CA Unpub Decisions

Minor Devon M. appeals a true finding in juvenile court of misdemeanor battery (Pen. Code, § 242), which resulted in the court placing Devon on probation for six months. Devon claims he successfully completed a six-month period of informal supervision under Welfare and Institutions Code sections 654 and 654.2.[1] According to Devon, this fact necessitated the dismissal of the pending section 602 petition prior to his trial. We disagree with Devon’s characterization of the record and affirm the judgment. Devon did not successfully complete his six-month supervision period and the court therefore was not obligated to dismiss the petition.

Brian T. (father) appeals from an order terminating parental rights to his five children. (Welf. & Inst. Code, § 366.26.)[1] Father contends the juvenile court’s finding that the children were likely to be adopted was not supported by substantial evidence, and the juvenile court erred in declining to apply the beneficial parent-child relationship and sibling relationship exceptions to adoption. We affirm.

Appellant, Anthony Sonny Carrera, pled no contest to brandishing a weapon (Pen. Code, § 417, subd. (a)(2)(B))[1] and admitted allegations that he committed the offense for the benefit of a street gang (§ 186.22, subd. (d)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm.

In this case, defendants and appellants Monique Yvonne Garcia (hereafter, Defendant Garcia) and Cruz Alonzo Gutierrez (hereafter, Defendant Gutierrez) were convicted by separate juries of attempted murder, assault and active participation in a criminal street gang. Both defendants and the People appeal the judgment.
Defendant Gutierrez contends: (1) his statement regarding gang affiliation during booking was admitted in violation of his Fifth Amendment right against self-incrimination; (2) the trial court erred by failing to instruct the jury on the meaning of the term “in association with any criminal street gang”; (3) there was insufficient evidence to support the gang enhancement; (4) there was insufficient evidence to support his conviction of active gang participation; (5) he was denied due process when the gang expert was allowed to testify that his acts were committed for the benefit of, in association with, or at the direction of a criminal street gang; (6) the prosecutor committed misconduct in failing to properly prepare the witnesses; (7) CALCRIM No. 372 is unconstitutional; and (8) the trial court abused its discretion in denying his posttrial Marsden[1] motion.
Defendant Garcia contends: (1) her convictions must be reversed because the prosecutor presented the jury with a legally incorrect theory of conviction; (2) the prosecutor committed misconduct, violating her constitutional rights, by eliciting evidence that the deputies conducted a probationary search of her home, which was prohibited by the court’s pretrial rulings; (3) the gang expert improperly opined that she was guilty of the attempted murder and felony assault charges; and (4) the cumulative error doctrine applies. Each defendant joins in the issues raised by the other defendant.
The People appeal, contending the trial court’s postverdict dismissal of the gang enhancements and gang offenses constitutes error because there was legally sufficient evidence to support those charges.

A modification decision.

Defendant Theodore Robertson pleaded no contest to burglary of the Roose residence ( "Pen. Code, § 459" Pen. Code, § 459--count one) and to taking and driving a car from the Roose residence ( "Veh. Code, § 10851, subd. (a)" Veh. Code, § 10851, subd. (a)--count two). In the same proceeding defendant also pleaded no contest to burglary of the Hanson residence (Pen. Code, count three) and to grand theft of various items from that home, including a gun (Pen. Code, "§ 487, subd. (d)(2)" § 487, subd. (d)(2)--count four). (Unless otherwise stated, all statutory references that follow are to the Penal Code.) On appeal, defendant contends the trial court erred in failing to stay the sentences imposed on counts two and four pursuant to SEction 654. We agree and direct the trial court to stay the sentences imposed on counts two and four.

Dijon Marquette Biddle was charged in an amended information with willfully inflicting corporal injury on cohabitant Shaunte Manning (Pen. Code, § 273.5, subd. (a))[1] with special allegations he had personally inflicted great bodily injury on her under circumstances involving domestic violence (§ 12022.7, subd. (e)) and had previously suffered a domestic violence conviction (§ 273.5, subd. (e)(1)). Biddle pleaded not guilty and denied the special allegations.
Represented by appointed counsel, Biddle agreed to plead no contest to assault with a deadly weapon (§ 245, subd. (a)(1)) in return for a four-year state prison sentence and dismissal of the original charge. At the time Biddle entered his plea, he was advised of, and stated he understood, his constitutional rights and the nature and consequences of his plea.

Defendant Ajani Salim Fisher was charged by information with one count of murder (Pen. Code, § 187, subd. (a)),[1] with special allegations that his victim was over 60 years old (§ 1203.09, subd. (f)). The jury acquitted defendant of murder, but convicted him of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)) and found the special allegation to be true. At sentencing, the trial court denied probation and sentenced defendant to the high term of 11 years in state prison. On appeal, defendant contends the trial court abused its discretion when it imposed the high term, reasoning that mitigating factors outweighed the factors in aggravation. He also contends the error amounts to a violation of his federal due process rights. Respondent maintains any error was waived when defendant failed to object at the sentencing hearing. We do not find waiver, but we conclude the trial court did not abuse its discretion. We also reject defendant’s attempt to cast his claim of sentencing error as a federal due process claim.

F.R., appellant, born in 1994, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered after the juvenile court sustained the petition alleging he committed second degree robbery (Pen. Code, § 211)[1] and felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), which offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court ordered appellant placed in a camp-community placement program for nine months; set his maximum term of confinement at 29 years and eight months; and awarded him 109 days predisposition custody credit.
Appellant contends the evidence is insufficient to support the true findings on the robbery and assault charges and on the gang-related enhancements. He contends his maximum confinement term was miscalculated, because the term on the assault charge should have been stayed (§ 654) and the gang enhancement, which is a “status” enhancement, should have been applied only once. He further contends he is entitled to an additional 93 days of custody credit.
The People concede the term on the assault charge should have been stayed and contend the maximum confinement term should be modified to 18 years and four months. The People also contend that appellant failed to provide an adequate record to address his custody credit claim. In reply, appellant acknowledges the record is inconclusive and indicates his intent to pursue his claim before the juvenile court.
Based on our review of the record and applicable law, we modify the order to reflect the term on the assault charge is stayed and the maximum confinement term is 18 years and four months. In all other respects, we affirm the order.

F.R., appellant, born in 1994, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered after the juvenile court sustained the petition alleging he committed second degree robbery (Pen. Code, § 211)[1] and felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), which offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court ordered appellant placed in a camp-community placement program for nine months; set his maximum term of confinement at 29 years and eight months; and awarded him 109 days predisposition custody credit.
Appellant contends the evidence is insufficient to support the true findings on the robbery and assault charges and on the gang-related enhancements. He contends his maximum confinement term was miscalculated, because the term on the assault charge should have been stayed (§ 654) and the gang enhancement, which is a “status” enhancement, should have been applied only once. He further contends he is entitled to an additional 93 days of custody credit.
The People concede the term on the assault charge should have been stayed and contend the maximum confinement term should be modified to 18 years and four months. The People also contend that appellant failed to provide an adequate record to address his custody credit claim. In reply, appellant acknowledges the record is inconclusive and indicates his intent to pursue his claim before the juvenile court.
Based on our review of the record and applicable law, we modify the order to reflect the term on the assault charge is stayed and the maximum confinement term is 18 years and four months. In all other respects, we affirm the order.

Plaintiffs and respondents Shaoxing City Maolong Wuzhong Down Products Ltd. and Shui Yan Cheng (Cheng plaintiffs) filed a complaint alleging legal malpractice against defendants Ian S. Landsberg and Landsberg Margulies LLP, and defendants and respondents L. Scott Keehn and Keehn & Associates (Keehn defendants). Appellants Ian S. Landsberg and Landsberg & Associates brought a petition to compel arbitration, relying on an arbitration provision in their fee agreement with the Cheng plaintiffs. The trial court denied the petition. It ruled that Code of Civil Procedure section 1281.2, subdivision (c) applied to preclude arbitration, as a party to the arbitration agreement was also a party to pending litigation with a third party, which arose out of a series of related transactions, and there was a possibility of conflicting rulings on common issues of law or fact.
We affirm. The trial court properly ruled that the Keehn defendants were a “third party” within the meaning of the statute, even though they had a separate arbitration agreement with the Cheng plaintiffs. Moreover, the trial court properly concluded the other statutory requirements were satisfied and acted within its discretion in denying the petition to compel arbitration.

Heather G. appeals from juvenile court orders taking jurisdiction over her two children under Welfare and Institutions Code section 300. She contends the court erred in overruling her demurrer to the petitions, and abused its discretion and violated her constitutional rights by unduly limiting cross-examination of her daughter. She further contends there was insufficient evidence to support the petitions.[1] We affirm.

Two juries convicted defendant and appellant Donyell Ladale Butler of attempted murder, assault with a firearm, and possession of an assault weapon.
He appeals from the judgments and contends that (1) the prosecution committed prejudicial misconduct, (2) the trial court erred by refusing to dismiss two jurors, (3) the trial court erred by refusing defense counsel’s request to instruct the jury on attempted voluntary manslaughter, (4) the trial court erred when it instructed the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony), (5) the trial court erred when it overruled a defense objection to a hypothetical question posed to the gang expert, (6) the trial court erred in calculating the length of the sentence for the gang enhancement on the count for possession of an assault weapon, (7) the trial court erred in failing to award presentence custody credits, (8) there was insufficient evidence that defendant was the shooter, (9) the abstract of judgment should be corrected to reflect the proper sentence on the count for possession of an assault weapon, and (10) the case should be remanded because the abstract of judgment does not accurately reflect the oral pronouncement of the court.
We agree that the trial court imposed an incorrect sentence for the gang enhancement on the count for possession of an assault weapon and modify the judgment. We also find defendant was entitled to presentence conduct credit. In all other respects, we affirm the judgment.

Lindsay Dunlap appeals from the judgment entered upon a jury verdict in favor of Starz Home Entertainment, LLC (Starz) on its complaint against Dunlap alleging causes of action for breach of contract, fraud and negligent and intentional misrepresentation arising out of Dunlap’s sale of a license to certain rights she claimed to own to the “The Man from U.N.C.L.E” and “The Girl From U.N.C.L.E.” (the UNCLE television series). Dunlap asserts several errors on appeal. Specifically she claims that the trial court erred in failing to dismiss or stay the action based on the forum selection clause in the parties’ contract that designated New York as the proper forum for any dispute between the parties. In addition, Dunlap argues that the special verdict the jury used in this case cannot support the judgment because questions in the verdict omitted certain elements of the claims and/or were biased, ambiguous and confusing. Finally she argues that the punitive damage award must be reversed because Starz failed to present sufficient evidence of her ability to pay the award.
As we shall explain, only Dunlap’s argument on the punitive damage award has merit. Accordingly, we reverse the award of punitive damages and affirm in all other respects.