CA Unpub Decisions

A jury convicted defendant Kenneth Michael Boyle of assault with intent to commit rape (Pen. Code, 220)[1]and attempted kidnapping to commit rape ( 664/209, subd. (b)(1)). As to each crime, the jury found true the allegation that defendant personally used a knife. ( 12022, subd. (b)(1).) The court sentenced him to six years in state prison. He appeals, contending: (1) the evidence was insufficient to support the convictions; (2) the trial court erred in two evidentiary rulings and in not giving a limiting instruction; (3) the trial court erred in not permitting defendant to stand when the jury entered the courtroom; and (4) defendant received ineffective assistance of counsel. Court affirm.

Defendant David Cummings appeals his conviction for possession of cocaine base for sale. At trial, defendant represented himself in pro per. On appeal, he contends his right to counsel and due process rights were unlawfully abridged by the court, and the court abused its discretion in not striking a prior strike. Court affirm and order the abstract of judgment modified.

In the death of his six-month-old son Sean Jr. (Sean), appellant Sean Patrick Bradley was convicted of second degree murder (Pen. Code, 187; undesignated section references are to that code) and assault on a child under age eight in ones custody or care, by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the childs death ( 273ab). Appellant was sentenced to the statutory term of 25 years to life on the section 273ab count; his 15 years to life sentence on the murder count was stayed under section 654.
On appeal, appellant makes three contentions: (1) admission of evidence of prior injuries to Sean was prejudicial error; (2) appellants counsel rendered ineffective assistance by failing to request a limiting instruction concerning the prior injury evidence; and (3) the murder conviction is not supported by substantial evidence of implied malice. Court find these contentions unmeritorious, and affirm.

The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 602,[1]declaring appellant T.H. a ward of the court and ordering him home on probation. T.H. and the Attorney General agree that certain conditions of probation require modification. T.H. also contends that the juvenile court should not have set a maximum term of confinement. Court modify and affirm.

Roobik Thorossian (appellant) appeals, in propia persona, the denial of his application for a restraining order under the Domestic Violence Prevention Act (Fam. Code, 6200 et seq.) against his wife, Eileen Tarverdian (respondent). Court affirm the judgment.

This is an action for violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., by appellant and plaintiff Sheryl Maddox against respondent and defendant Costco Wholesale (Costco) and defendant Rod Skinn. Plaintiff alleges that while she was an employee of Costco she was sexually harassed and harassed in connection with her mental disability. She further alleges that defendants wrongfully terminated her employment in retaliation for her complaints about the harassment. The trial court granted defendant Costcos motion for summary judgment. Court affirm.

On May 3, 2006, an amended information was filed charging appellant Sean Thomas, as well as Wilbur Lawtron Lawson, and Dontae Ray Williams, with the murder of David Avila Rodriguez (Pen. Code, 187, subd. (a)) and robbery (Pen. Code, 211).[1] The information alleged that the murder had been committed during the robbery ( 190.2, subd. (a)(17)). In addition, under both counts, the information alleged that a principal personally used a firearm ( 12022, subd. (a)(1)), and that appellant had suffered two prior convictions within the scope of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).[2] Appellant, Lawson, and Williams pleaded not guilty and denied the special allegations.
Williamss trial was severed from that of appellant and Lawson, who were jointly tried. A jury found appellant guilty of first degree felony murder and second degree robbery, and found true the allegations with respect to both crimes that a principal had been armed with a firearm. Because the jury returned no verdict regarding the allegation that the murder occurred while he committed therobbery, the trial court declared a mistrial as to that allegation. During the bench trial on appellants prior convictions, the trial court found that appellant had suffered a single prior strike.[4] The trial court sentenced appellant to a term of imprisonment of 50 years to life plus one year as to the murder count, and to a four-year term as to the robbery count, which was stayed ( 654). This appeal followed.

A jury convicted defendant Mandy Hoyen To of the second degree murder of Mauson Luong and found that she used a deadly weapon (a knife) to commit the crime. This appeal raises two separate contentions. The first concerns instructional error. Primarily, defendant urges that the trial court committed prejudicial error when it denied her request to instruct about self-defense, imperfect self-defense, involuntary manslaughter and accident. Secondarily, defendant urges that the trial court had a sua sponte duty to instruct on voluntary manslaughter based upon a killing committed in the heat of passion. We find that the contention of instructional error is well-taken because the record contains substantial evidence to support the underlying theories. Further, none of the issues covered by the rejected instructions was raised by the submitted instructions. Consequently, we cannot find that the jury, in convicting defendant of second degree murder, necessarily resolved the factual questions posed by the rejected instructions adversely to her. Instead, we conclude the instructional error was prejudicial because it is reasonably probable that the jury would have rendered a verdict more favorable to defendant had it been properly instructed. Court therefore reverse for retrial. Our disposition renders it unnecessary to discuss defendants second contention of prosecutorial misconduct.

A minor was severely injured when he fell down a steep hill at a public park. He sued the park district alleging a dangerous condition of public property. The district demurred to the minor's second amended complaint pursuant to Government Code section 831.2, providing public entities immunity for injuries arising from a natural condition of unimproved public property.[1] The trial court sustained the demurrer without leave to amend, and judgment was entered against the minor. Court affirm.

Appellant, A.B., a minor, appeals from the order continuing wardship (Welf. & Inst. Code, 602) entered following a violation of probation (Welf. & Inst. Code, 777, subd. (a)) previously granted upon his admission that he committed the offense of unauthorized driving or taking of a vehicle (Veh. Code, 10851, subd. (a)). The court ordered appellant placed in camp.

Deborah Baroi (appellant) appeals from a final judgment entered after the trial court sustained, without leave to amend, the demurrer of respondents Arcadia Unified School District (AUSD), David Vannasdall (Vannasdall), Mary Ann Sund (Sund), Diane Carlile (Carlile), Christina Aragon (Aragon), and Cynthia R. Laureano (Laureano) (collectively respondents), to appellants third amended complaint.[1] Appellant, who was not a member of the Arcadia Teachers Association (teachers association), appeals on the sole ground that the trial court erred in determining that she was required to exhaust the administrative remedies afforded to members of the teachers association. Court affirm.

Frank A. Rothe appeals from orders requiring that he pay his former wifes attorney fees in the amount of $92,552.86 in a lump sum. Court conclude that the trial court failed to exercise discretion when it awarded $92,552.86 in attorney fees without consideration of the requisite statutory factors, and that the court abused its discretion by ordering payment in a lump sum. Court reverse the orders, and remand for further proceedings.

Jose Manuel Gomez appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree robbery, counts 2 and 7 (Pen. Code, 211), with the finding as to each that he personally used a handgun within the meaning of Penal Code section 12022.53, subdivision (b); criminal threats, count 3 (Pen. Code, 422); assault with a semiautomatic firearm, count 4 (Pen. Code, 245, subd. (b)); and burglary, count 5 (Pen. Code, 459), each with the finding he personally used a handgun within the meaning of Penal Code section 12022.5, subdivision (a). Following a court trial, appellant was found to have served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), a prior conviction of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), and a prior conviction of a serious or violent felony within the meaning of the Three Strikes law. (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).) Appellant was sentenced to prison for a total of 31 years and contends the trial court erroneously sentenced him to a full consecutive term on the enhancement attached to count 4 rather than the one-third term required by Penal Code section 1170.1, subdivision (a). For reasons stated in the opinion, Court remand the matter for resentencing and in all other respects, affirm the judgment.

Appellant Encino Tarzana Regional Medical Center (the hospital) appeals from a judgment entered in favor of Dustin Eastborne (respondent) following a jury trial on respondents claim for professional negligence against the hospital. Court affirm.