CA Unpub Decisions

A jury found James Bruce Reiff guilty, as charged, of five sexual offenses against his 15-year-old niece, S., and the court sentenced him to a 10-year prison term consisting of an eight-year upper term for rape of an intoxicated person (count one, Pen. Code, 261, subd. (a)(3), 264),[1]a consecutive two years as one-third the middle term ( 1170.7, subd. (a)) for penetration of an intoxicated person with a foreign object (count four; 289, subd. (e)), and stayed terms for counts of lewd or lascivious acts with a child age 14 or 15, statutory rape, and penetration of one under age 16 with a foreign object (counts two, three & five; 288, subd. (c)(1), 261.5, subd. (d), & 289, subd. (i)).
Reiff appeals claiming a need for sentence reduction or resentencing due to a violation of his federal jury trial rights under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), in that the court, in choosing the upper term for count one, utilized aggravating factors not admitted or found true by a jury. Court reject his arguments and affirm.

In this employment discrimination action, appellant Mohammed J. Horani, acting in propria persona, appeals from a jury verdict in favor of his employer. Court affirm.

A jury convicted defendant Aaron L. Apodaca of forcible rape and forcible sodomy. (Pen. Code, 261, subd. (a)(2); 286, subd. (c)(2).)[1] The jury found that the sex offenses were committed in the course of the commission of a first degree burglary ( 667.61, subd. (e)(2)), and that defendant personally used a dangerous or deadly weapon in the commission of the sex offenses ( 667.61, subd. (e)(4)). The trial court sentenced defendant to two consecutive sentences of 25 years to life, one for each sex offense.
Defendant raises various challenges to his conviction and sentence. Court reject all but one: the contention that the second consecutive sentence of 25 years to life was not authorized by statute. The Attorney General concedes error on this issue. Accordingly, Court remand for resentencing.

Klara Szanto died on December 5, 2005. Thereafter, Klaras husband Paul and their son Victor filed a petition to confirm that Klara and Pauls home in Hillsborough (the Hillsborough property) was an asset of the Paul and Klara Szanto Revocable Trust (the Szanto Trust). Peter Szanto, another son of Klara and Paul, responded by filing a petition under Probate Code section 21320 (section 21320), pursuant to which he sought declaratory relief that he could oppose the trust asset petition without violating a no contest provision in Klaras will. The probate court filed an order confirming that the Hillsborough property was a trust asset and denying Peters section 21320 petition. Court reverse the part of the order confirming that the Hillsborough property is a trust asset but otherwise affirm.

A mother appeals the termination of her parental rights on the ground that the juvenile court erred by denying a continuance of the Welfare and Institutions Code section 366.26 hearing to allow her to present additional evidence regarding the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v). Court affirm.

Appellant Justin Murice Francois entered no contest pleas to first degree burglary (Pen. Code,[1] 459), child abuse ( 273a), and attempted first degree robbery ( 664/211). He also admitted a great bodily injury enhancement ( 12022.7) and use of a firearm enhancement ( 12022.53). Appellant was sentenced to an aggregate term of 16 years and four months, consisting of a two-year midterm for the attempted robbery; a 10-year term for the firearm use; a three-year term for infliction of great bodily injury; and a consecutive 16 month term (one-third the midterm) for the child abuse conviction. The court stayed the sentence on the burglary conviction pursuant to section 654. Appellant was represented throughout the proceedings by counsel. His no contest pleas were validly entered. There was no sentencing error. Judgment affirmed.

Plaintiff Dwayne Cedric Burrell appeals from orders of dismissal following the trial courts sustaining, without leave to amend, the demurrer filed by defendants the County of Los Angeles (the County) and Pat Brady. He also appeals from an order of dismissal following the trial courts granting the motion to quash service of summons filed by defendants Doug Smith and David Zamorano. Because we find that Burrells notice of appeal was untimely as to these defendants, we dismiss the appeal as to them. Burrell further appeals from an order of dismissal following the trial courts sustaining, without leave to amend, the demurrer filed by defendants the Los Angeles County Civil Service Commission (the Civil Service Commission), and Frank Binch. Because appellant failed to provide an adequate record on appeal to permit our review of the issues involved, and also failed to present any legal argument or authority in support of his appeal in this regard, Court affirm the order of dismissal as to the Civil Service Commission and Binch.

Defendant, John Hernandez Lopez, appeals after he was convicted of two counts of gross vehicular manslaughter in violation of Penal Code section 191.5, subdivision (a) and he admitted more than one victim was killed during one instance of driving. (Veh. Code, 23558.) He contends: imposition of the upper term based upon facts found by the court violated his Fourteenth Amendment due process rights; the sentence violates Penal Code section 654, subdivision (a); and the consecutive sentences were based on an improper factor and violated due process. Court affirm.

Fausto G. appeals an order of the juvenile court declaring Gabriella G. and Vladimir G. dependent children under Welfare and Institutions Code section 300, subdivisions (d) and (j). Court reject Fausto G.s claims of error and affirm the order.

Defendant and appellant Crane Company appeals from a judgment following a jury trial in favor of plaintiffs and respondents Peggy Irene Norris,[1]individually and as successor in interest to the estate of her husband Joseph Henson Norris, and their daughters Karen Lee Norris Francis, Kathy Lynn Norris Riggs, and Patricia Robin Norris Matthews in this asbestos-related personal injury action. Crane contends: 1) there is no substantial evidence that Joseph was exposed to asbestos from Crane products, or that Crane products were a substantial factor in causing his illness; 2) the trial court should not have instructed the jury on the consumer expectations test to determine whether Crane valves were defective; 3) Crane owed no duty to Joseph, because Crane could not have appreciated a risk to bystanders from its use of asbestos; 4) Crane was prejudiced by the trial courts denial of a continuance after Josephs death; 5) Crane was prejudiced by an amendment of the verdict form during deliberations; and 6) the judgment should account for post-verdict compensation that plaintiffs recover from other sources. Court conclude that substantial evidence supports the jurys findings, the consumer expectations test was appropriate in this case, Crane had a duty to Joseph, and the trial court did not abuse its discretion as to the procedural matters. Therefore, Court affirm.

Alejandro Sandoval was convicted of controlled substance and firearms offenses. On appeal, he contends that the admission of evidence of a prior instance of possession and sales of narcotics and a weapon violated Evidence Code section 1101 and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; that the evidence of the prior acts should have been excluded under Evidence Code section 352; that CALCRIM No. 375 violated his due process rights by creating an improper permissive inference; and that he received ineffective assistance of counsel. Court affirm.

In this action for medical malpractice and loss of consortium, appellants Annette and Kevin Maxwell[1]amended their complaint to name respondent Lori Honeycutt, M.D., as a Doe defendant under Code of Civil Procedure section 474 (the fictitious name statute).[2] The trial court granted Dr. Honeycutts summary judgment motion on grounds that: (1) the fictitious name statute was inapplicable because plaintiffs were not ignorant of Dr. Honeycutts identity or the facts giving rise to a cause of action against her when their original complaint was filed; and (2) without the relation-back provision of the fictitious name statute, the amended complaint against Dr. Honeycutt was barred by the applicable statute of limitations ( 340.5). Court affirm the judgment.

Pedro Lavin Rivera and a confederate, apprehended for robbing six banks in Los Angeles County, were charged by information with 12 counts of second degree robbery (Pen. Code, 211). As to each count the information specially alleged one or more firearm-use enhancements (Pen. Code, 12022, subd. (a)(1), 12022.53, subd. (b)).Rivera pleaded not guilty and denied the special allegations.
Rivera was originally represented by appointed counsel, but he asserted his Sixth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] to represent himself on March 24, 2006; and the trial court granted his request. The judgment is affirmed.

Plaintiff and appellant Rome Gagliano sued Angelica Textile Services, Inc. for age discrimination in violation of Government Code section 12940, subdivision (a). Angelica moved for and obtained summary judgment. On appeal, Gagliano contends that the trial court made what he characterizes as four errors of law and one error of fact, precluding summary judgment. Court affirm.