CA Unpub Decisions

Stephen Jagemal Gill appeals from a judgment extending his commitment as a mentally disordered offender (MDO) under Penal Code section 2970. Gill contends (1) "the improper use of hearsay evidence pervaded the trial to [his] prejudice;" and (2) the jury was improperly instructed regarding the burden of proof. Court affirm.

Sharon Taylor Attal petitioned the superior court to disinter the body of her mother, Joan Taylor, so that it could be re-interred with Sharon's deceased brother, Mark Taylor. John Taylor, another of Sharon's brothers, filed a cross-petition requesting that Mark's body be disinterred so that it could be reinterred with Joan's. Sharon appeals the superior court order denying her petition and conditionally granting John's cross-petition. She contends that (1) she was not required to obtain court approval before having Joan's body exhumed and reinterred; (2) the superior court abused its discretion in denying her petition; (3) the court lacked subject matter jurisdiction over John's cross-petition, which she contends required the resolution of religious disputes; (4) the court lacked personal jurisdiction over her as to John's petition; (5) John lacked standing to bring his cross petition; (6) the court violated her due process rights as to the hearing on John's petition; and (7) the court abused its discretion in granting John's petition. Court find her arguments unavailing and affirm the order.

Defendant and two accomplices conspired to lure a drug dealer into a motel room and rob him. During a struggle to subdue the victim, defendant shot him in the head. The victim survived, although he was left a near quadriplegic; at trial, he identified defendant as the shooter. One of defendants accomplices his girlfriend, Kimberly Sue Bergeon also identified defendant as the shooter. Defendant, testifying at trial, denied intending to rob or to shoot the victim; he claimed that he was just trying to collect a debt, when the gun went off by accident.
If defendant succeeded in showing a case for substitution of counsel, for purposes of bringing a new trial motion, either the motion would be meritorious, or it would not. Again, in either case, the proceedings would not be long delayed to make that determination.

A jury convicted three defendantsArthur Albert Rios (Rios), Buddy Paul Verlade (Buddy), and Paul Gilbert Verlade (Paul)of second degree murder for their participation during a bar fight in the killing of Raul Payan (Payan), the boyfriend of defendant Rioss estranged wife. The court sentenced each defendant to a sentence of 15 years to life. On appeal, Buddy raises issues involving prosecutorial error, ineffective assistance of counsel, aiding and abetting, insufficiency of evidence, and possible juror misconduct. Rios independently raises an issue involving ineffective assistance of counsel. Paul makes an argument regarding self-defense. Defendants join in one anothers arguments to the extent they are applicable. Court reject all these contentions and affirm the judgment against defendants.

Defendant, Ulises Antonio Vizcaino, Jr., appeals from convictions for being an ex-felon in possession of a firearm (Pen. Code, 12021, subd. (a)), and unlawful possession of ammunition while being prohibited from possessing a firearm (Pen. Code, 12316, subd. (b)), following a jury trial. He was sentenced to 32 months in state prison and appeals.

Plaintiff Arturo Baez suffered a spinal injury, rendering him a quadriplegic and dependent on a ventilator. Baez and his wife, Teresa Baez, sued defendant L&L Machinery, Inc., the manufacturer of the industrial gluing press involved in the accident, and other defendants for negligence, products liability and loss of consortium. A jury found in favor of defendant L&L and plaintiffs appeal. Plaintiffs main contentions are the trial court erred by allowing defense testimony about the absence of previous accidents and that insufficient evidence supports the jurys special finding that the press in 2004 was not in substantially the same condition as when it left the factory in 1984. We conclude the evidence was properly admitted and the judgment was amply supported by the evidence. Court affirm.

A jury convicted defendant and appellant Charles Preston Brooks of commercial burglary (Pen. Code, 459; count 1), vandalism ( 594, subd. (b)(2); count 2), and assault with a deadly weapon ( 245, subd. (a)(1); count 3). The trial court found true the allegation that defendant had served a prior prison term. ( 667.5, subd. (b).) The court imposed a total prison term of four years in state prison. In his opening brief, defendant contends: 1) the jury was improperly instructed as to the intent element of assault with a deadly weapon and vandalism, and 2) he was denied his right to a jury trial on the truth of the prior prison term allegation. After reading the respondents brief, defendant withdrew his second argument. Court affirm.

Nicholas W. (Father) appeals from the juvenile courts order terminating his parental rights to his son, I.W. (Welf. & Inst. Code, 366.26, subd. (c)(1).)[1] Father contends the juvenile court erred when it terminated his parental rights because I.W. would benefit from continuing a relationship with Father. ( 366.26, subd. (c)(1)(B)(i).) Latoya G. (Mother) joins in Fathers arguments to the extent that it benefits her. Court affirm the order.

The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in bringing the action to trial. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., 1088; Palmav.U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.) Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order granting summary adjudication and to issue a new order denying that motion.

In this matter, we have reviewed the petition and the opposition filed by real parties in interest. Court have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Court reject the argument that petitioner has waived any right to enforce his default by filing a fourth amended complaint, which includes allegations relating to the first case. Our review of the exhibits makes it clear that petitioner was acting in response to the order vacating the defaults and was merely unifying the pleadings in the event that his challenge to that order failed. Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

This frivolous appeal arises from the trial courts denial of an equally frivolous motion for preliminary injunction and other relief. Appellant David J. Edwards sought the injunctive relief to prevent his examination as a debtor; he essentially contended that he had satisfied the judgment by tendering a bill of exchange. Court affirm the trial courts denial of relief.

Defendant James Wilson Branson was convicted of the first degree murder of his half-brother, Ronald Dean Hibpshman. In addition, the jury found that he intentionally discharged a firearm causing death (Pen. Code, 12022.53, subd. (d)) and personally used a firearm (Pen. Code, 12022.5, subd. (a)). He appeals, claiming the trial court erred in ruling that his expert was not qualified to testify about the effect of alcohol on Native Americans. Additionally, he asserts the trial court erred in merely staying punishment rather than striking the personal use of a firearm enhancement. Court affirm.

Appellant Janice Lingenfelter contends the superior court erred in sustaining a demurrer to her causes of action against respondent Susan Winter, M.D., a physician who treated her deceased son, Levi. Appellant asserted causes of action for defamation, infliction of emotional distress, deprivation of constitutional rights, and wrongful death based on medical malpractice.
Therefore, the superior court did not err in sustaining the demurrer without leave to amend. The judgment will be affirmed.

Following a jury trial, Michael Lloyd Wynia (appellant) was convicted of (1) two felonies: assaulting a peace officer (Pen. Code, 245, subd. (c)),[1]with an enhancement of great bodily injury ( 12022.7, subd. (a)), and resisting arrest ( 69); and (2) four misdemeanors: two counts of damaging a prison ( 4600, subd. (a)); battery causing injury to a peace officer ( 243, subd. (c)(2); and resisting arrest ( 148, subd. (a)(1)). The trial court sentenced appellant to the midterm of four years on the assault conviction, with a three-year enhancement, plus a consecutive eight months on the felony resisting arrest conviction. He was also sentenced to 30 days with 30 days credit for each misdemeanor.
On appeal, appellant contends the trial court erred when it failed to follow the requirements of section 4011.6, when it failed to hold a competency hearing pursuant to section 1368, and when it granted his Faretta[2]motion. He also contends there was insufficient evidence to sustain his assault conviction. Court disagree and affirm.