CA Unpub Decisions

Plaintiff filed a five-count complaint, alleging breach of contract, fraud, breach of the implied covenant of good faith and fair dealing, indemnification, and tortious interference with contractual and business relations against defendants on February 15, 2005. The operative second amended complaint, which added a sixth cause of action for unfair business practices, was filed September 30, 2005. It alleged that the parties entered into franchise agreements in January 2000 and thereafter, but that defendants breached the franchise agreements, made false and misleading representations to induce plaintiff to enter the franchise agreements, interfered with plaintiffs intended sale of the franchise to a third party, and improperly terminated the franchise agreements. Defendants denied the allegations of the complaint and filed a cross-complaint for breach of contract, fraudulent misrepresentation, unfair business practices, contractual indemnity, and professional negligence. The order granting a partial new trial of plaintiffs cause of action for breach of contract is affirmed.

Luis S. was found by the juvenile court to have committed a burglary at Roosevelt Elementary School in Lynwood on June 12 or 13, 2006. An order of wardship previously imposed was continued, and the court further ordered that the minor be placed in a camp community placement program for three months, that he make restitution, and that he perform 120 hours of community service. Among various conditions of probation, the minor was ordered: 15, do not associate with anyone disapproved of by parents; . . . 21, do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate.
Based on In re Sheena K., supra, 40 Cal.4th 875, the Attorney General aptly concedes the minors contention and agrees that the relevant conditions of probation should be revised. Court so order.

Jose Luis Negrete was charged with two counts of making criminal threats (Pen. Code, 422) and two counts of violating a domestic relations restraining order (id., 273.6, subd. (a)). A knife use allegation was charged in conjunction with one of the criminal threat counts. (Id., 12022, subd. (b)(1).) While represented by the public defender, appellant waived his trial rights, pled guilty to the two criminal threat counts, and admitted the knife use allegation. Subsequently, a conflict defense attorney was appointed to investigate whether a plea withdrawal motion should be filed. The judgment is affirmed.

On March 16, 2005, defendant and appellant Anthony Andre de Myers (defendant) pleaded no contest to one count of grand theft of personal property (Pen. Code, 487)[1]and admitted one prior strike conviction ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The trial court sentenced defendant to two years, doubled to four years as a second strike. Defendant was given 597 days of presentence custody credit, consisting of 399 days of actual custody and 198 days of conduct credit.
Defendant now appeals from the trial courts reduction of his conduct credit. We conclude that the trial court failed to follow this courts instruction to review the appropriate documentation concerning the date from which defendants custody credit should be calculated, to again determine, as necessary, defendants custody credit, and to state the basis for the courts determination. Accordingly, Court must again remand for the trial court to determine the date from which defendants custody credit should be calculated.

Appellant Warren J. appeals from the dependency courts order asserting jurisdiction over his daughter, T. J., pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d), and associated orders. Warren contends the court erred reversibly when it impliedly agreed that the prosecutor involved in a criminal proceeding against Warren had the right to obtain a copy of the records of the dependency court proceedings. Warren also contends the evidence is insufficient to sustain the dependency courts jurisdictional findings. Court disagree with both contentions and affirm.

Appellant Darryl H. appeals from the dependency courts order, made at a six-month status review hearing under Welfare and Institutions Code section 366.21, subdivision (e), requiring that visits between Darryl and his son, Bryan H., continue to be monitored. Darryl contends the court erred by failing to order unmonitored visits, and that no substantial evidence supported the dependency courts decision that unmonitored visits would be inconsistent with Bryans well-being. Court disagree and affirm.

Jorge R. (Father) appeals from an April 5, 2007 order terminating parental rights to his daughter, J.H., born in July 2002. He contends that the juvenile court erred in rejecting his collateral attack on all case orders before his first appearance in the case on March 21, 2007, on the ground that he was denied his due process right to notice of those proceedings. Court conclude that any due process violations were harmless beyond a reasonable doubt and affirm the April 5, 2007 order.

A jury found defendant Jacoby Nehamiah Pope guilty of attempting to murder Christopher Howard and discharging a firearm at an occupied motor vehicle, found true charged firearm enhancements, and deadlocked on charges he attempted to murder Michael Gise and Rashad Leone. Sentenced to 58 years eight months to life in prison, defendant appeals. Defendant contends his right to due process was violated by (1) the Peoples failure to (a) preserve his car, which was used in the shooting, (b) provide the defense with information regarding the recovery and torching of [his] car, and (c) tell the defense that law enforcement attempted to interview Troy Wright, a percipient witness; and (2) statements at trial that he was on probation and the implication [he] was a gang member. Finding no constitutional violation, Court affirm the judgment.

A jury found defendants Gabriel Torres Farias and Pedro Sanchez guilty of assault with a deadly weapon (a knife) and by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)),[1]second degree robbery ( 211), kidnapping ( 207, subd. (a)), and making criminal threats ( 422). The jury sustained allegations that Farias personally used a deadly weapon (a knife) and personally inflicted great bodily harm in the commission of the offenses. ( 12022, subd. (b)(1), 12022.7, subd. (a).) The trial court sentenced Sanchez to 10 years and Farias to 14 years in prison. Both sentences included the upper term of eight years for kidnapping.
Defendants appeal, contending the trial court prejudicially erred in (1) refusing to allow them to impeach the victim with his prior inconsistent statements to law enforcement; (2) failing to sua sponte give a unanimity instruction in connection with the robbery and kidnapping charges; (3) failing to sua sponte give an instruction on false imprisonment by violence and menace, a lesser included offense of kidnapping; and (4) imposing the upper term for kidnapping based on the aggravated nature of the offense.
Agreeing with the first contention, Court reverse the judgments against both defendants.

A jury convicted defendant Timothy Barksdale of attempted robbery (Pen. Code, 664, 211)[1]and the trial court found defendant had a prior serious strike conviction ( 667, subds. (a), (b)-(i), 1170.12) and that he had served two prior prison terms ( 667.5, subd. (b)).
Sentenced to 11 years in state prison, defendant contends the trial court (1) abused its discretion in admitting evidence of a letter he had written that inferentially revealed his parole status; (2) prejudicially erred in denying his motion for a mistrial based on misconduct by the prosecutor; and (3) denied him due process by failing to instruct the jury on the asportation element of robbery. Court reject the contentions and affirm.

James R. Meyers[1]filed this action against his employer Burlington Northern Santa Fe Railway Company (BNSF) under the Federal Employers Liability Act (FELA) (45 U.S.C. 51 et seq.) for a work-related injury. After BNSF learned Meyers had a prior bankruptcy proceeding in which Meyers had failed to list his cause of action against BNSF, BNSF brought a motion for summary judgment on the basis of judicial estoppel. The trial court granted summary judgment on that basis and subsequently denied Meyerss motion for new trial.
Meyers appeals, contending judicial estoppel is not appropriate in this type of case, the trial court applied the wrong law in granting BNSFs motion, and Meyerss evidence established the omission of his claim in his bankruptcy schedules was unintentional. Court reverse the summary judgment because Court conclude Meyers established a triable issue of material fact regarding his intent when he omitted the FELA employment claim from his bankruptcy schedules.

Susan M. (appellant), the mother of Scott E. and Jennifer E. (the minors) appeals from orders of the juvenile court terminating her parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, 366.26, 395; further section references are to the Welfare and Institutions Code.) On appeal, she contends that the juvenile courts finding of adoptability is not supported by clear and convincing evidence and that the court erred in failing to find she established an exception to adoption. Court disagree and affirm the orders.

A jury convicted Jesus Camacho of exhibiting harmful matter to a minor (Pen.Code,[1] 288.2, subd. (a)). Camacho subsequently admitted that he had a "serious felony" prior conviction ( 667, subd. (a)(1)), a strike prior (id., subd. (e)(1)), and that he was released on bail when he committed the offense ( 12022.1, subd. (b)). The trial court sentenced him to four years eight months in prison.
We conclude that with the exception of the last contention, Camacho's claims are without merit. With respect to Camacho's admissions to the sentence enhancement allegations, the Attorney General concedes, and we agree, that the trial court failed to deliver the requisite admonitions as required by our Supreme Court. As we are unable to find the failure harmless under the controlling standard of review, Court reverse Camacho's admissions and remand to the trial court for a new adjudication of the allegations, either by admission or trial, and for resentencing. In all other respects, Court affirm the judgment.

Guadalupe M. appeals orders declaring her sons, three-year-old Juan Z. and two year old David Z., dependent children of the juvenile court under Welfare and Institutions Code section 300, subdivision (a) and removing them from her custody. She contends that there is not substantial evidence to show that there is a substantial risk of serious physical harm to the children in her care. Court affirm the orders.