CA Unpub Decisions

On March 12, 2009, Rogelio Acosta Pena[1] was convicted of violating Penal Code section 4502, subdivision (b)[2] (manufacture of a weapon while confined in a penal institution). On that date, section 1465.8 required a $20 fee be imposed for court security. After a successful appeal, Pena was re-sentenced on November 12, 2010. On that date, section 1465.8 required a $30 fee be imposed for court security. The trial court imposed the $30 fee. Pena argues the fee should have been $20. He is correct.
Section 1465.8, subdivision (a)(1) states that a fee â€

Following the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1), appellant, Jose O., a minor, admitted allegations that he committed two counts of felony possession of a dangerous weapon (Pen. Code, § 12020, subd. (a)(1), count 1(brass knuckles), and count 2 (butterfly knife)). At the subsequent disposition hearing, the juvenile court reduced both counts to misdemeanors, adjudged appellant a ward of the court, and placed him on probation.
On appeal, appellant's sole contention is that the court erred in denying his suppression motion. We will affirm.

On August 12, 2010,[1] a jury convicted appellant, Sharon Denise Lusk, of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), a felony, and providing false personal identification information to a peace officer (Pen. Code, § 148.9, subd.(a)),[2] a misdemeanor. In a separate proceeding on August 13, appellant admitted three prior prison term enhancement allegations (§ 667.5, subd. (b)). On October 21, the court imposed a sentence of four years four months, consisting of the 16-month lower term on the felony conviction and one year on each of the three prior prison term enhancements, and awarded appellant presentence credit of 297 days, consisting of 199 days of actual time credit and 98 days of conduct credit. The court credited appellant for time served on the misdemeanor.

City of Redlands (the City) petitions for writ of mandate seeking to set aside the trial court's order granting relief to the claimant Donald Ray Bates (Bates) under Government Code section 946.6.[1] We grant the petition, finding that the trial court abused its discretion.

Nolan McHenry, plaintiff and appellant (plaintiff), sued American Medical Response of Inland Empire (AMR), defendant and respondent, for damages based on personal injury that resulted when AMR paramedics transported him to Saint Bernardine Medical Center (SBMC) after he suffered a diabetic seizure.[1] AMR moved for summary judgment on the ground that plaintiff's claim was barred by the statute of limitations. The trial court agreed and granted AMR's summary judgment motion. Plaintiff appeals from the summary judgment entered in AMR's favor.
We conclude, as we explain below, that plaintiff's claim is barred by the one-year limitations period set out in Code of Civil Procedure section 340.5. Therefore, we will affirm the judgment.

James R. Baxter for Plaintiffs, Respondents and Cross-defendants.
In this appeal, defendant, appellant and cross-complainant Rainier Carlsen (defendant), appeals from the default judgment entered against him and in favor of plaintiffs, respondents and cross-defendants Frank and Gilda Spielberg (plaintiffs), on their complaint to quiet title to a piece of real property located near Apple Valley.[1] After the trial court struck defendant's cross-complaint, which defendant filed after plaintiffs' had submitted their documents to obtain defendant's default, defendant also purported to appeal that order. We consolidated the appeals for resolution in a single opinion. We conclude defendant's claims are meritless and therefore we will affirm.

Defendant and appellant Joseph Patrick Simon (defendant) appeals his conviction for second degree murder and assault on a child causing death. He contends that a juror's intentional concealment of information which would have caused his attorney to exercise a peremptory challenge was prejudicial misconduct requiring reversal of his conviction. We agree, and we conditionally reverse his conviction and remand for further proceedings on defendant's motion for a new trial.

A jury convicted Anthony Fletcher of three counts of lewd and lascivious acts upon a female under age 16 and 10 years younger than the defendant (Pen. Code, § 288, subd. (c)(1)), and three counts of annoying and molesting a female under age 18 (Pen. Code, § 647.6, subd. (a)). The court sentenced Fletcher to five years of formal probation and 365 days in the county jail. Fletcher appeals, contending that the trial court committed reversible error by admitting irrelevant and unduly prejudicial evidence against him. We agree with Fletcher and reverse the conviction.

Keith Wayne Sekerke pleaded guilty to battery by a prisoner on a nonconfined person (Pen. Code, § 4501.5; count 1)[1] and possession of a deadly weapon by a prisoner (§ 4502, subd. (a); count 2). At sentencing, the court suspended execution of a stipulated five-year prison term,[2] ordered Sekerke to serve 365 days in jail, imposed fines and placed Sekerke on formal probation for three years. Sekerke's probation officer subsequently arrested him for violating the conditions of his probation. After a hearing, the court revoked Sekerke's probation and executed the previously stayed prison sentence.
On appeal Sekerke challenges the trial court's finding that he failed to complete a program of drug treatment and aftercare as directed by his probation officer, contending that the meaning of "complete" is ambiguous. We affirm the order.

Defendant David J. Gebhardt and his firm, Centara Legal Group, APC (together, Gebhardt), represented plaintiff Gregory D. Buckner in the sale of his bail bond business. After the buyers' default, a third-party creditor of the buyers, United States Fire Insurance (USFI), perfected a security interest in the business assets, which was senior to any security Buckner had in the business.
Buckner filed a complaint against Gebhardt for professional negligence on July 31, 2009. Gebhardt moved for summary judgment (Code Civ. Proc., § 437c, subd. (c) [undesignated statutory references will be to the Code of Civil Procedure]), asserting (1) the applicable one-year statute of limitations (§ 340.6, subd. (a)) barred the action, and (2) Buckner failed to prove a causal connection between Gebhardt's alleged negligence and his injuries. The trial court found the action time-barred and granted Gebhardt's motion for summary judgment, but did not reach the issue of causation.
Buckner appeals, contending the trial court erred in granting the motion because the one-year statute of limitations had not run before he filed his complaint because it was tolled until USFI perfected its security interest in August 2008. We affirm.

Defendant Matthew Duronio appeals from a judgment of conviction after a jury found him guilty of first degree murder and attempted voluntary manslaughter. Duronio used a knife to stab two victims, one of whom died, during a fight that was the culmination of a night of violence between two groups of young men.
On appeal, Duronio contends that the prosecutor committed prejudicial misconduct during her rebuttal argument by commenting on his failure to testify. He also argues that the trial court erred in admitting evidence of a prior uncharged bad act because the prior incident was not sufficiently similar to his conduct in this case to prove his intent on the night of the stabbings. Duronio maintains that the court's admission of this evidence was unfairly prejudicial in that evidence of the prior incident made the jurors believe that he was "more likely to commit premeditated murder to avenge vandalism to his car." Finally, Duronio contends that the cumulative effect of these errors requires reversal.
We conclude that Duronio forfeited the misconduct issue by failing to object to the prosecutor's comments at the time of trial. With respect to Duronio's contention that if this issue is forfeited on appeal, then his attorney provided ineffective assistance by failing to object, we conclude that there is no reasonable possibility that the outcome of the trial would have been different but for defense counsel's failure to object.
As to Duronio's complaint that the trial court should not have admitted evidence of a prior bad act, we agree with Duronio that the trial court abused its discretion in determining that evidence of that incident could be used to prove Duronio's intent to kill during his commission of the charged offenses. Nevertheless, we conclude that the error in admitting the evidence does not require reversal of the judgment.
Finally, we conclude that any cumulative effect of the complained-of errors does not require reversal. We therefore affirm the judgment of the trial court.

A jury convicted David Castanon of assault with a deadly weapon with force likely to produce great bodily injury (Pen. Code[1], § 245, subd. (a)(1)) and battery causing serious bodily injury (§ 243, subd. (d)). The jury also found true an allegation Castanon personally used a deadly or dangerous weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)), but did not find true an allegation Castanon personally inflicted great bodily injury (§ 12022.7, subd. (a)). Castanon additionally admitted having one prior strike conviction (§§ 667, subd. (b)-(i), 668, 1170.12) and two prior prison convictions
(§§ 667.5, subd. (b), 668). The trial court sentenced Castanon to an aggregate term of nine years in prison.
Castanon appeals, contending there was insufficient evidence to support his conviction for battery causing serious bodily injury and the personal use of a deadly or dangerous weapon enhancement. He further contends the trial court prejudicially erred in responding to jury questions about the meaning of "great bodily injury" and the relationship between "great bodily injury" and "serious bodily injury." Alternatively, he contends his trial counsel provided ineffective assistance by failing to object to the trial court's response. We conclude Castanon's contentions either lack merit or that any error was harmless and affirm the judgment.

Kelvin Vincent Foster pleaded guilty to three counts of second degree robbery, and admitted attached firearm enhancements and the truth of prior conviction allegations. He contends the trial court abused its discretion and violated his Constitutional right to due process by declining to hear from his family members at the sentencing hearing. We affirm the judgment.

Aleksei Sviridov, a former police officer, appeals from a summary judgment in favor of defendants City of San Diego (City) and the San Diego Police Department (Department) on his complaint alleging, among other things, wrongful termination, discrimination on the basis of national origin, hostile working environment, and retaliation in violation of California's Fair Employment and Housing Act (FEHA; Gov. Code, § 12900, et seq.). He also challenges an order sustaining without leave to amend City's demurrers to his fifth and ninth causes of action. In part, Sviridov contends the trial court misapplied Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 in sustaining the demurrers, and erred by relying on standards for "at-will" employees in granting summary judgment on his discrimination and retaliation claims.