CA Unpub Decisions

This appeal is the second time this lawsuit involving a hospital’s unsuccessful attempt to purchase rural health clinics is before this court. In the first appeal, we reversed a judgment entered pursuant to the original referee’s second revised statement of decision and directed the superior court to “refer the matter to the referee to (1) apply the correct rules of law concerning repudiation, nullification, and anticipatory breach, and (2) clarify the factual and legal basis, if any, for the … injunction .…” (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 532-533.) Unfortunately, the original referee died during the first appeal and was not available to amend his statement of decision in accordance with our instructions. The parties addressed his unavailability by agreeing to have a second referee conduct the further proceedings required by our opinion.

On May 7, 2009, an information charged defendant and appellant Andreas Zepeda Luna with: (1) murder under Penal Code section 187, subdivision (a) (counts 1, 2, 3, 4); (2) willfully and unlawfully killing another without malice but with gross negligence while driving under the influence of alcohol under Penal Code section 191.5, subdivision (a) (counts 5, 6, 7, 8); (3) unlawfully driving a vehicle while under the influence of alcohol under Vehicle Code section 23153, subdivision (a), causing death and bodily injury, with the additional enhancement that defendant personally inflicted great bodily injury upon the victim under Penal Code sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8), as well as that defendant had a blood alcohol concentration of 0.15 or more under Vehicle Code section 23578 (counts 9, 11, 13, 15, 17); and (4) unlawfully driving a vehicle while having more than 0.08 percent blood alcohol level under Vehicle Code section 23153, subdivision (b), and in doing so inflicted great bodily injury under Penal Code sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8), as well as that defendant had a blood alcohol concentration of 0.15 or more under Vehicle Code section 23578 (counts 10, 12, 14, 16, 18).[1]

Appellant G.N. (Mother) appeals from the juvenile court’s October 19, 2011, order terminating parental rights to her then nine-year-old daughter E.M. and selecting adoption as E.M.’s permanent plan. Mother claims that insufficient evidence supports the court’s determination that the parental benefit exception to the adoption preference did not apply, and that the court should have instead selected guardianship or long-term foster care as E.M.’s permanent plan. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B).)[1] We reject this claim and affirm the challenged order.

On February 2, 2009, plaintiff and appellant Sofia Rasheed attended her eighth grade history class. She was chewing gum despite knowing classroom rules forbade it. Her teacher, defendant and respondent Robin Hennen, told her, “‘You remind me of a prostitute chewing her gum.’” Plaintiff immediately swallowed the gum. Plaintiff averred she thereafter began seeing a psychiatrist every other week to deal with the emotional trauma she sustained from the remark.
Plaintiff filed a complaint against Hennen, and defendant and respondent Banning Unified School District (Banning) alleging causes of action for intentional tort (defamation) and negligence. Banning moved for summary judgment on November 19, 2010. Hennen moved for summary judgment on February 16, 2011. On February 22, 2011, the court granted Banning’s motion for summary judgment. Plaintiff moved for reconsideration. The court denied plaintiff’s motion for reconsideration and granted Hennen’s motion for summary judgment. The court entered final judgment on July 8, 2011.

Nicole L. seeks writ review of juvenile court orders at the combined six- and 12-month hearing concerning her sons, four-year-old Braydon S. and six-year-old C.S. (together, the boys). She contends the court abused its discretion by allowing the boys' paternal grandparents to move with the boys to Chicago, Illinois. She argues allowing the paternal grandparents to take the boys to Chicago will prevent her from maintaining beneficial parent-child relationships with them, resulting in her not being able to rebut the presumption of termination of parental rights and adoption at the upcoming Welfare and Institutions Code section 366.26[1] hearing. We deny the petition and deny the request for a stay of the proceedings.

David R. appeals the judgment terminating his parental rights to his son, David R. II (David II). David contends the San Diego County Health and Human Services Agency (the Agency) did not comply fully with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). David correctly notes: there is no ICWA-030 form (Cal. Rules of Court, rule 5.481(a)(4)(A) [Notice of Child Custody Proceeding for Indian Child]) in the record; the Agency based its ICWA notices on inaccurate information; and the Agency did not send ICWA notice to the Comanche Tribe, although David II's mother, who died during the juvenile court proceedings, claimed Comanche Tribe heritage. The Agency concedes it did not send ICWA notices to all of the tribes named in the mother's ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2) [Parental Notification of Indian Status]), and did not provide the court with ICWA notices or a documented explanation why notice was not sent to the Comanche Tribe. The Agency further concedes that a limited remand is necessary to effect and document proper ICWA inquiry and notice.

A jury found Kassandra Villareal guilty of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) not for personal use (Pen. Code, § 1210, subd. (a)) and possessing methamphetamine for sale (Health & Saf. Code, § 11378). The court placed her on three years' probation. Villareal appeals. We affirm.

Anthony Michael Long, Jesse James Preston and Bryant Stephan Johnson (the defendants) entered negotiated guilty pleas to mayhem (Pen. Code, § 203; count 2, victim Michael Bajko; all statutory references are to the Penal Code) and five counts of assault with a deadly weapon by force likely to cause great bodily injury (§ 245, subd. (a)(1); count 3, victim Bajko; counts 5 and 7, victim Eric Taylor; counts 6 and 8, victim Scott McPhail). The court sentenced Long and Preston to eight years in prison: the eight-year upper term for mayhem, four concurrent three-year middle terms for assault and a stayed term (§ 654) for the assault in count 3. The court sentenced Johnson to 11 years in prison: the eight-year upper term for mayhem; three consecutive one-year terms (one-third the middle term) for the assaults in counts 5, 6 and 7; a concurrent three-year middle term for the assault in count 8; and a stayed term (§ 654) for the assault in count 3. The defendants appeal. We affirm.

Pablo Santiago pleaded guilty to reckless driving while evading an officer (Veh. Code, § 2800.2, count 1) and operating a motor vehicle under the influence of a drug (Veh. Code, § 23152, subd. (a), count 6), and admitted a prior strike conviction allegation (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 & 668).[1] As part of the plea, the People dismissed the remaining charges for unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 2); knowingly obtaining, concealing, selling or withholding a stolen vehicle from the owner (§ 496d, count 3); receiving stolen property (§ 496, subd. (a), counts 4 and 5); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 7); unauthorized possession of a hypodermic needle or syringe (former Bus. & Prof. Code, § 4140, count 8); and driving without a license (Veh. Code, § 12500, subd. (a), count 9). Santiago signed a Harvey[2] waiver and the court sentenced him to prison for four years. Following an evidentiary hearing, the court ordered Santiago to pay $1,695.00 in victim restitution to the owner of the stolen vehicle in which he was apprehended. (§ 1202.4, subd. (f).)

The Board of Parole Hearings (Board) “grappled back and forth” before denying parole to petitioner David Gary Peaslee who was found to be “very, very close” to receiving parole for a second degree murder committed in 1981. The Board ultimately concluded that petitioner posed a threat to public safety because he did not begin participating in substance abuse programs until 2008. The Board reasoned that petitioner’s delay in enrolling in substance abuse programs meant that he had not yet had enough self-help programming to ensure his gains from the programs would be “maintained over time.” The Board also considered static factors including the nature of the commitment offense, the trivial motive for the murder, and petitioner’s pattern of escalating criminality based on his juvenile record and unstable social history.

Appointed counsel for defendant Rodney Taurez Simmons 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 find no arguable error and no concerns regarding presentence credits. We will affirm the judgment.

Defendant Joseph Patrick Fleharty entered a no contest plea to driving with a blood-alcohol level of 0.08 percent or higher and causing injury and admitted he personally inflicted great bodily injury on an elderly person. The trial court sentenced him to eight years in state prison and suspended execution of the sentence, placing defendant on eight years of formal probation. Thereafter, defendant was found in violation of his probation and the trial court ordered execution of the previously suspended prison sentence.

On December 16, 2008, a jury found Anthony Nguyen (Nguyen) guilty of willful, deliberate, premeditated, attempted murder (Pen. Code, §§ 664/187, subd. (a)),[1] during the commission of which he inflicted great bodily injury (§ 12022.7, subd. (a)) by using a deadly and dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)) (Count 1), and assault with a deadly weapon, a garden hoe (§ 245, subd. (a)(1)) (Count 2). Nguyen filed a timely notice of appeal. We affirmed. Nguyen then filed several post-judgment motions pursuant to section 1237, subdivision (b).[2] We find the motions to be without merit and affirm the judgment.

Salvador Merced appeals from the judgment entered after he was convicted of two aggravated assault counts, one for using force likely to produce great bodily injury, and the other for using a firearm. We reject his contention that the trial court erred by allowing into evidence the preliminary hearing testimony of the victim due to her unavailability as a witness. We also reject his contentions that he could not be convicted of both assault counts because they arose from the same incident, and that the trial court erred by allowing into evidence bullets found in the back seat of his friend’s car. Therefore, we affirm the judgment.