CA Unpub Decisions

F.R. Stewart, as trustee of the F.R. Stewart Trust, and John Moore, as trustee of the John M. Moore and Caryll D. Moore Trust (hereafter collectively defendants, unless the context indicates otherwise), appeal from a judgment awarding Aaron R. Thomas damages in this personal injury action. Thomas was severely injured in a commercial building owned by defendants, which he was viewing to possibly lease, when he fell from the top of a fixed ladder leading to the building’s roof after the roof hatch slammed shut on his head. On appeal, defendants contend the trial court abused its discretion by admitting evidence of: (1) a safety regulation promulgated under the California Occupational Safety and Health Act (Cal-OSHA) (Lab. Code, § 6300 et seq.) pertaining to a fixed ladder’s relationship to a safe access hatch; and (2) defendants’ failure to inspect or repair the roof hatch after the accident or to inform subsequent prospective tenants about Thomas’s accident. We find no prejudicial abuse of discretion and affirm the judgment.

Andrea H. (mother) became pregnant with Lily H. by Joseph L. (father) and gave birth to Lily at the end of May 2009. Mother filed a petition on August 5, 2011, pursuant to Family Code section 7822[1] to have Lily declared free from father’s parental custody.
After a contested hearing on March 16, 2012, the trial court granted mother’s petition to declare Lily free from father’s parental custody. Father contends there is no substantial evidence to support the trial court’s judgment and that the time for measuring abandonment should have begun when he was notified of the results of a paternity test. We disagree and affirm the judgment.

A juvenile court found that S.H., a minor, committed a lewd or lascivious act on a child, and he was adjudged a ward of the court. On appeal, S.H. contends that the juvenile court used an improper factor in finding him unsuitable for deferred entry of judgment (DEJ). S.H. also contends that the court erred by admitting a videotape and transcript of the victim’s interview with a child abuse services team (CAST) social worker.
We agree that the juvenile court abused its discretion by considering an improper factor in determining that S.H. was not suitable for DEJ, but we reject his remaining contentions. We set aside the jurisdictional and disposition orders and remand to the juvenile court to determine whether S.H. is suitable for DEJ using proper factors.

Antwon Alberty stole a pair of shoes and resisted a clerk’s efforts to detain him. He was charged with second degree robbery (Pen. Code, § 211)[1] with four prior prison term enhancements (§ 667.5, subd. (b)). Before the preliminary hearing, he pled no contest to robbery and admitted one prior prison enhancement, with the understanding that the other enhancements would be struck and the court would impose the three-year midterm. The court subsequently denied his motion to withdraw his plea and imposed the agreed-upon term. Alberty appeals contending the trial court abused its discretion by denying his motion. We affirm.

On February 14, 2012, an information charged defendant and appellant Hector Manuel Rodriguez with driving under the influence under Vehicle Code section 23152, subdivision (a) (count 1); and driving while having 0.08 percent or more of alcohol in the blood under Vehicle Code section 23152, subdivision (b) (count 2). The information also alleged that defendant had suffered a prior conviction under Vehicle Code sections 23550 and 23550.5. The information further alleged that (1) defendant had suffered two prison priors under Penal Code section 667.5, subdivision (b); and (2) a strike prior under Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).
On February 21, 2012, defendant filed a demurrer to the information. He contended that the out-of-state prior failed to meet the requirements under Vehicle Code sections 23550 or 23550.5. On March 8, 2012, defendant filed a motion to dismiss under Penal Code section 995, arguing, among other things, that the out-of-state prior failed to meet the requirements of Vehicle Code sections 23550 or 23550.5. On March 14, 2012, the prosecutor filed oppositions to both motions. On March 16, 2012, the court denied both motions.

On October 14, 2011, a first amended petition charged defendant and minor E.B. (minor) with misdemeanor battery on a school employee under Penal Code[1] section 243.6 (count 1); and residential burglary under section 459 (count 2). On November 7, 2011, after a jurisdictional hearing, the juvenile court found the allegations in counts 1 and 2 to be true. At the disposition hearing on November 22, 2011, the juvenile court declared minor a ward of the court and placed him on probation. On November 23, 2011, minor filed a notice of appeal.
On appeal, minor contends that there is insufficient evidence that minor knew of the wrongfulness of his conduct as to count 1 and that the juvenile court erred in denying his motion to dismiss count 2. For the reasons set forth below, we shall affirm the judgment.

Defendant Frank Xavier Torres-Zamora appeals from his conviction of three counts of attempted robbery (Pen. Code,[1] §§ 211, 664; counts 2, 10, 11), five counts of robbery (§ 211; counts 3, 4, 7, 8, 12), and escape (§ 4532; count 13) with associated enhancements. Defendant contends his withdrawal of his plea of not guilty by reason of insanity (NGI) was not made knowingly or voluntarily, and he was denied his right to present an insanity defense. More specifically, he argues the trial court erred in (1) failing to inform him (a) of his right to a trial on the issue of sanity and (b) that by withdrawing the NGI plea, he was waiving jury trial of the issue of insanity, and (2) failing to obtain Boykin/Tahl[2] waivers before allowing him to withdraw his NGI plea. We find no error, and we affirm.

For years, defendant and appellant J.J. (Defendant) has been forced to defend himself in litigation brought by A.T. (Mother) regarding plaintiff and respondent E.C. (Child). Mother engaged in extramarital relations with Defendant, which resulted in the birth of Child in 2000. After Child’s birth, Mother’s husband, P.C. (Husband), filed for dissolution of his marriage to Mother. While the dissolution was pending, Mother, under threat of exposing Defendant’s paternity, convinced Defendant to enter into a “confidential” agreement to provide financial support for Child. Separately, Mother settled her dissolution with Husband by agreeing there were only two children born of the marriage. Thus, the settlement did not recognize Child as Husband’s responsibility. Nonetheless, neither Mother nor Husband took any legal action to have the paternity of Child declared by the court during the first two years of Child’s life.

A jury convicted defendant and appellant Rene Gallegos of second degree murder of the victim, his three-month old son[1] (count 1—Pen. Code § 187, subd. (a));[2] assault on a child under eight years of age causing death as to the same victim (count 2—§ 273ab); and five counts of child neglect respectively as to his remaining offspring (§ 273a, subd. (b)). Another jury[3] convicted Gallegos’s girlfriend, appellant and defendant Joanna Gonzalez, of involuntary manslaughter of the victim (count 1—§ 192(b)), a lesser, necessarily included offense of the count 1 charge of second degree murder and five counts of child neglect (§ 273a, subd. (b)) as to her remaining offspring.[4] The court sentenced Gallegos to an aggregate, indeterminate term of 25 years to life. The court granted Gonzalez two years probation.
On appeal, Gallegos contends the court’s instruction of the jury with a bracketed portion of the pattern jury instruction CALCRIM No. 520 violated his federal constitutional right to due process by permitting the jury to find him guilty of second degree murder based on negligence rather than on the requisite intentional, deliberate, and knowing act. He further maintains the court prejudicially erred in failing to adequately answer the jury’s two questions regarding the instruction. Gonzalez argues insufficient evidence supported her conviction for involuntary manslaughter. She further maintains the court prejudicially erred in failing sua sponte to instruct the jury with CALCRIM No. 3500, the unanimity instruction. We affirm the judgments.

Appellant Andy D. Chadwick pleaded guilty to selling/furnishing a controlled narcotic substance, cocaine base, in violation of Health and Safety Code section 11352, subdivision (a). He admitted that within the meaning of Health and Safety Code section 11370.2, subdivision (a) he had been previously convicted of a violation of Health and Safety Code section 11352. Pursuant to a stipulated agreement, he was sentenced to prison for six years; the lower term of three years and three years for the enhancement. Chadwick was given 128 days' credit against the sentence and the court ordered a restitution fine of $400. The court stayed an additional $400 fine pending successful completion of parole.
Chadwick filed an amended notice of appeal on April 11, 2012, indicating the appeal was to be based on the sentence and matters occurring after the plea.

The defendant in this case owns a condominium in a common-interest development. The sidewalks in the development are owned and maintained by the development's homeowners association. The plaintiff slipped and fell on the sidewalk near the defendant's residence and alleges the sidewalk was defective. Contrary to the plaintiff's contention, even though the record contains evidence which suggests the defendant was aware of the defect in the sidewalk, the defendant had no duty to warn the plaintiff about the defect. The defendant did not have sufficient control over the sidewalk to give rise to either a duty to maintain the sidewalk or warn members of the public of defects in it. Accordingly, the trial court did not err in granting the defendant's motion for summary judgment.

After his motion to suppress the evidence was denied and in exchange for no state prison at the outset and dismissal of the remaining counts, defendant John Raymond Schugart entered a no contest plea to carrying a loaded firearm in a vehicle and possessing drug paraphernalia.
Granted probation, defendant appeals. His sole contention is that the trial court erroneously denied his suppression motion. We will affirm.

Following a jury trial, defendant James Reginald Ely was convicted of sale of cocaine base. ( "Health & Saf. Code, § 11352, subd. (a)" Health & Saf. Code, § 11352, subd. (a).) The trial court sustained a prior prison term allegation ( "Pen. Code, § 667.5, subd. (b)" Pen. Code, § 667.5, subd. (b)) and sentenced defendant to five years in state prison.

Mark S. (father) appeals from the juvenile court’s judgment continuing the placement of minors James S. and Jonathan S. in the custody of Tiffany T. (mother) and terminating the dependency, and from the court’s exit order denying visitation to father. ( "Welf. & Inst. Code, §§ 361.2, 362.4" Welf. & Inst. Code, §§ 361.2, 362.4.)[1] He contends the court should have retained jurisdiction because the minors’ “drug use, educational struggles, and unrepaired relationship with father” established a need for continued supervision. We affirm.