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Decisions in Criminal, Legal Malpractice, Arbitration and Medical Malpractice Matters

By FindLaw Staff on December 09, 2010 | Last updated on March 21, 2019

People v. Shockley, F058249, concerned a challenge to a conviction of defendant for committing a lewd act on a child under the age of 14.  In affirming, the court held that battery is not a lesser included offense to a violation of section 288 because a defendant may violate section 288 without committing a battery, and thus, the trial court did not have a sua sponte obligation to instruct the jury that battery was a lesser included offense to lewd and lascivious conduct.

People v. Labora, E050692, concerned a challenge to a trial court's imposition of a 6-year sentence upon a defendant following a guilty plea on charges of forcible spousal rape, assault with force likely to cause great bodily injury, making a criminal thereat, and false imprisonment.

In reversing, the court remanded the case and directed the trial court to give defendant the opportunity to withdraw his guilty plea.  First, the court held that the People have standing because they are challenging whether the sentence was lawful.  The court also held that defendant's sentence was the product of judicial plea bargaining because the trial court did not simply inform defendant of the sentence he would receive, but rather, by either negotiating with the trial court, or by filling out the form at the low end of the range stated by the trial court, defendant obtained an assurance from the judge relating to sentencing.  Lastly, the court rejected the defendant' claim that if improper judicial plea bargaining occurred, he is entitled to specific performance of the initial indicated sentence of six years eight months.

People v. Jackson, B218372, concerned a challenge to a conviction of defendant for first degree burglary.  In affirming, the court rejected defendant's argument that the jury instructions on the elements of burglary erroneously imposed a presumption that the balcony in this case qualified as a building for purposes of Penal Code section 459 as, whether the balcony was part of the structure was not a jury question and, even had the trial court erred by including the term "balcony" in the definition of burglary, the undisputed evidence is that defendant was halfway inside the apartment and halfway on the balcony when a witness saw him.

Hall v. Kalfayan, B220320, concerned a plaintiff's suit for legal malpractice, claiming that the attorney's failure to timely perform his duties had deprived him of the majority of a testator's estate.  In affirming the trial court's grant of the attorney's motion for summary judgment on the ground that the attorney owed no duty to plaintiff, who was not his client and not the beneficiary of an executed estate plan, the court held that a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator.

Burton v. Cruise, G041835, concerned a challenge to the trial court's denial of plaintiff's arbitration demand, arising from plaintiff's suit for medical malpractice against a plastic surgeon claiming that the doctor negligently perforated her viscus and small bowel during a liposuction, resulting in contamination of her abdominal wall.  In affirming, the court held that substantial evidence supports the trial court's factual determination that plaintiff waived her contractual right to arbitrate her medical malpractice dispute by waiting to pursue arbitration until the virtual eve of trial, long after discovery, including expert discovery, had been completed, and the doctor suffered prejudice by losing whatever time and cost benefits could have been gained through arbitration, and by focusing his litigation efforts on a jury trial rather than an arbitration panel.

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