CA Unpub Decisions

Defendant and appellant Richard Eugene Clarkebey appeals after he was convicted at his first trial of battery on a police officer (Pen. Code, § 243, subd. (b)); and at his second trial of driving under the influence of alcohol and causing injury to another person (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level above 0.08 percent (Veh. Code, § 23153, subd. (b)). Defendant contends that the trial court erred in declining to exercise its discretion to dismiss defendant’s strike prior; the abstract of judgment should be corrected to show a stayed sentence on one of the counts; the court improperly stayed, rather than striking, a prior prison term enhancement; and defendant should be awarded additional days of presentence conduct credits. We reject the contentions with respect to dismissal of defendant’s strike prior and the award of additional conduct credits. However, we order the sentence modified to strike the prison term prior, and we order the abstract of judgment corrected to reflect a stay of the sentence on count 2. With these minor modifications, the judgment is otherwise affirmed.

Steven S. appeals from a juvenile court disposition order placing him in an out-of-state program. He contends the court abused its discretion in placing him in the program without having sufficient evidence there were no available, adequate in-state programs in which to place him. We conclude Steven has not established an abuse of discretion on the record presented. We, therefore, affirm the order.

Joseph Emmannuell Thompson pleaded guilty to receiving stolen property (Pen. Code,[1] § 496d), and now appeals the denial of his motion to withdraw his plea. Thompson contends the court abused its discretion in denying the motion because (1) his plea was coerced and offered as a package deal with that of his codefendant brother, Michael Thompson;[2] and (2) he received ineffective assistance of counsel, who failed to advise him fully of the consequences of his plea and improperly negotiated it in the presence of Michael and Michael's counsel. We affirm the judgment.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110, 124 (Kelly).
Having reviewed the record as required by Wende, we have found a significant error. The trial court wrongly found defendant in violation of probation on case No. CM032095 based on a crime he committed before he was on probation. We also note that the trial court erred by “staying” the Penal Code section 667.5, subdivision (b) prior prison commitment enhancement in case No. CM034094.
Accordingly, we vacate the probation violation and strike the corresponding prison sentence. As modified, we affirm the judgment. However, we remand the case with directions to the trial court to exercise its discretion to reinstate probation in case No. CM032095 or terminate probation in lieu of defendant’s prison sentence in case No. CM034094. The trial court is also directed to exercise its discretion by resentencing defendant on the prior prison commitment enhancement the court ordered “stayed” in case No. CM034094 or striking it pursuant to Penal Code section 1385, subdivision (a).
We provide the following description of the facts and procedural history of the case. (Kelly, supra, 40 Cal.4th at p. 124.)

Following a jury trial, defendant Ricky Hartway was convicted of two counts of robbery and one count of attempted robbery. The jury also found defendant was personally armed with a firearm during the commission of these crimes. The court sentenced defendant to an aggregate term of six years two months in state prison. Defendant appeals, claiming instructional error and ineffective assistance of counsel.
We affirm.

The father, Pablo U., Sr., appeals from the juvenile court’s jurisdiction and disposition orders. He contends there is insufficient evidence to support the jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b).[1] In terms of the dispositional order, the father argues the juvenile court’s factual findings were insufficient. We affirm the orders.

Jason Mifflin appeals from the judgment denying his petition for writ of mandate brought pursuant to Code of Civil Procedure section 1094.5. The effect of the denial was to sustain his suspension for 40 hours from his employment as a Long Beach Police Officer. Mifflin contends there is no evidence to sustain the charges against him, and the 40 hour suspension was an abuse of discretion. Finding no error, we affirm.[1]

Appellant Adam Manuel Alvarez challenges his convictions for possession and sale of cocaine, possession of firearms, and unlawful possession of ammunition. He maintains that the gang allegations accompanying his convictions for certain gun-related offenses must be reversed due to insufficiency of the evidence and evidentiary error. We reject his contentions and affirm.

Defendant and appellant, Brandon Martin, appeals his conviction, by guilty plea, for possession of a controlled substance (Health & Saf. Code, § 11350). He was placed on deferred entry of judgment for 18 months.
The judgment is affirmed.

Plaintiffs and appellants Linda Fang and Maria Luisa Raymundo appeal from a judgment in their favor, following a court retrial on the issue of damages to trees on their properties. They contend the trial court erred in its award of damages because: (a) hearsay testimony of defendant and respondent Nazih Abuershard concerning the replacement cost of the trees was improperly admitted; (b) there was insufficient evidence supporting the court’s calculation of damages; and (c) the court incorrectly based its award solely on the fair market value of the trees.
Appellants request reversal of the damages award and take the position that damages should be awarded in an amount consistent with the testimony of their expert. We find no prejudicial error and affirm.

Defendant and appellant David Solomon challenges a jury award against him and in favor of plaintiffs and respondents, a mother and her son, who lived next door to defendant’s partially constructed house. (Defendant did not occupy the property.) Plaintiffs alleged defendant’s negligence in failing to prevent a fire hazard on his property caused them damages when a fire that started on his property spread to their property. The jury awarded a total of $12,883 to the son and $3,400 to the mother. Defendant’s primary contention on appeal is that the court erred in submitting the negligence cause of action to the jury because defendant owed no duty to prevent the harm to plaintiffs as a matter of law.
Defendant contends he owed no duty of care to prevent plaintiffs’ damages since plaintiffs did not sustain the alleged damages on property that defendant owned or controlled, but on their own property. Defendant further argues the law does not impose a duty to warn or protect neighbors from a fire of unknown cause that broke out when he was absent from the property and about which he had no notice. In particular, defendant contends the law does not impose liability for the criminal acts of third parties who may have started the fire while they trespassed on his property.
Contending that plaintiffs knew as well as he did that transients sometimes loitered in his partially constructed dwelling, defendant asserts he had no duty to warn of the risk that a trespasser might start a fire; therefore, the trial court prejudicially erred in refusing to instruct the jury with CACI No. 1004 in the premises liability series of civil jury instructions concerning the absence of a duty to warn of an open and obvious condition.
Last, defendant asserts error in the admission of evidence to support plaintiffs’ damages claims and also contends no substantial evidence supports the damages award. Finding no error, we affirm the judgment.

By two petitions filed under Welfare and Institutions Code section 602, it was alleged that appellant A.C. had committed possession of marijuana for sale and vandalism with damage exceeding $400. (Health & Saf. Code, § 11350; Pen. Code, § 594, subd. (a).)[1] Following a contested jurisdictional hearing, the juvenile court found the allegations true, sustained the petitions, declared A.C. a ward of the court, and ordered him home on probation.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.