CA Unpub Decisions

Plaintiff Patricia Volo sued defendant Stephen Barilleaux to recover for injuries she sustained to her back and neck allegedly from an auto accident caused by defendant. Evidence at trial indicated that plaintiff achieved significant healing and relief from pain by the first year after the accident. From that time, however, her condition deteriorated, eventually culminating in her undergoing two major back surgeries more than five years after the accident. Plaintiff theorized that the surgeries were necessary due to injuries from the accident. Expert testimony from the defense, authorized by the court as an augmentation of defendants original expert witness disclosure after defendant hired new counsel, indicated the surgeries were the result of plaintiffs practice of running long distances on a regular basis. The jury apparently agreed with the defendants expert testimony and rejected plaintiffs theory. It awarded plaintiff past economic damages of only $3,680, an amount roughly equal to the cost of her first year of medical treatment following the accident.
Plaintiff appeals from the judgment, claiming the trial court committed prejudicial error by (1) allowing defendant to augment his expert witness disclosure; (2) precluding plaintiff from attacking defendants expert witness based on the witnesss late entry; (3) precluding plaintiffs treating surgeon from testifying as to the reasonableness of plaintiffs surgical hospital charges; (4) precluding a witness from testifying as to amounts his firm actually paid on plaintiffs behalf for her surgical hospital charges; (5) preventing a witness from identifying himself as a retired judge; and (6) making numerous evidentiary errors that allegedly left the jurors believing the trial court was predisposed against plaintiff. Court conclude the trial court committed no prejudicial error and affirm the judgment.

For many years, persons called for jury duty at the Sacramento County Superior Court were provided with free parking, paid for by the County of Sacramento, either next to the courthouse in a parking lot owned by the County and dedicated to use by jurors or at other locations when that lot is full. In 2003, the County ceased paying for overflow juror parking at locations other than the dedicated lot. Concluding that the discontinuation of such parking violated the Trial Court Facilities Act of 2002 (Gov. Code, 70301 et seq.), the Superior Court obtained an order directing the County to reinstate overflow juror parking at the level that existed on October 1, 2001. The County appeals. For reasons that follow, we reject the Countys contention that such juror parking is not a necessary and suitable facilit[y] for which the County is responsible to provide pursuant to the Trial Court Facilities Act of 2002 (Gov. Code, 70311, subd. (b)); however, we conclude the County is required to provide free overflow juror parking only at the level that was necessary and suitable [based on] judicial and court support positions created prior to July 1, 1996 (ibid.). Thus, Court reverse the order to the extent it compels the County to provide free overflow juror parking as existed on October 1, 2001, and shall remand the matter for further proceedings.

Defendant Wayne Eugene Hill made two payments to a car dealer with checks written on the account of Rachel and Francisco P. The signatures were forged, and another forged check from the account was found in defendants possession. A jury convicted defendant of two counts of second degree commercial burglary, two counts of forgery by possession of a check with intent to defraud, and two counts of identity theft. Finding that defendant had been convicted of a prior serious felony within the meaning of the three strikes law and had served four prior prison terms, the trial court sentenced defendant to state prison for an aggregate, unstayed term of nine years and four months. On appeal, defendant contends that the prior conviction finding was based on improperly admitted hearsay evidence, and that the trial court erred in refusing to admit medical records to show the prior conviction was not a serious felony. Court affirm the judgment.

A jury convicted defendant Gerald Ellis of first degree robbery in concert and first degree murder, and found the murder occurred during the commission of robbery. He was sentenced to state prison for life without the possibility of parole. On appeal, defendant contends there is insufficient evidence to support the robbery-murder special circumstance, and the abstract of judgment contains an error. Court affirm the judgment and direct the trial court to correct the error in the abstract.

D.W. (petitioner), the mother of M.G. and D.G. (the minors), seeks an extraordinary writ to vacate orders of the juvenile court entered at the 12 month review hearing terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Petitioner contends she was not provided reasonable reunification services and that the juvenile court erred by not ordering additional services. Disagreeing with these contentions, Court deny the petition.

This appeal concerns two trials arising from Craig Smith's conduct of driving with alcohol in his system. Smith was arrested shortly after his vehicle was rear-ended by another vehicle. Approximately one hour after the accident, Smith's blood alcohol level was .17. Smith claimed this elevated level was the result of his drinking alcohol immediately after the accident. In the first trial, the jury acquitted Smith of driving with a blood alcohol level of .08 or more (Veh. Code,[1] 23152, subd. (b), hereafter sometimes referred to as "per se DUI"), but could not reach a verdict as to whether he drove under the influence of alcohol ( 23152, subd. (a), hereafter sometimes referred to as "generic DUI"). At the second trial, the jury convicted Smith of driving under the influence of alcohol.
The judgment is reversed.

In this medical malpractice case we affirm a summary judgment granted in favor of a physician who practices as a "hospitalist," a relatively new medical specialty. In general, a hospitalist acts as a patient's primary care physician while the patient is receiving inpatient care at a hospital. Here, the hospitalist admitted a cardiac patient into the intensive care unit (ICU) of a hospital with the understanding her cardiac care would be the responsibility of the cardiology physicians who were treating the patient's existing cardiac condition. Following the patient's admission to the ICU, the patient experienced further cardiac difficulty and ICU nurses contacted a cardiologist on three occasions and provided the patient with the treatment ordered by the cardiologist. The ICU nurses did not contact the hospitalist until, early in the morning following the patient's admission, the patient's heart stopped. The hospital staff was unable to revive the patient and the patient died shortly before the hospitalist was able to return to the hospital.
Judgment affirmed.

M.G. and James P. appeal following the dispositional hearing in the dependency case of their son, Brandon P. They contend the jurisdictional finding is unsupported by substantial evidence and M.G. contends the court erred by removing Brandon from her custody. Court affirm.

Courtney P. and A.P. appeal the findings and orders entered at the hearing on remand following partial reversal of the order denying their Welfare and Institutions Code section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, they ask this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court deny Courtney and A.P.'s requests to review the record for error and to address their Anders issue. (Anders v. California (1967) 386 U.S. 738.) Courtney and A.P.'s counsel also requests leave for them to file a supplemental brief in propria persona. The request is denied.

Gregory A. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny his requests to review the record for error and to address his Anders issue. (Anders v. California (1967) 386 U.S. 738.)
Gregory A.'s counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied.

Defendant was charged with one count of forcible oral copulation of a child under 14 years of age (Pen. Code, 269, subd. (a)(4)), one count of forcible rape of a child under 14 years of age (Pen. Code, 269, subd. (a)(1)), and one count of aggravated sexual assault of a child under 14 years of age (Pen. Code, 269, subd. (a)(3)), as well as allegations of having served two prior prison terms for felony convictions within the meaning of Penal Code section 667.5, subdivision (b). After a jury trial, defendant was convicted on all counts. In a bifurcated court hearing, defendant admitted all prior convictions and prison term allegations. The trial court sentenced defendant to 92 years in state prison and awarded him presentencing custody credits.
Court reject all of defendants claims and affirm the judgment.

On appeal from a jury verdict, defendant Wesley Alex Pearson argues the trial court should have stayed the sentence on his conviction for corporal injury to a cohabitant, as well as the sentence on the related great bodily injury enhancement, pursuant to Penal Code section 654. Defendant also contends the trial court violated his constitutional right to a jury trial by imposing upper term sentences based on facts not found true by a jury. The judgment is affirmed.

In this appeal from an order terminating her parental rights to her daughter, Chelsey W., Deborah D. (mother) contends reversal is required because the court erred in failing to apply the benefit exception set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). Because mother failed to raise the issue below, it has been forfeited. However, even if the issue were not forfeited, the record does not support mothers position. Court therefore affirm the order.

Appellant, Daniel Dale Stinnett, was charged in an information filed June 28, 2006, with attempted murder (Pen. Code, 664 & 187, subd. (a), count one), robbery in an inhabited dwelling acting in concert ( 211 & 213, subd. (a)(1)(A), count two), burglary ( 459, count three), and active participation in a street gang ( 186.22, subd. (a), count four). The information alleged as to counts one, two, and three that appellant personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)), personally inflicted great bodily injury on the victim ( 12022.7, subd. (a)), was personally armed with a firearm ( 12022, subd. (a)(1)), personally used a firearm in the commission of his offenses ( 12022.5, subd. (a)(1)) and committed his offenses in furtherance of a criminal street gang ( 186.22, subd. (b)(4)). On February 27, 2007, appellant entered into a plea agreement. Appellant agreed to plead guilty to counts three and four and to admit the section 12022.5, subdivision (a)(1) and section 12022.7, subdivision (a) allegations. Under the agreement, appellants sentence would be either 11 years 8 months in prison or 13 years in prison. The sentence would be contingent on facts from the probation officers report or a statement in mitigation. Under the agreement, appellant was giving up his right to a jury trial on the issue of aggravating circumstances justifying the upper term. Appellant expressly waived his right to a jury trial on the trial courts application of aggravating circumstances in applying the upper term to his burglary conviction. The court reviewed the consequences of the plea with appellant and his codefendants, including the fact that no defendant would receive probation. The court advised appellant of, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. Appellant pled guilty to counts three and four and admitted the sections 12022.5 and 12022.7 enhancements. On March 27, 2007, the trial court sentence appellant to the upper term of six years on count three, a concurrent term of two years on count four, a consecutive term of three years for the great bodily injury enhancement, and a consecutive term of four years for the gun use enhancement. Appellants total prison term is 13 years. Appellant was awarded applicable custody credits, ordered to pay a restitution fine and victim restitution of $6,474.71. Appellants appointed appellate counsel has filed an opening brief,which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on September 10, 2007, Court invited appellant to submit additional briefing. To date, he has not done so.