CA Unpub Decisions

Jesse Y., Sr. seeks extraordinary writ review of a juvenile court order terminating family reunification services for his child, and setting the matter for a permanent plan hearing. (Welf. & Inst. Code, 366.26; Cal. Rules of Court, rule 8.452.) Court deny the petition for extraordinary writ.

In this case concerning medical insurance coverage, plaintiff David E. Henderson (Henderson) sued defendants United Insurance Companies, Inc. (United Insurance), Mega Life and Health Insurance Company (Mega), National Association for the Self-Employed (the Association), and Caroll Nast for intentional misrepresentation (fraud), negligent misrepresentation, and violations of the unfair competition law (Bus. & Prof. Code, 17200 et seq.). The trial court granted summary judgment and judgment on the pleadings in favor of defendants finding, among other things, there were no misrepresentations regarding the insurance Henderson purchased based on the admissible evidence and ruling that Henderson could not amend his complaint regarding his cause of action for violations of the unfair competition law. On appeal from the subsequent judgment, Henderson contends the trial court abused its discretion in excluding portions of his evidence, and the trial court erred in its substantive rulings on summary judgment and judgment on the pleadings. Court conclude the trial court did not abuse its discretion in excluding Hendersons evidence and summary judgment and judgment on the pleadings were proper. As we will explain, there were no triable issues of fact regarding misrepresentations or misleading statements regarding the policy, and the trial court did not abuse its discretion in denying Hendersons leave to amend his complaint regarding the unfair competition cause of action. Court therefore affirm the judgment.

Lloyd B., a minor, appeals from an order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He contends the commitment constituted an abuse of discretion by the court and that remand for a new disposition hearing is required. Court disagree and shall affirm the order of commitment.

A jury found defendant Scott Anthony McCain guilty of second degree commercial burglary (Pen. Code, 459; further undesignated section references are to the Penal Code), receiving stolen property ( 496), and possession of burglars tools, a misdemeanor ( 466). The trial court sentenced defendant to an aggregate term of 16 months in state prison, consisting of the low term of 16 months for burglary, and the low term of 16 months for receiving stolen property, stayed pursuant to section 654. The court imposed no time for the misdemeanor. Defendant appeals, contending (1) the trial court misstated the reasonable doubt standard by instructing the jury with CALCRIM No. 220, and (2) the prosecutor committed misconduct by arguing in such a manner as to lessen his burden of proof and to shift that burden to [defendant]. Court affirm the judgment.

After his motion to suppress evidence was denied, defendant Christopher Charles McKinnie entered a negotiated plea of no contest to receiving stolen property on or about June 15, 2006, and admitted having a prior serious felony conviction. The trial court sentenced him to a stipulated term of two years and eight months in prison. On appeal, defendant contends the trial court should have granted his motion to suppress the fruits of a parole search that was conducted after the expiration of his term of parole. Court affirm the judgment.

Defendant Richard Eugene Mahorney entered a negotiated plea of guilty to second degree robbery (Pen. Code, 211; undesignated section references are to this code) and admitted four prior serious felony convictions within the meaning of sections 667, subdivision (a), 667, subdivisions (b)-(i) and 1170.12, in exchange for dismissal of the remaining count (felony evading). At sentencing, the parties agreed that defendant had three, rather than four, prior serious felonies within the meaning of section 667, subdivision (a). After denying defendants motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced defendant to state prison for an indeterminate term of 25 years to life for the robbery and a determinate term of 15 years for the three prior serious felonies. Defendant appeals. He contends the trial court abused its discretion in denying his Romero motion. Court reject this claim. Defendant also contends and we agree that the abstract of judgment requires correction.

A jury found Andre Jamal Robinson guilty of first degree murder (Pen. Code,[1] 187, subd. (a)) and found that Robinson personally used a firearm during the commission of the offense ( 12022.5, subd. (a).) In addition, the jury found true a special circumstance within the meaning of section 190.2, subdivision (a)(17), namely, that Robinson committed the murder while he was engaged in the commission of a rape ( 261). The trial court sentenced Robinson to life without the possibility of parole.
On appeal, Robinson claims that the trial court erred in failing to instruct the jury sua sponte on the offense of being an accessory after the fact. Robinson also claims that he received ineffective assistance of counsel because his trial counsel failed to request a jury instruction on the offense of accessory after the fact. Court conclude that Robinson was not entitled to have the jury instructed on an offense that is neither a lesser included offense nor a defense to the charged offense. In addition, Robinson claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 224, regarding the manner in which the jury was to consider circumstantial evidence. Court reject this claim as well and affirm the judgment.

Defendant was charged with forcible rape (Pen. Code, 261, subd. (a)(2); count 1);[1]sexual penetration with a foreign object ( 289, subd. (a)(1); count 2); forcible sodomy ( 286, subd. (c)(2); count 3); forcible oral copulation ( 288a, subd. (c)(2); count 4); and kidnapping to commit rape ( 209, subd. (b)(1); count 5). The information charged counts 1 through 4 under the one strike sentencing law, alleging that defendant kidnapped the victim in a manner substantially increasing her risk of harm. ( 667.61, subd. (d)(2).) It also alleged two strike priors, based on defendants prior convictions for robbery. ( 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).)
A jury convicted defendant of the sexual offenses but found him not guilty of kidnapping and found the kidnapping allegation not true. It convicted him of the lesser offense of felony false imprisonment. Defendant admitted the prior conviction allegations. The court sentenced defendant to five consecutive terms of 25 years to life. Defendant filed a timely notice of appeal.

Defendant was charged with six counts of premeditated attempted murder (Pen. Code, 664, 187;[1]counts 1, 2, 3, 4, 5, 8), discharging a firearm at an inhabited dwelling ( 246; count 6), and possession of ammunition by a person prohibited from possessing a firearm ( 12316, subd. (b)(1); count 7). The information alleged that all of the offenses were committed for the benefit of, at the direction of and in association with a criminal street gang. ( 186.22, subd. (b).) As to the attempted murder counts, the information alleged that defendant personally discharged a firearm causing great bodily injury or death. ( 12022.53, subd. (d), 1192.7, subd. (c)(8).) As to the charge of discharging a firearm at an inhabited dwelling, the information alleged that defendant personally used a firearm, within the meaning of sections 667 and 1192.7, subdivision (c)(8).[2] Finally, the information alleged one prior serious felony offense, within the meaning of section 667, subdivisions (a), (c) and (e)(1) and section 1170.12, subdivision (c)(1). A jury convicted defendant on all counts as charged, except for counts 4 and 8. As to those counts, the jury convicted defendant of attempted murder, but found that the crimes were not willful, premeditated and deliberate. The jury found all enhancing allegations true. In a separate court trial, the court found the prior conviction allegation true. The court sentenced defendant to a total determinate term of 33 years eight months, plus an indeterminate term of 150 years to life, plus an indeterminate term of life in prison with a minimum parole eligibility period of 14 years. Defendant filed a timely notice of appeal.

Defendant was charged with first degree residential burglary (Pen. Code, 459) and grand theft of a firearm (Pen. Code, 487, subd. (d)(2)). The trial court granted the district attorneys motion to dismiss the charges due to insufficient evidence. (Pen. Code, 1385, subd. (a).) Defendant petitioned to have his arrest records in the matter sealed and destroyed. (Pen. Code, 851.8, subd. (c).) The trial court denied defendants petition. Defendant contends the trial court erred by denying his petition because he is factually innocent. Court affirm the order denying the destruction of defendants arrest records.

Petitioner Reyna C. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order terminating reunification services as to her children (13-year-old daughter B.F., 9-year-old daughter E.F., 7-year-old son J.F., and 2-year-old daughter M.F) and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues that the juvenile court erred in (1) failing to specify the factual basis for its determination that return of the children would be detrimental to the children, and (2) terminating reunification services. For the reasons provided below, Court reject Mothers challenges and deny her petition.

Appellant Edwin L. Pyle filed this civil action against the City of Fresno (City) after the City allegedly denied his application for approval of a second unit residence on his property. His in propria persona third amended complaint described the second unit residence as a 306 square foot structure with a kitchenette and bathroom with shower stall. The third amended complaint alleged five causes of action. They were entitled: (1) CCP 1085, - Illegal Denial of Building Permit; (2) Govt. Code 815.6 CITY Liability; (3) Govt. Code 820.(a) Illegal Revocation of Electrical Service Meter Permit; (4) Fee Mitigation Act Government Code 66000 66025; and (5) Injunctive Relief. After appellant presented his case at his jury trial, the court granted the Citys motion for nonsuit as to the plaintiffs first, second and fourth cause of action. The trial continued on appellants third cause of action only, and the jury returned a special verdict answering the question Did the plaintiff Edwin Pyle prove by a preponderance of the evidence that the revocation of plaintiffs electrical permit was illegal? with an answer of, No. It is not clear from the record on appeal what happened to appellants fifth cause of action, but it is clear from the judgment that the court granted no injunctive relief (or any other relief) of any kind. The judgment ordered that plaintiff take nothing by reason of his complaint. The judgment is affirmed.

Executor Edwin Pyle appeals from a judgment entered against him after the superior court sustained respondent Jerry E. Henrys demurrer to Pyles third amended complaint. The superior court concluded: The plaintiff has failed to allege sufficient facts to state a cause of action for fraud. Specifically, plaintiff has not adequately alleged damages from defendants allegedly fraudulent conduct. Pyle contends that the superior court erred in concluding that his third amended complaint failed to state facts sufficient to state a cause of action for fraud. As Court explain, Court agree with appellant and reverse the judgment.

Appellant, Jesus O., was charged in a petition pursuant to Welfare and Institutions Code section 602 on November 3, 2006, with obstruction or delaying of a peace officer (Pen. Code, 148, subd. (a)(1), count one)[1]and possession of one ounce or less of marijuana (Health & Saf. Code, 11357, subd. (b), count two). On January 31, 2007, the juvenile court heard appellants suppression motion. On February 8, 2007, the court denied the motion and appellant admitted the allegations of the petition. On April 24, 2007, the juvenile court declared appellant a ward of the court and placed him on probation upon various terms and conditions. On appeal, appellant contends the trial court erred in denying his suppression motion. The juvenile courts judgment is affirmed.