CA Unpub Decisions

A jury found defendant Michael Leslie Ryall guilty of misdemeanor elder abuse (Pen. Code, 368, subd. (c); further undesignated statutory references are to this code), misdemeanor assault ( 240), misdemeanor threatening with a firearm ( 417, subd. (a)(2)), and felony possession of a firearm by a previously convicted felon ( 12021, subd. (a)). In a bifurcated trial, the court found true a special allegation that he served a prior separate prison term ( 667.5, subd. (b)). The trial court sentenced him to an aggregate prison term of three years. On appeal, defendant makes the following contentions:
(1) the trial court erred by admitting witness testimony that defendant touched the gun, (2) the trial court failed to give the jury a unanimity instruction sua sponte regarding defendants possession of the gun, (3) a statement by the prosecution during closing argument impermissibly shifted the burden of proof to the defense, (4) defendant got two separate convictions for a single count, thus requiring modification of the judgment, (5) the evidence used to prove the prior prison term was insufficient, and (6) the cumulative effect of the foregoing errors requires reversal of the judgment. The People concede defendants fourth contention. We accept that concession and strike defendants conviction for misdemeanor threatening with a firearm. Agreeing with defendants fifth contention that the evidence is insufficient to prove the prior prison term allegation, we reverse the judgment as to that special allegation and strike the one-year sentencing enhancement related thereto. In all other respects, Court affirm the judgment.

Narcotics task force agents executed a search warrant at the home of defendant Forrest Mitchell Barker and found 56 one-gram bindles of methamphetamine, 2.5 grams of marijuana, a loaded rifle, chemicals used for manufacturing methamphetamine, and laboratory equipment. His wife admitted helping defendant manufacture methamphetamine. Defendant entered a negotiated plea of no contest to manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)) and admitted being armed during the offense (Pen. Code, 12022, subd. (a)(1)). (Case No. CM021891.) While defendant was released on his own recognizance pending sentencing in case No. CM021891, agents lawfully searched his home and found glass smoking pipes, drug paraphernalia, items used to manufacture methamphetamine, and a small amount of methamphetamine in a plastic baggie. Defendant entered a negotiated plea of no contest to providing a place for the preparing or storing of methamphetamine (Health & Saf. Code, 11366.5, subd. (a)). (Case No. CM022973.) The judgment is affirmed.

Defendant John Henry Lee entered a plea of no contest to possession of cocaine (Health & Saf. Code, 11350, subd. (a)), receiving stolen property as a misdemeanor (Pen. Code, 496, subd. (a)),[1]and misdemeanors of resisting a peace officer (id., 148, subd. (a)(1)) and providing false identification (id., 148.9, subd. (a)). Defendant waived his right to a jury trial, and the trial court found allegations true that he had served four prior prison terms (id., 667.5, subd. (b)) and had a prior strike conviction (id., 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). According to facts set forth in the probation report, the charges stemmed from an incident in which defendant attempted to sell a stolen cell phone back to its owner. When a sheriffs deputy approached him at a prearranged meeting place, defendant pulled free from the deputy and ran. After defendant was tazed to secure his compliance with being handcuffed, he was taken to a hospital, where he falsely identified himself to hospital staff. At the hospital, defendant was found to have a white chunk of cocaine clenched in his fist, and later at the jail, another baggie containing a white chunky substance was found in his sock.

Appellant, Jason S., the father of minors Carissa S. and Alyssa S., appeals from orders of the juvenile court terminating his parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, 366.26, 395.)[1] On appeal, appellant contends the juvenile court erred in failing to find he established an exception to adoption. Court reject the contention and affirm.

Jacques M. (the minor) admitted he had committed felony vandalism. (Pen. Code, 594, subd. (b)(1).) The allegation was based on an incident in which the minor threw eggs and other substances at the victims house and car. The minor initially was placed on informal supervision (Welf. & Inst. Code, 654.1, subd. (a)), but subsequently was adjudged a ward of the court after he admitted committing new offenses. Following a restitution hearing regarding the vandalism offense, restitution was set in the amount of $3,160.64 based on repair estimates prepared by the victims insurance company. The orders of the juvenile court are affirmed.

Jacques M. (the minor) admitted he had committed felony vandalism. (Pen. Code, 594, subd. (b)(1).) The allegation was based on an incident in which the minor threw eggs and other substances at the victims house and car. The minor initially was placed on informal supervision (Welf. & Inst. Code, 654.1, subd. (a)), but subsequently was adjudged a ward of the court after he admitted committing new offenses. Following a restitution hearing regarding the vandalism offense, restitution was set in the amount of $3,160.64 based on repair estimates prepared by the victims insurance company. The orders of the juvenile court are affirmed.

A 17-year-old girl reported that defendant Joseph Arthur Keith had sexual intercourse with her at least twice when she was under the age of 14 and that he was the father of her four-year-old child. Defendant was convicted of two counts of lewd and lascivious conduct on a child under the age of 14 (Pen. Code, 288, subd. (a)), with substantial sexual contact as to each count (Pen. Code, 1203.066, subd. (a)(8)). Finding defendant had two prior serious or violent felonies within the meaning of the three strikes law, the court sentenced him to prison for 50 years to life.
Defendant appealed. He asserted, the People conceded, and this court agreed that one of the prior felony convictions alleged as to count II had to be stricken because it took place after the conduct alleged in count II and, thus, could not be used for sentencing on that count. Accordingly, this court struck the felony conviction in 1994 as to count II only, remanded the matter for resentencing, and otherwise affirmed the judgment. (People v. Keith (Oct. 22, 2004, C039846) [nonpub. opn.].)
The judgment is modified by striking the Penal Code section 1202.45 fine. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

A modification decision.

Sheila Marita Manley appeals a judgment following her jury convictions of assault with a deadly weapon or with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1)) and inflicting corporal injury resulting in traumatic condition on a former cohabitant ( 273.5, subd. (a)). On appeal, Manley contends: (1) the evidence is insufficient to support her convictions; (2) the trial court erred by not sua sponte instructing on lesser included offenses of simple assault and battery; (3) the prosecutor committed Brady[2]error by not timely producing certain notes of the prosecutor's investigator; and (4) the trial court erred by denying her section 4019 conduct credits for presentencing time she spent in residential treatment programs.

Plaintiff Kathleen Christie appeals from the judgment of the trial court in favor of defendant Stephen Krant, M.D., on her causes of action for medical negligence and breach of contract. Dr. Krant performed plastic surgery on Christie in October 2004. Unhappy with the results of the procedures, Christie filed suit against Dr. Krant in December 2005. The trial court granted Dr. Krant's motion for summary judgment as to Christie's claims, concluding that Dr. Krant had presented uncontradicted evidence that he complied with the appropriate standard of care when performing the surgery, and that he had not breached any agreement with Christie.
On appeal, Christie makes a number of arguments, many of which involve the same general issue and either were not raised in the trial court or appear to be beyond the scope of the legal issues Christie raised in her lawsuit. Christie's main assertion is that she presented sufficient evidence to raise triable issues of material fact as to whether she consented to the removal of three pockets of herniated fat from her lower eyelid. Court conclude that Christie has presented no admissible evidence to create a triable issue of fact, and that the trial court did not err in granting summary judgment in favor of Dr. Krant.

Cynthia R. appeals orders terminating reunification services to her at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e).[1] She contends section 366.21, subdivision (e) mandates the continuation of reunification services at the six-month review hearing if the court does not set a section 366.26 hearing. Alternatively, Cynthia asserts the court abused its discretion when it terminated her reunification services while at the same time extending the reunification period for the children's father to the 12-month review date. Court conclude the court's termination of reunification services at the six-month review hearing was authorized under section 366.21, subdivision (e). The juvenile court may, but need not, continue an offer of reunification services to one parent when services are extended for the other parent and no selection and implementation hearing is set. Given that discretion, we further conclude the court here properly terminated Cynthia's services because the evidence showed, despite receiving six months of services, she made no attempt at reunification and was extremely unlikely to do so in the near future.

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Hideo Chino, Commissioner. Petition denied. Alejandra T. seeks review of orders terminating her reunification services regarding the dependency of her son, Patrick T., and referring the case for a Welfare and Institutions Code section 366.26 hearing. She contends the court denied her due process by not allowing her to call her therapist to testify out of order at a jurisdictional hearing. Court deny the petition.

This case involves a buy/sell bonus agreement entered into between Chemicon International, Inc. and two of its employees, Don McCasland and Dale Dembrow (collectively plaintiffs). The agreement[1]essentially provided that McCasland and Dembrow would receive, upon the sale of Chemicon, bonuses equal to eight percent and two percent, respectively, of the net sales price. McCasland and Dembrow eventually sued Chemicon and David Beckman, Chemicons founder, for breach of contract and related causes of action and, after a court trial, judgment was entered in their favor. McCasland and Dembrow were also awarded attorneys fees in an amount corresponding to the contingent fee arrangement they had with their attorneys. On appeal, defendants contend the court erred in interpreting certain terms of the agreement upon which the amount of the bonus was predicated and also challenges the propriety of the fee award. Court affirm the judgment, but reverse for a redetermination of attorneys fees.

A jury found Mark Steven Blair guilty of one count of first degree murder (Pen. Code[1] 187, subd. (a)) and found the murder was committed during a rape by instrument ( 289) within the meaning of section 190.2, subdivision (a)(17)(K). Defendant pled guilty to the charge of being a felon in possession of a firearm. ( 12021, subd. (a)(1); count 2.) The trial court sentenced defendant to life in prison without the possibility of parole for the murder and a concurrent upper term of three years for the firearm possession. On appeal, defendant claims: (1) inadmissible hearsay from the victim was erroneously admitted, (2) improper references were made to a polygraph test defendant took, (3) the trial court erroneously denied his motion for new trial, (4) the trial court failed to instruct the jury that they must find the victim was alive at the time of the unlawful penetration, and (5) the upper term was wrongfully imposed for the firearm possession. Court reject all of defendants claims and affirm the judgment.