jury found true the allegation that the lewd acts were committed on multiple victims (§§ 1203.066, subd. (a)(7), 667.61, subd. (e)(5)) as to counts 3, 4, 7, 12, 13, 17, 18, 19, 22, 23, 24, 25. After denying defendant’s motion for new trial, the trial court sentenced defendant to an indeterminate term of 210 years to life and a consecutive determinate term of 16 years in state prison. On appeal, defendant raises contentions relating to the admissibility of evidence, jury instructions, and prosecutorial misconduct.[2] We affirm the judgment.

The Department of Motor Vehicles (DMV) suspended Gary Donald Collins’ driving privileges for his refusal to submit to, or failure to complete, a chemical test for blood alcohol content (Veh. Code, § 13353, subd. (a)(1)). Collins sought an order from the trial court, via a petition for peremptory writ of mandate, directing the DMV to set aside the suspension. Collins appeals from the trial court’s judgment denying his petition. Collins argues he did not refuse a chemical test of his blood alcohol content and law enforcement officers used unlawful force against him in obtaining the chemical test. None of his contentions have merit, and we affirm the judgment.

Appellant Cesar R., a minor, challenges the juvenile court’s finding he violated Penal Code section 148 by unlawfully obstructing a police officer. Appellant argues he resisted an illegal search and therefore did not obstruct an officer engaged in the lawful performance of his duties. We hold the officer’s search was lawful and therefore affirm the judgment.

An executive committee of South Coast Medical Center (Hospital) recommended denying the application of Dr. Michael Moran for reappointment to the Hospital’s medical staff. Dr. Moran challenged the recommendation through a lengthy, multilevel administrative review process. In the end, the governing board of the Hospital upheld the decision not to reappoint Dr. Moran. The superior court denied Dr. Moran’s petition for a writ of mandate to compel the Hospital to vacate its decision denying his reappointment and to withdraw a report sent to the Medical Board of California. Dr. Moran appeals.
We affirm. Substantial evidence supports the findings in support of the recommendation not to reappoint Dr. Moran to the Hospital’s medical staff. Furthermore, we reject Dr. Moran’s various challenges to the administrative procedures utilized by the Hospital.

A jury found defendant and appellant Santiago Gabriel Ortiz guilty of possession of marijuana for sale (Health & Saf. Code, § 11359, count 1), carrying a loaded firearm by a gang member (Pen. Code, § 12031, subd. (a)(2)(C), count 2), street terrorism (Pen. Code, § 186.22, subd. (a), count 3), and being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1), count 4).[1] The jury found true the allegations that counts 1, 2, and 4 were committed for the benefit of a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).[2] Defendant stipulated to the fact that he had been previously convicted of two felonies. He also admitted that he had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced him to the upper term of three years on count 1, doubled pursuant to the strike, plus four years on the section 186.22, subdivision (b)(1)(A) enhancement. For count 2, the court imposed a consecutive one year four months. The court sentenced defendant to six years each on counts 3 and 4, plus one year four months on the gang enhancement on count 4, but stayed those terms under section 654. Thus, the total term imposed was 11 years four months in state prison. The court gave defendant credit for time served of 422 days (282 actual plus 140 conduct).
On appeal, defendant contends that the conviction on count 4 for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) must be reversed because his predicate felony conviction had been reduced to a misdemeanor. We agree and reverse.

A.G. appeals a judgment following a dispositional hearing held under Welfare and Institutions Code section 361, subdivision (c).[1] She contends the juvenile court did not conduct an adequate inquiry into her husband's status as the minor child's presumed father under Family Code section 7611, subdivision (d) and erred when it did not determine his paternity status. She argues the error is not harmless because had the juvenile court determined parentage status, her husband, Jeremiah G., would have qualified as presumed father and received court-ordered family reunification services. A.G. asserts Jeremiah's ineligibility for services as a stepparent will impede or prevent family reunification.
We conclude that the juvenile court conducted an adequate parentage inquiry under section 316.2. The information provided to the court at the detention hearing was sufficient to establish that Jeremiah was an alleged father of the minor child. Jeremiah had notice of the proceedings and an opportunity to appear and assert his parentage status. Jeremiah did not seek to change his parentage status from alleged father to presumed father. The juvenile court is not required to determine paternity status under Family Code section 7611 where the alleged father does not identify himself as the dependent child's presumed father and seek such a determination. Accordingly, we affirm the judgment.

On July 12, 2012, the People filed a petition under Welfare and Institutions Code section 602, alleging that M.M. committed misdemeanor battery (Pen. Code, § 242) arising out of an incident in which M.M. struck, pushed, and kicked another student after school. The petition was subsequently amended to add a second misdemeanor count charging assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). M.M. denied the allegations.
On August 17, 2012, the court found the allegations to be true and sustained the petition. The court adjudged M.M. to be a ward pursuant to Welfare and Institutions Code section 602. At the dispositional hearing, the court committed M.M. to "Breaking Cycles" for a maximum of 240 days and placed her with her mother.
M.M. filed a timely notice of appeal. We affirm.

At the November 29, 2011 change of plea hearing, after defendant Shannon Lowe Dodson initialed and signed a change of plea form, the court told Dodson that under the plea agreement his "sentencing range could be anywhere between a minimum of three years in state prison to a maximum of 27 years in state prison,"[1] the court would make the sentencing determination after a sentencing hearing, Dodson would not necessarily receive the seven-year sentence the prosecutor had offered (and Dodson had rejected) earlier, and, since Dodson was admitting responsibility, the court was "not going to go to the high end of the sentencing range and give [him] the max or anything close to it."
After the court advised Dodson of his constitutional rights and the potential consequences of his plea, Dodson pleaded guilty to one count of conspiracy to commit first degree robbery—home invasion robbery in concert (count 1: Pen. Code, § 182, subd. (a)(1). (Undesignated statutory references will be to the Penal Code.) Dodson admitted count 1 allegations that (1) he committed count 1 for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)); and (2) in committing that street gang crime, he unlawfully carried a firearm on his person or in a vehicle (§ 12021.5, subd. (a)). Dodson also admitted that in 2008 he had suffered a prior juvenile robbery adjudication that qualified as a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). On the People's motion, the court dismissed the remaining counts and allegations alleged in the felony complaint.

Ponani Sukumar and his physical rehabilitation clinic, Southern California Stroke Rehabilitation Associates (together Sukumar), appeal orders dismissing Panatta Sport SRL (Panatta) and Air Machine Com SRL (COM) from the action for lack of personal jurisdiction. Sukumar contends the trial court erred when it granted the separate motions to quash of Panatta and COM after ruling neither was subject to jurisdiction in California under a successor liability theory, based on the minimum contacts of their alleged predecessor defendant Air Machine SRL (SRL). Sukumar also maintains both Panatta and COM are subject to specific jurisdiction in California based on each party's own activities/contacts (as opposed to those of SRL) in the forum.
Because we affirm an order granting SRL's motion to quash service for lack of jurisdiction in a separate opinion,[1] we conclude here that Sukumar failed to satisfy his burden to establish jurisdiction over Panatta and COM as successors of SRL. In addition, we also determine Sukumar did not carry his burden to prove either Panatta or COM is subject to specific jurisdiction based on each party's contacts with California. Therefore, we affirm the orders.