CA Unpub Decisions

Sandro Calderon Villanueva (appellant) was convicted by a jury of attempted murder (Pen. Code, § 664/187, subd. (a)),[1] forcible rape (§ 261, subd. (a)(2)), attempted forcible rape (§§ 664/261), torture (§ 206) and two counts of sexual penetration by a foreign object (§ 289, subd. (A)(1)(a)). The jury also found that he personally kidnapped and tortured the victim and inflicted great bodily injury and personally used a dangerous or deadly weapon as to the rape, and the two counts of sexual penetration (§ 667.61). In a separate phase of the trial, the jury found appellant to be sane at the time of the commission of the offenses. He was sentenced to a term of life plus 32 years to life in state prison. He appeals, raising the following contentions: there was insufficient evidence to support the two counts of penetration with a foreign object; his constitutional right to confrontation was violated by the admission of evidence regarding DNA testing; his constitutional right to present an insanity defense was violated when the trial court limited the testimony of one of his witnesses; his constitutional right to a fair trial was violated when the court instructed the jury with CALJIC No. 1.12; there was insufficient evidence to support the conviction of attempted rape; and he was deprived of his constitutional right to effective trial counsel when his counsel failed to object to erroneous jury instructions, failed to elicit critical evidence in support of his insanity defense and failed to object to the DNA testimony.

On June 1, 2009, Neway Mengistu filed a complaint against Cross Roads Properties I, LLC and several individual defendants (collectively, defendants), alleging causes of action for breach of contract and intentional tort and seeking damages of $100,000. The action related to a rental agreement Mengistu had entered into with Cross Roads Properties I. At the same time as defendants answered the complaint, Cross Roads Properties I filed a cross-complaint against Mengistu, alleging in a cause of action for breach of contract that Mengistu owed it past due rent, plus costs and attorney fees. After a bench trial, the trial court ruled that Mengistu, who presented no evidence or witnesses on his complaint, failed to prove his case and that Cross Roads Properties I established that Mengistu had breached the rental agreement. The court entered judgment in favor of Cross Roads Properties I on Mengistu’s complaint and on its cross‑complaint, awarding it $2,581.56 in unpaid rent, plus $1,420 in costs and $2,000 in attorney fees. Mengistu appealed from the judgment. Although Mengistu does not challenge the award on the cross-complaint, he contends the judgment should be reversed because the trial court erroneously denied a continuance of the trial and a jury trial on his complaint and failed to rule on his request for an additional waiver of court fees. We disagree with Mengistu and thus affirm the judgment.
In January 2010, at a case management conference, the trial court scheduled the final status conference for June 18 and the trial for June 22. At the June 18 final status conference, defendants’ counsel represented that Mengistu had not answered the cross‑complaint or discovery requests. Mengistu said that he was not prepared for trial and, although he had requested a jury trial, did not pay jury fees or file any documents for trial. He also did not serve any witness subpoenas or notice any parties to appear at trial. Three days later, on June 21, Mengistu filed an ex parte application to continue the trial. In his application, Mengistu maintained that a continuance was warranted because his appeal to the appellate division of the superior court from the judgment against him in a related unlawful detainer action between Cross Roads Properties I and him still was pending and he did not want to commence discovery in this case until resolution of the unlawful detainer proceeding. Mengistu also said that he believed defendants were going to move to compel him to answer discovery responses in this case and planned to request a trial continuance at the hearing on that motion, but defendants never filed such a motion. The court denied the ex parte application. The denial of the application was not an abuse of discretion. (Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1586 [trial court’s ruling on request for continuance reviewed for abuse of discretion].) Mengistu did not demonstrate that the unlawful detainer proceeding somehow precluded his case against defendants from going forward. In addition, even if he believed defendants were going to file a motion to compel, nothing prevented him from pursuing his case against them, either by preparing for trial on June 22, a date which he had known about for five months, or timely requesting a continuance with a showing of good cause. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172 [party requesting continuance has burden of showing good cause].) In any case, the court proceeded first with trial on the cross-complaint, effectively giving Mengistu a continuance of the trial on his complaint until August 5, and Mengistu still was unprepared for trial on that later date.

Appellant, Boonlack Chanpheng, was charged with multiple felony counts involving the kidnapping and murder of Vutha Au. It was also alleged that the crimes were commited in association with a criminal street gang under Penal Code section 186.22, subdivision (b)(1)(C). On April 4, 2011, appellant entered a no contest plea to count 3, the kidnapping charge, and admitted the criminal street gang allegation. On June 7, appellant was sentenced to the mid-term of five years on the kidnapping conviction, plus ten years for the gang enhancement, for an aggregate term of fifteen years.

J.B. (appellant), born in November 1993, appeals from the juvenile court’s dispositional order placing him on probation and suspending his driver’s license after finding he was found in public under the influence of alcohol (Pen. Code, § 647, subd. (f). Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the order.

Defendant Mark Penoli appeals from a final judgment after a no contest plea to one count of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)).[1] No finding of probable cause for the appeal was made by the trial court and no application of a finding was presented by defendant. Appellate counsel has reviewed the file in this case and determined there are no meritorious issues to raise on appeal. She has complied with the relevant case authorities. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, and did not file such a brief. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment. However, we remand the case to the trial court to correct an error in the abstract of judgment.

Defendant M.M. appeals from the juvenile court’s issuance of a permanent restraining order preventing her from contacting her daughter G.M. and her daughter’s maternal grandparents, except for supervised visitation with the child. She claims there was insufficient evidence to support the restraining order as to G.M. We affirm.

Appellant Aegis Medical Systems, Inc. (Aegis) operates a network of narcotic treatment clinics and directly contracted with the state’s Department of Alcohol and Drug Programs (the Department) to provide methadone maintenance services in Kern, Stanislaus and other counties as a part of the Medi-Cal drug treatment program. In 2010, the Department and its director, Renee Zito, issued Bulletin 10-06 (Bulletin) stating that it would terminate direct contracts with drug treatment providers except in counties that were not otherwise providing or contracting for treatment services as required by federal and state law. After being notified that its state contracts in Kern and Stanislaus Counties would be terminated under this policy, Aegis brought a suit challenging the Bulletin as an unlawful “underground regulation” issued in violation of the Administrative Procedure Act (APA). (See Davenport v. Superior Court (2012) 202 Cal.App.4th 665, 669.)

Defendant Armondo Martin Galindo was charged with assaultive offenses against James and Jessica Walker (felony assault with a deadly weapon, a vehicle), and Dennis McMahon Sr. (McMahon Sr.) and Dennis McMahon Jr. (McMahon Jr.) (felony assault with a deadly weapon, a “stick/pole”). (Pen. Code, § 245, subd. (a)(1).[1]) The felony assault charges relating to the McMahons also included sentence enhancement allegations that defendant inflicted great bodily injury on the McMahons within the meaning of section 12022.7. After a jury trial, defendant was acquitted of the assault charges concerning the Walkers. However, the jury convicted defendant of assault with a deadly weapon committed against McMahon Jr., found true the related great bodily injury allegation, and assault (§ 240) as a lesser included offense committed against McMahon Sr. The court sentenced defendant to an aggregate term of six years in state prison with presentence custody credit of one day.
On appeal defendant seeks to set aside his convictions of assault against the McMahons on the ground that the People failed to prove beyond a reasonable doubt that he did not act in self-defense. He also contends that the inconsistency of the guilty verdicts undermines the usual presumption that the jury understood and followed the trial court’s instructions on self-defense. We conclude defendant’s contentions are without merit, and accordingly, we affirm.

Douglas A. (Father) appeals from an order of the juvenile court terminating his reunification services as to his four minor children, L.A., J.A., A.A., and G.A. at the six-month review hearing. He contends the juvenile court erred: (1) in finding respondent Lake County Department of Social Services (Department) provided him reasonable services to aid him in overcoming the problems that led to the children’s removal; and (2) in not continuing his reunification services. (Welf. & Inst. Code, § 366.21, subd. (e).)[1] We reject these contentions and affirm the juvenile court’s order.

Brier Buchalter (husband), representing himself, appeals from the judgment of dissolution of his marriage to Leslie Buchalter (wife). He raises several issues concerning the division of the couple’s property, arguing that the court erred by: (1) placing too high a valuation on the home that was the couple’s primary residence during the marriage, making the amount required for him to buy out wife’s community property interest too high; (2) calculating the amount of his separate property interest in that home; (3) assigning no goodwill value to a business operated by wife; (4) ordering him to give wife half of an installment payment he received for the sale of a business franchise; (5) ordering him to give wife half of the amount he withdrew from a retirement account after their separation; and (6) denying him credits against spousal support arrearages for periods of time when he alleged the couple had reconciled. We agree that a portion of the judgment misstates husband’s separate property interest in the primary residence as $60,000 rather than $65,000, but otherwise find no error.

Seabright Insurance Company (Seabright) intervened in a negligence action brought by Bernardino Mejia-Gutierrez and his wife Elvira Vasquez against Comcast of California III, Inc. (Comcast) for on-the-job injuries Mejia-Gutierrez sustained while working for AC Square, a cable company hired as a subcontractor by Comcast. Seabright appeals the trial court’s grant of summary judgment in favor of Comcast, contending the court erroneously found that Seabright had not submitted any evidence raising a triable issue of material fact as to Comcast’s liability for Mejia-Gutierrez’s injuries. Because we agree with the trial court that Seabright did not raise a triable issue of material fact with respect to Comcast having either negligently exercised retained control of jobsite safety or breached a relevant nondelegable duty, we shall affirm the judgment.

On May 8, 2009, defendant Mikel Harris fatally stabbed Andre Fluker in the chest during an altercation in defendant’s room at the Dalt Hotel in San Francisco’s Tenderloin neighborhood. Defendant was charged with second degree murder, but a jury acquitted him of that charge and involuntary manslaughter. The jury deadlocked on voluntary manslaughter. A second jury convicted defendant of voluntary manslaughter. On appeal, defendant asserts collateral estoppel foreclosed retrial on the theory that defendant killed with a subjective awareness of, and conscious disregard for, the risk of death, and the trial court misinstructed the jury on manslaughter, intoxication, and accident and misfortune. He also argues the trial court erroneously denied his new trial motion based on the prosecutor’s failure to timely disclose impeaching evidence relevant to the credibility of a prosecution rebuttal witness. After careful review of the case, we affirm.

A modification decision.

After pleading guilty to felony grand theft (Pen. Code, § 487, subd. (a)),[1] Nicholas Daniel Petty challenges on appeal two of the conditions of his probation, namely that he take antipsychotic medications at the direction of his mental health worker and that he stay at least 50 yards from the victim’s home. He also challenges the legality of a stay‑away order prohibiting him from coming within 100 yards of the victim or her daughter.
Resolution of the first question requires us to consider the applicability of our prior decision in In re Luis F. (2009) 177 Cal.App.4th 176 (Luis F.) to an adult probationer. In Luis F. we upheld the juvenile court’s power to require psychotropic medication as a condition of juvenile probation. But in the present case we conclude the medication condition of probation must be stricken due to lack of a medically-informed showing that the condition is reasonably related to defendant’s crime or future criminality. We affirm the 50-yard restriction on defendant’s approach to the victim’s home and the stay-away order, as modified.