CA Pub. Decisions

In this appeal by the People, this court must resolve the following question. Does the superior court have authority, while a defendant is still on probation, to reduce a county jail term imposed as a condition of probation when the defendant has already served the term? For reasons set forth in this opinion we determine that the superior court does not have such authority. Accordingly, we reverse the superior court's order.

A modification decision.

Larry Menke, Inc., doing business as Larry Menke Chrysler, and Larry Menke (collectively, Menke) appeal from a judgment of dismissal after the trial court sustained the demurrer filed by DaimlerChrysler and one of its employees, Louis Stavale (collectively, Chrysler). Menke had intervened as an additional plaintiff in Wester Motors' (Wester's) suit against Chrysler after Chrysler declined to approve Wester's application to transfer its Dodge automobile dealership in Seaside, California, to Menke. Menke contends the trial court erred in concluding its first amended complaint stated no cause of action for violation of Vehicle Code, section 11713.3, subdivision (e),[1] which governs a manufacturer's responsibilities to a franchisee seeking to transfer or assign its interest in an automobile dealership. Menke also challenges the trial court's conclusion its complaint failed to state claims for intentional or negligent interference with prospective business advantage or for tortious interference with the franchise transfer contract agreed upon by Wester and Menke. Because section 11713.3, subdivision (e), applies by its express terms only to franchise transferors -- not their prospective transferees -- and because Menke alleged no independent torts other than the putative violation of the Vehicle Code, Menke's claims fail as a matter of law and the trial court properly sustained Chrysler's demurrer. We therefore affirm the judgment.

In connection with two drive-by shootings against rival gang members, defendant Rene Fuentes was convicted of one first degree murder, three attempted murders, and related charges. His prison sentence includes a life term without the possibility of parole. On appeal, he claims the court gave several incorrect jury instructions. He also makes two constitutional arguments claiming his sentence is erroneous. He acknowledges that the latter arguments are precluded by controlling California authority and asserts them now to preserve them for later review.
We hold in the published portion of our opinion that there is no conflict between Judicial Council of California, Criminal Jury Instruction (CALCRIM) pattern instructions on motive and the mental-state elements of the substantive offense of criminal-street-gang participation or the sentence-enhancement and special-circumstance provisions related to criminal street gangs.
The judgment is affirmed.

In June 1987, when he was 21 years old, Darin Palermo (defendant) fatally shot his former girlfriend, Andrea Naftel (the victim), while she was sitting on the toilet in the bathroom of defendant's apartment.
According to defendant's version of the incident, he and the victim had planned to go target shooting together. Believing that he had emptied the bullets from his revolver, defendant foolishly began to play â€

In June 1987, when he was 21 years old, Darin Palermo (defendant) fatally shot his former girlfriend, Andrea Naftel (the victim), while she was sitting on the toilet in the bathroom of defendant's apartment.
According to defendant's version of the incident, he and the victim had planned to go target shooting together. Believing that he had emptied the bullets from his revolver, defendant foolishly began to play â€

An information accused defendant Chue Vang of violating Penal Code section 288, subdivision (b)(1)[1] (lewd and lascivious acts with a child under 14, accomplished by force, duress, or menace), on or about and between April 15, 2003, and December 31, 2004; the alleged victim was his niece A., aged six at the time of the offense. After trial, a jury convicted defendant of this offense. The trial court sentenced defendant to a state prison term of six years (the middle term).
Defendant contends: (1) The trial court denied defendant his rights to due process, fundamental fairness, and confrontation under the federal and state Constitutions when it found A. competent to testify. (2) The trial court deprived defendant of due process and a fair trial under the federal and state Constitutions by giving the jury the standard instruction on witness credibility (CALCRIM No. 226) and refusing defendant's proposed modification, which would have told the jury that it could reject A.'s account if she testified inaccurately even though she did not deliberately lie. (3) The trial court deprived defendant of due process, a fair trial, and the right to present a defense when it refused to allow defendant's medical expert to testify that A.'s 11-year-old brother was physiologically capable of raping her. (4) Cumulative error compels reversal.
In the published portion of the opinion, we conclude the trial court properly refused defendant's proposed modification of CALCRIM No. 226. In the unpublished portion, we reject defendant's other contentions of error. We shall therefore affirm the judgment.

An information accused defendant Chue Vang of violating Penal Code section 288, subdivision (b)(1)[1] (lewd and lascivious acts with a child under 14, accomplished by force, duress, or menace), on or about and between April 15, 2003, and December 31, 2004; the alleged victim was his niece A., aged six at the time of the offense. After trial, a jury convicted defendant of this offense. The trial court sentenced defendant to a state prison term of six years (the middle term).
Defendant contends: (1) The trial court denied defendant his rights to due process, fundamental fairness, and confrontation under the federal and state Constitutions when it found A. competent to testify. (2) The trial court deprived defendant of due process and a fair trial under the federal and state Constitutions by giving the jury the standard instruction on witness credibility (CALCRIM No. 226) and refusing defendant's proposed modification, which would have told the jury that it could reject A.'s account if she testified inaccurately even though she did not deliberately lie. (3) The trial court deprived defendant of due process, a fair trial, and the right to present a defense when it refused to allow defendant's medical expert to testify that A.'s 11-year-old brother was physiologically capable of raping her. (4) Cumulative error compels reversal.
In the published portion of the opinion, we conclude the trial court properly refused defendant's proposed modification of CALCRIM No. 226. In the unpublished portion, we reject defendant's other contentions of error. We shall therefore affirm the judgment.

A modification decision.

Conservator Fessha Taye brought this litigation on behalf of conservatee Ida McQueen, a mentally and physically disabled elder, against several of McQueen's family members and the family's legal representative.[1] Specifically, it was claimed that these individuals violated the terms of a trust set up for McQueen by her father when they sold the family residence, in which McQueen held a life estate, without her consent or knowledge and then misappropriated the entirety of the sales proceeds for their own use.
Following a jury trial, Taye, on McQueen's behalf (respondent), obtained an award of $99,900 in damages against three of five defendants who proceeded to trial––Alameda County attorney Carol Veres Reed (the family attorney), trustee Ray Blackshire (McQueen's uncle), and Earline Drumgoole (McQueen's sister) (collectively referred to as appellants).[2] The jury found each appellant liable on various causes of action, including financial elder abuse, concealment, conversion, breach of fiduciary duty, and negligence. After the trial, the court awarded respondent $320,748.25 in attorney fees and conservatorship costs.
Appellants have filed this appeal claiming multiple instances of prejudicial error, including that the instructions given to the jury on the collateral source rule and the Rules of Professional Conduct were erroneous. Appellants also claim that the trial court unduly restricted appellant Reed's testimony and barred admission of relevant evidence so that she was not allowed to provide a full explanation on the reasonableness of her actions as it related to the claim of financial elder abuse. Appellants further argue that respondent failed to state a cause of action for conversion, and that the trial court erred in submitting this theory to the jury. Lastly, it is claimed that the attorney fee award was excessive and should be reduced. We reject all of these contentions and affirm.

Conservator Fessha Taye brought this litigation on behalf of conservatee Ida McQueen, a mentally and physically disabled elder, against several of McQueen's family members and the family's legal representative.[1] Specifically, it was claimed that these individuals violated the terms of a trust set up for McQueen by her father when they sold the family residence, in which McQueen held a life estate, without her consent or knowledge and then misappropriated the entirety of the sales proceeds for their own use.
Following a jury trial, Taye, on McQueen's behalf (respondent), obtained an award of $99,900 in damages against three of five defendants who proceeded to trial––Alameda County attorney Carol Veres Reed (the family attorney), trustee Ray Blackshire (McQueen's uncle), and Earline Drumgoole (McQueen's sister) (collectively referred to as appellants).[2] The jury found each appellant liable on various causes of action, including financial elder abuse, concealment, conversion, breach of fiduciary duty, and negligence. After the trial, the court awarded respondent $320,748.25 in attorney fees and conservatorship costs.
Appellants have filed this appeal claiming multiple instances of prejudicial error, including that the instructions given to the jury on the collateral source rule and the Rules of Professional Conduct were erroneous. Appellants also claim that the trial court unduly restricted appellant Reed's testimony and barred admission of relevant evidence so that she was not allowed to provide a full explanation on the reasonableness of her actions as it related to the claim of financial elder abuse. Appellants further argue that respondent failed to state a cause of action for conversion, and that the trial court erred in submitting this theory to the jury. Lastly, it is claimed that the attorney fee award was excessive and should be reduced. We reject all of these contentions and affirm.

A modification decision.

Family Code[1] section 1615, subdivision (c) (section 1615(c)), as amended effective January 1, 2002, creates a presumption â€

A modification decision.