CA Unpub Decisions

Diep Ly sued anesthesiologist Dr. David Larson for persistent back pain and leg numbness following Larson’s administration of five percent Lidocaine as a spinal anesthetic for a dilation and curettage (D & C) procedure necessitated by a miscarriage the day before. The jury returned a defense verdict. It was undisputed at trial that while Larson told Ly her choice of spinal, as distinct from general, anesthesia carried with it the risk of “back pain,” he did not inform Ly that Lidocaine, as distinct from another spinal anesthetic, Marcaine, carried with it an elevated risk of transient neurologic syndrome (TNS), which Ly would later claim as the cause of her back pain and leg numbness. The sole question on appeal is whether substantial evidence supports the jury’s express finding that Ly gave Larson her informed consent for the spinal anesthesia that used five percent Lidocaine.
We affirm the judgment entered in the wake of the defense verdict. The jury heard evidence from which it could reasonably infer that Marcaine, which can last up to five hours, was just not a viable option for Ly’s D & C procedure, which was expected to be over in a matter of minutes. Marcaine can take up to five hours to wear off and commonly requires patients to remain several hours with a urinary catheter. The jury also heard conflicting evidence concerning just how much Lidocaine increases the risk of TNS, including evidence that Lidocaine-caused TNS is practically unheard of after 10 days. Under these circumstances, the jury could reasonably conclude the potential for TNS as a result of the use of Lidocaine was reasonably subsumed in telling Ly of the potential for back pain as the result of a spinal anesthetic.

Appellant Marie Chantal McDonough, who had been committed to the state hospital as a result of having been found not guilty by reason of insanity in a felony prosecution. Eight years later, the director of the Metropolitan State Hospital filed a semiannual report recommending appellant be placed in outpatient treatment. (Pen. Code, § 1603, subd. (a)(1); all statutory references are to the Penal Code unless otherwise stated.) The superior court held a hearing on the matter and denied appellant outpatient treatment. In a published opinion we reversed “because the trial court did not find appellant is currently mentally ill and dangerous, and denied outpatient status because it did not find the treatment program appropriate.” (People v. McDonough (2012) 196 Cal.App.4th 1472, 1493.) We directed the trial court on remand to consider the evidence from the trial, any other relevant evidence the parties may offer, and determine whether appellant carried her burden by a preponderance of the evidence and is entitled to outpatient treatment. (Ibid.)
The parties offered no new evidence on remand. The trial court reviewed the evidence from the first hearing and again denied outpatient treatment, finding appellant to be currently dangerous.
I

Holly A. (Holly) and Keith R. (Keith) had one child, B.R. (Daughter), before dissolving their two-year marriage.[1] After a trial on custody and visitation, the trial court awarded primary physical custody of Daughter to Keith. Holly challenges the court’s judgment on custody and visitation. We affirm.
Substantial evidence supports the trial court’s finding that Daughter’s best interest is served by vesting primary physical custody with Keith. Nothing in the appellate record supports Holly’s claims that the trial court abused its discretion.

Arianna M. and Aubrey M. were declared dependents of the juvenile court after (1) their mother physically attacked six-week-old Aubrey, cutting and stabbing the infant; (2) both parents admitted abusing illegal substances; and (3) a prior referral for general neglect had been substantiated. Reunification services were ordered for John M. (father). After father continued to test positive for illegal drugs and failed to make significant progress under his reunification plan, the juvenile court terminated reunification services and set a permanent plan hearing. At the combined hearing on a Welfare and Institutions Code section 388[1] petition filed by father and the section 366.26 permanent plan, the juvenile court denied the section 388 petition, terminated parental rights, and set adoption as the permanent plan.
Father appeals, contending the juvenile court abused its discretion in denying his section 388 petition and erred in terminating his parental rights. We reject father’s contentions and affirm the order.

In this matter, we have reviewed the petition, the response filed by real party in interest, and petitioner’s reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Petitioner’s basic entitlement to postconviction discovery under Penal Code section 1054.9 is clear. Even applying the “good cause” requirement, the statute only requires petitioner to show that the requested evidence is material to his “effort to obtain relief.” (Pen. Code, § 1054.9, subd. (c), italics added.) He is not required to demonstrate that it will in fact be exculpatory.

Petitioner M.F. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order terminating reunification services as to her 23-month-old daughter, H.M. (the child), and setting a Welfare and Institutions Code section[1] 366.26 hearing.[2] Mother argues that the juvenile court erred in finding that there was sufficient evidence that Mother posed a substantial risk of detriment if the child was returned to her custody. We reject this contention and affirm the judgment.

Defendant and appellant Charles Lee Brown pled guilty to possession and transportation of cocaine (Health & Saf. Code, §§ 11350, 11352, counts 5 & 6, respectively); possession and transportation of cocaine base (Health & Saf. Code, §§ 11350, 11352, counts 7 & 8, respectively), and possession of marijuana while in custody (Pen. Code, § 4573.8,[1] count 10).
Defendant was granted supervised probation on February 4, 2010, but on February 23, 2012, as a consequence of a new criminal filing, probation was revoked. On June 8, 2012, defendant was sentenced to the upper term of five years on count 6 for transportation of cocaine, and a consecutive one-year four-month term on count 8 for transportation of cocaine base, for an aggregate prison term of six years four months. Concurrent two-year terms were imposed as to the remaining counts 5, 7, and 10.
Defendant contends that the concurrent sentences for counts 5 and 7 should have been stayed pursuant to section 654. The People agree that the imposition of concurrent sentences was improper. Accordingly, we affirm the conviction with directions to correct the minute order of June 8, 2012.

Defendant and appellant C.V. (minor) admitted that she violated the conditions of her wardship by leaving her placement without permission, as alleged in a Welfare and Institutions Code section 777 petition. Following a contested dispositional hearing, the juvenile court reordered placement. On appeal, minor contends that the court abused its discretion in ordering her to placement again. We affirm.

On February 3, 2010, an information charged defendant and appellant Edgar Nunez with one count of possessing a controlled substance for sale, methamphetamine, under Health and Safety Code section 11378 (count 1); and possessing paraphernalia used for unlawfully injecting and smoking a controlled substance under Health and Safety Code section 11364 (count 2). With regard to count 1, the information further alleged that defendant possessed for sale a substance containing 28.5 grams or more of methamphetamine and 57 grams or more of a substance containing methamphetamine, within the meaning of Penal Code section 1203.073, subdivision (b)(2).
On June 4, 2010, defendant pled guilty to all counts.
The same day, defendant was sentenced to state prison for a total term of two years. The court selected count 1 as the principal count and imposed the middle term of two years. On count 2, the court imposed 180 days to run concurrent to count 1. The court suspended execution of the sentence and placed defendant on supervised probation for three years with 365 days in local custody. Defendant was awarded credit for time served for 16 actual days plus 16 days under Penal Code section 4019, for a total of 32 days credit.

Donald E. Jordan appeals a judgment following his conviction for robbery (Pen. Code, § 211). He challenges the imposition of a $154 criminal justice administration fee (Gov. Code, § 29550)[1] and a $38 theft fine (Pen. Code, § 1202.5). Jordan contends an ability-to-pay requirement must be read into section 29550.1 to avoid violating the equal protection clause. (U.S. Const., 14th Amend.) He argues there is insufficient evidence to support a finding he had the ability to pay either the criminal justice administration fee or the theft fine. We affirm.

Defendant Michael Gorman published statements that Eric Swartz, a member of the Board of Directors of plaintiff Peregrine Pharmaceuticals, Inc. (Peregrine), had engaged in insider stock trading, and that Peregrine took actions to cover up Swartz's illegal activity. Peregrine filed an action against Gorman pleading claims for defamation and trade libel. Gorman, after answering the complaint, moved to dismiss the complaint pursuant to Code of Civil Procedure[1] 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 denied Gorman's motion and this appeal followed.

A jury convicted Alberto Rivera, Jr. of the second degree murder of Jose Alfonso Diaz (Pen. Code,[1] § 187, subd. (a), count one); the lesser offense of attempted voluntary manslaughter of Arthur Mendoza (§§ 664, 192, subd. (a), count two); and discharging a firearm at an occupied vehicle (§ 246, count three). The jury found true allegations that in committing counts one and three, Rivera personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person who was not an accomplice (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), and in committing count two, he personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)).
The court sentenced Rivera to 44 years four months to life in state prison as follows: 15 years to life for murder, plus 25 years to life for the count one firearm enhancement, plus four years four months on count two and its enhancement.

A jury convicted Doreen Banke Alonzo of the following five crimes committed against 69-year-old Andres Spiegl at his tow truck business/residence in Salton City: (1) kidnapping to commit robbery (count 1: Pen. Code, §§ 209, subd. (b)(1), 211) (undesignated statutory references will be to the Penal Code unless otherwise specified); (2) first degree robbery (count 2: § 211); (3) elder abuse with infliction of great bodily injury (count 3: § 368, subd. (b)(1), hereafter § 368(b)(1), (2)); (4) first degree burglary (count 4: § 459); and (5) conspiracy to commit first degree robbery and first degree burglary (§§ 182, subd. (a)(1), 211, 459).[1] With respect to the count 3 elder abuse conviction, the jury found true an enhancement allegation that the victim was 69 years old and suffered great bodily injury (§§ 368, subd. (b)(2) & 12022.7). With respect to the count 5 conspiracy conviction, the jury found that at least one member of the conspiracy[2] committed at least one of the following overt acts: Alonzo called a tow truck driver; the driver, Spiegl, was tied up; and money and property were taken from Spiegl.
At the sentencing hearing, the court first denied Alonzo's motion for new trial, which was based on her claim (discussed more fully, post) that the jury had committed misconduct during deliberations. The court found that any jury misconduct was harmless. The court then sentenced her to an aggregate prison term of life without the possibility of parole plus eight years.

Appointed counsel for defendant Doug Tuttle asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)
We will direct the trial court to correct the abstract of judgment to reflect the orally imposed fines and fees and the statutory basis for the prior prison term enhancement, Penal Code section 667.5, subdivision (b). Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.