CA Unpub Decisions

A jury convicted defendant and appellant Miguel Angel Melgar of vandalism causing over $400 of damage (Pen. Code, 594, subd. (a)[1]) and assault with a deadly weapon, a sword ( 245, subd. (a)(1)). The jury was unable to reach a verdict on charges that defendant made a criminal threat ( 422) and committed a second assault with the same deadly weapon ( 245, subd. (a)(1)). The trial court sentenced defendant to the middle term of three years for his assault with a deadly weapon conviction and to a consecutive eight-month term for his vandalism conviction. The trial court dismissed the two counts on which the jury was unable to reach a verdict. On appeal, defendant contends that the trial court abused its discretion in imposing a prison term rather than granting him probation. Court affirm the judgment.

Appellant Kareem Jamall Douglas was charged by amended information with 14 counts of second degree robbery. Many of the counts included an allegation that a principal was armed with a handgun. (Pen. Code, 12022, subd. (a)(1).)[1] Count 8 included an allegation that appellant personally used a handgun ( 12022.53, subd. (b)), causing the offense to be both a serious and a violent felony ( 1192.7, subd. (c)(8), 667.5, subd. (c)(8)).
On October 28, 2008, pursuant to a plea bargain, appellant pled guilty to counts 1 and 8 and admitted count 8s firearm allegation. The remaining charges were dismissed. Appellant was sentenced to a total of 14 years in prison. He received, on count 8, the midterm of three years, plus 10 years for the firearms enhancement. A consecutive term of one year was added for count 1. He was awarded 339 total days of presentence custody credits. The preliminary hearing transcript shows that for count 8, appellant pointed a gun at the employee of a liquor store while he and an accomplice robbed the store. For count 1, another accomplice was the gunman and appellant drove the getaway vehicle during the robbery of a different liquor store. Appellant confessed his participation in the crimes. On June 22, 2009, this court granted appellant relief from default for failure to timely file a certificate of probable cause under section 1237.5. Appellants notice of appeal and request for a certificate of probable cause were filed that same day in the superior court. Appellant indicated in his request that he was induced into the plea by misrepresentations of counsel and thought he was pleading guilty only to being an accessory after the fact. Four days later, the superior court denied the request for a certificate of probable cause, and indicated that it had previously denied such a request on April 21, 2009.

Mother appeals from an order of the juvenile court terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, 366.26.) Court affirm.

Appellants Zoila Rivera, Candelarita Arita, Dinora Rivera, and Jesus Velasquez appeal from the denial of their motion to withdraw pleas of no contest entered to one count each of second degree commercial burglary (Pen. Code, 459; 1237.5). They argue that the trial court committed reversible error when it denied their motion to withdraw their pleas after they shared a single interpreter between them at the change of plea hearing. Court find no prejudicial error, and affirm the order denying appellants motion.

D.P. (father) appeals an order of the juvenile court summarily denying his petition pursuant to Welfare and Institutions Code section 388[1]requesting modification of a prior juvenile court order denying father reunification services with his son, Z.R. (child). Court conclude that fathers petition failed to make a prima facie showing that the requested change would be in the best interests of child, such that a hearing was required. Court therefore affirm.

Plaintiffs Lewis and Mary Westlake challenge the judgment in favor of defendants Henry and Dolly Willms, and various other defendants, in plaintiffs action for forcible detainer, forcible entry, conversion, and elder abuse (Super. Ct. No. 153276; Ct.App. No. C058379); and plaintiff Lewis Westlake challenges the judgment in favor of defendant Henry Willms and Sugar Maple Holdings, LLC, in Westlakes subsequent action for forcible detainer (Super. Ct. No. 161805; Ct.App. No. C059434). We consolidated the appeals. For ease of reference, we will refer to the plaintiffs in both actions as Westlake and to the defendants in both actions as Willms. In appeal No. C058379, Westlake contends the trial court erred (1) by refusing to automatically stay the action due to pending appeals; (2) by refusing to grant a continuance; (3) by dismissing the action with prejudice; (4) by ruling certain causes of action were barred by collateral estoppel; and (5) by awarding attorney fees. In appeal No. C059434, Westlake claims the trial court wrongly held the action was barred on the ground of collateral estoppel and thus erred in sustaining Willmss demurrer without leave to amend. For the reasons that follow, Court shall affirmthe judgments.

Ashley Riley appeals summary adjudications for Leonardo Valencia and Kyle Herzig on her claims for sexual harassment under California's Fair Employment and Housing Act (FEHA) (Gov. Code, 12940 et seq.), and intentional and negligent infliction of emotional distress. Riley contends she raised numerous issues of material fact requiring trial. Court affirm the judgments and the order denying her motion for a new trial.

Petitioners and appellants Paul Harper and Michael Daymude (appellants) appeal from the trial courts order denying their amended petition to fix and allow compensation to Paul Harper (Harper), successor in interest to Juanita Lane (Lane), former trustee of the Curtis W. Johnson 1992 Trust (Trust), and compensation and reimbursement for costs to Michael Daymude (Daymude), attorney for former trustee Lane. As discussed below, we conclude that the trial court acted within its discretion in denying all fees, costs and compensation to appellants. Although the former trustee Leon Amov improperly took an early distribution of Trust assets without making provisions to pay the expenses of Lanes life estate, his widow Sharon Amov remedied that error early on in the ensuing litigation. The record clearly supports the trial courts conclusions that the litigation appellants pursued during Lanes trusteeship was brought primarily for the personal benefit of Lane and/or to garner attorney fees for Daymude, rather than to benefit the Trust.

Defendant Douglas Mark Thurber was charged with making criminal threats (Pen. Code, 422) to two female victims Charla Allen and Michelle Velasquez. Allen had numerous phone calls with defendant while he was incarcerated, including some in which she made statements to the effect that she had not taken his threats seriously and was not actually afraid. Accordingly, the jury found defendant not guilty on the count relating to Allen. Velasquez did not testify at trial; over defendants objection, however, a tape of her 911 call was admitted into evidence. The jury found defendant guilty on the count relating to Velasquez. One 5 year serious felony prior conviction enhancement (Pen. Code, 667, subd. (a)) and one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) were found true. Defendant was sentenced to a total of nine years in prison.

In this appeal, defendant and appellant, Louis P. Beltran (hereafter defendant), challenges the 54-year sentence the trial court imposed after a jury found him guilty as charged of two counts of kidnapping in violation of Penal Code section 207, subdivision (a)[1](counts 1 & 2); one count of assault with a firearm in violation of section 245, subdivision (a)(2) (count 3); one count of attempted robbery in violation of sections 664 and 211 (count 4); one count of burglary in violation of section 459 (count 5); and one count of possession of a firearm by a convicted felon in violation of section 12021, subdivision (a)(1) (count 6). The jury also found true firearm use, a prior serious felony conviction, and prior prison term enhancements. Court recount the details of the sentence in our discussion of defendants claims on appeal.

Plaintiff Birgitt Morris[1]appeals judgment entered in favor of defendant Universal Health Services of Rancho Springs, Inc. dba Southwest Healthcare System Inland Valley Medical Center (Hospital). Judgment was entered after the trial court granted Hospitals motion for summary judgment, in which Hospital argued plaintiffs medical malpractice action had no merit as a matter of law. Plaintiff contends she refuted Hospitals summary judgment motion by establishing that Hospital committed numerous violations of the standard of care for hospitals and that the violations resulted in delayed treatment of a nosocomial infection that caused plaintiff to become incontinent. Court conclude summary judgment was properly granted due to plaintiff failing to raise a material triable issue of fact, and affirm the judgment.

This is the second appeal in this case, which involves a home invasion robbery that was thwarted before the defendants entered the home. Having been caught in the act, the defendants attempted to escape from the long arm of the law. Unable to escape, the defendants, Toan Quoc Van, Khoi Van Phan, Nelson Wynn, and Giang Huynh, were charged, tried and convicted. They appealed, and this court affirmed their convictions; however, we remanded the matter with directions to hold a new Pitchess[[1]] motion in conformance with the procedures described in People v. Guevara [(2007)] 148 Cal.App.4th [62,] at pp. 68-69. (People v. Toan Quoc Van, et al., Jul. 23, 2007, E037955 [nonpub opn.], p. 50.). On remand, the trial court conducted two in camera hearings; one on December 7, 2007, and the one on January 25, 2008. According to the courts minute order, it found no disclosable information. The court thereafter reinstated the conviction. Defendant appeals, asking this court to review the record of the in camera hearing to determine if the trial court erred in refusing to disclose complaints made against the named police officers for dishonesty or use of excessive or unreasonable deadly force. The People agree that defendant is entitled to such a review. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)

On November 21, 2006, a complaint charged defendant and appellant Waymon Cheatham with one count of possessing cocaine base for sale under Health and Safety Code section 11351.5. The complaint also alleged that (1) under Penal Code section 186.22, subdivision (b)(1)(A), the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members; (2) under Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), defendant had a prior serious felony (involuntary manslaughter) with a gang allegation; (3) under Health and Safety Code section 11370.2, subdivision (a), defendant had previously been convicted of violating Health and Safety Code section 11351.5; and (4) under Penal Code section 667.5, subdivision (b), defendant had served two prior prison terms.

Mother appeals from the trial courts order terminating her parental rights and selecting a permanent plan of adoption for her son, Samuel. Mothers only argument on appeal is the court erred by not holding a Marsden[2]hearing concerning the removal of her counsel. Court conclude the trial court did not abuse its discretion by not initiating a Marsden hearing. Court affirm the judgment.