CA Unpub Decisions

Defendant Marvin Charles Foster appeals a judgment of conviction following a jury trial during which he was found guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)).
Defendant asserts the trial court erred by (1) admitting evidence of prior incidents of domestic violence under Evidence Code section 1109; (2) incorrectly instructing the jury with CALCRIM No. 852; (3) allowing the prosecution to amend the dates of offense during trial; (4) ordering restitution; and (5) ordering no contact with the victim under Penal Code section 136.2. In addition, defendant asserts he was denied effective assistance of counsel for his attorney’s failure to object to certain testimony, and that the conviction for assault with a deadly weapon is not supported by substantial evidence.
Defendant also brings a petition for writ of habeas corpus asserting ineffective assistance of counsel that we ordered consolidated with the appeal.

A modification decision.

A jury convicted defendant Rosa Isela Lizarraga of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a))[1] and two counts of aggravated assault (§ 245, subd. (a)(1)). Defendant admitted she stabbed the victim twice, but asserted her actions were taken in self-defense. She claims on appeal that the trial court prejudicially erred by allowing the prosecutor to introduce evidence of a prior incident in which defendant stabbed a different individual. Defendant further asserts the court erred by refusing to allow her to present evidence that she was not charged with a crime as a result of the prior incident. Although we agree with the latter contention, we conclude the court’s error was not prejudicial and therefore affirm the judgment.

The trial court erred in excluding a written “Release Plan” prepared by appellant Daniel Christopher Cebada (Cebada) in anticipation of being released from a state mental hospital. The release plan was not hearsay. It was offered to show a number of aspects of Cebada’s mental state, including that he had thought through, and grappled with, the logistical and psychological problems he would face upon any release from a mental hospital. It also showed the self-awareness he had gained from spending the previous decade in mental hospitals. The document was directly relevant on the issue of the probability of his reoffending. (See Evid. Code, § 1250 [evidence of plan not hearsay]; People v. Ortiz (1995) 38 Cal.App.4th 377, 389 [evidence of state of mind not hearsay].)
We have reviewed, on our own, the entire record in this case to determine whether the evidentiary error was prejudicial. Three factors persuade us that the exclusion was indeed prejudicial under the reasonable probability standard laid down in People v. Watson (1956) 46 Cal.2d 818 (Watson).

The district attorney simultaneously filed two petitions against then 16-year-old A.G. (minor). One petition alleged he committed acts amounting to vandalism and possessing graffiti tools, while the second alleged he engaged in conduct constituting a robbery. After a trial on the latter petition, the juvenile court found the robbery allegation true. Minor waived his constitutional rights and admitted the first petition’s allegations. At the dispositional hearing on both petitions, the juvenile court declared minor a ward of the court and imposed probation.
On appeal, minor asserts numerous grounds for reversal. He challenges the sufficiency of the evidence supporting the true finding on the robbery petition. Minor also attacks several evidentiary rulings at the jurisdictional hearing on that petition: The juvenile court’s denial of his motion to suppress evidence, allowing a police detective to testify as a rebuttal witness, and the admission of statements minor made during police questioning. Next, minor argues the juvenile court abused its discretion in refusing to allow discovery of the robbery victim’s criminal history. Finally, he challenges the constitutionality of several probation conditions imposed on him. We shall modify two of the probationary conditions to insert an express scienter requirement, but otherwise affirm the judgment.

L.G. (mother) and F.R. (father) are the parents of four-year-old C.R., three-year-old A.R. and two-year-old V.R.[1] They were also the parents of a daughter, G.R., until she was freed for adoption in May 2010 after they failed to reunify with her.
In May 2012, the juvenile court denied mother and father reunification services as to C.R., A.R. and V.R. pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11)[2] and set a section 366.26 hearing to implement a permanent plan. Mother and father each filed a writ petition pursuant to California Rules of Court, rule 8.450 (rule) in propria persona, challenging the juvenile court’s ruling without asserting a basis for error in compliance with the rule. Subsequently, mother’s trial counsel filed a writ petition challenging the sufficiency of the evidence to support the juvenile court’s denial of services order.
Having reviewed the appellate record and mother’s petition, we find error in the juvenile court’s denial order and grant her writ relief. Since father did not raise error in his writ petition or join in mother’s argument, we would ordinarily dismiss his petition as facially inadequate. However, the denial of services order was error as to both parents. Further, real party in interest briefed the issue mother raised in its opposition to father’s petition. Consequently, there is no prejudice to real party in this court granting relief as to father as well.
In our view, the criticality of reunification services in dependency proceedings dictates that we address the propriety of the juvenile court’s denial of reunification services as to father even though he did not properly raise it in his writ petition. Therefore, in this rare exercise of our discretionary authority to review an issue not raised, we consolidate mother and father’s cases on our own motion and address whether the juvenile court erred in denying mother and father reunification services pursuant to section 361.5, subdivision (b)(10) and (11). We conclude that it erred and grant extraordinary writ relief.

A jury convicted Larry Kinkade Carter and Jonathan Japheth Norton of first degree murder (Pen. Code, § 187, subd. (a); count 1)[1] and active gang participation (§ 186.22, subd. (a); count 3). The jury additionally convicted Norton of being a felon in possession of a firearm (Former § 12021, subd. (a)(1), repealed and reenacted without substantive change as § 29800, subd. (a)(1), by Stats. 2010, ch. 711, §§ 4 [repeal] & 6 [reenactment], eff. Jan. 1, 2012; count 2.)
As to count 1, the jury found true allegations Norton personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) (subdivision (d) firearm enhancement), and Norton and Carter were principals and at least one principal personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (e)(1)) (subdivision (e)(1) firearm enhancement). The jury also found true allegations Norton committed the offenses in counts 1 and 2 and Carter committed the offense in count 1 for the benefit of, or at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)) (gang benefit enhancement). The trial court additionally found true allegations Norton had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and one prior prison conviction (§ 667.5, subd. (b)).
The trial court sentenced Carter to a determinate term of three years in prison for count 3 followed by an indeterminate term of 25 years to life in prison for count 1, plus a consecutive term of 25 years to life for the subdivision (e)(1) firearm enhancement. The court stayed the gang benefit enhancement for count 1.

Edward B. Spencer is an inmate at the California Substance Abuse Treatment Facility and State Prison. He filed a petition for writ of mandate in the trial court seeking an order requiring prison staff to comply with various regulations related to inmate complaints and appeals. The trial court denied the writ, concluding that Spencer had failed to exhaust his administrative remedies.

Sixteen-year-old Connor K. was arrested after he engaged in a violent fight with his brother while armed with a baseball bat and a knife. Connor admitted to making a criminal threat (Pen. Code, § 422), and the juvenile court declared him a ward of the court and placed him in his father's custody with probation conditions. Less than two months later, Conner admitted violating his probation conditions. After he completed a short-term program, Connor was placed with his father, but soon after violated his probation conditions. The court then committed Connor to the Breaking Cycles program for not more than 150 days. (Welf. & Ins. Code, § 726, subd. (a)(2).)[1]
On appeal, Connor contends the court abused its discretion in placing him in the Breaking Cycles program without properly considering the less restrictive drug court program. We reject this contention. The juvenile court considered the relevant factors and did not abuse its discretion. We affirm.

An information charged Adrian Arroyo with two counts of robbery (Pen. Code,[1] § 211), one count of attempted robbery (§§ 664/211), and alleged as to each count that the offense had been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). On March 14, 2011, Arroyo pled guilty to all charges and allegations, in exchange for an indicated prison sentence with a nine-year lid.
On April 26, 2011, Arroyo sent the trial court a letter requesting that different counsel be appointed and that he be allowed to withdraw his plea. After a Marsden hearing,[2] counsel was replaced. Arroyo's new counsel filed a motion to withdraw Arroyo's guilty plea under section 1018, which was denied. Arroyo was sentenced to prison for six years eight months.
On appeal, Arroyo challenges the trial court's denial of his motion to withdraw his guilty plea.[3] Arroyo contends that at the time he entered into the plea he was operating under a mistake of fact; specifically, that he was pleading guilty to a single strike, not three strikes. We determine the trial court did not abuse its discretion in denying Arroyo's motion to withdraw his plea. Accordingly, we affirm the judgment.

This action arises from alleged medical malpractice that occurred when plaintiff Ut Ngo had sinus surgery performed by defendant Donald M. Trotter, M.D.. Nearly a year after Ngo filed his action, he filed a petition to compel arbitration based upon an agreement to arbitrate he signed at Dr. Trotter's office before the sinus surgery. Although there was a provision in the agreement to arbitrate for Dr. Trotter's signature to also agree to arbitration, Dr. Trotter did not sign the agreement.
The court denied the petition, finding that because Dr. Trotter did not sign the arbitration agreement, there was no showing that he intended to be bound by that agreement.
On appeal, Ngo asserts the court erred in denying his petition to compel arbitration because (1) the arbitration agreement was a final written offer to arbitrate by Dr. Trotter, which Ngo accepted by signing the agreement; (2) and denying enforcement of the arbitration agreement would encourage manipulation of the arbitral forum and undermines notions of mutuality. We affirm.

Edward Racek, M.D., appeals from a judgment against him in his lawsuit against Rady Children's Hospital of San Diego (the Hospital) arising out of the Hospital's staffing decision to assign Racek to fewer primary call shifts and more back‑up call shifts in the Hospital's trauma center. As we will explain, we conclude that the trial court properly sustained the Hospital's demurrer to Racek's causes of action alleging violations of antitrust and unfair business practice laws, and that the trial court properly granted summary judgment on Racek's causes of action for breach of oral contract and quantum meruit. Accordingly, we affirm the judgment.

A jury convicted Larry Kinkade Carter and Jonathan Japheth Norton of first degree murder (Pen. Code, § 187, subd. (a); count 1)[1] and active gang participation (§ 186.22, subd. (a); count 3). The jury additionally convicted Norton of being a felon in possession of a firearm (Former § 12021, subd. (a)(1), repealed and reenacted without substantive change as § 29800, subd. (a)(1), by Stats. 2010, ch. 711, §§ 4 [repeal] & 6 [reenactment], eff. Jan. 1, 2012; count 2.)
As to count 1, the jury found true allegations Norton personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) (subdivision (d) firearm enhancement), and Norton and Carter were principals and at least one principal personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (e)(1)) (subdivision (e)(1) firearm enhancement). The jury also found true allegations Norton committed the offenses in counts 1 and 2 and Carter committed the offense in count 1 for the benefit of, or at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)) (gang benefit enhancement). The trial court additionally found true allegations Norton had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and one prior prison conviction (§ 667.5, subd. (b)).
The trial court sentenced Carter to a determinate term of three years in prison for count 3 followed by an indeterminate term of 25 years to life in prison for count 1, plus a consecutive term of 25 years to life for the subdivision (e)(1) firearm enhancement. The court stayed the gang benefit enhancement for count 1.

Following a contested jurisdictional hearing, the juvenile court sustained allegations that the minor, Clinton S., committed a battery with serious bodily injury (Pen. Code, § 243, subd. (d)),[1] assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)) with a true finding he had personally inflicted great bodily injury (id., § 12022.7, subd. (a)), and battery with injury on a school employee (id., § 243.6) with a true finding he had personally inflicted great bodily injury (id., § 12022.7, subd. (a)). The minor appeals the order of the superior court declaring him to be a ward of the juvenile court under Welfare and Institutions Code section 602 contending: (1) there was insufficient evidence that the minor personally inflicted injury; (2) there was insufficient evidence that the minor used force likely to cause great bodily injury; and (3) the juvenile court failed to declare whether the sustained offenses were felonies or misdemeanors. We find the matter must be remanded to the juvenile court for a declaration of whether the battery with serious bodily injury offense is a felony or a misdemeanor. In all other respects, we shall affirm the judgment.