CA Unpub Decisions

Miguel Angel Trelles entered a no contest plea to one count of using a minor as an agent for the sale of methamphetamine. (Health & Saf. Code, 11380, subd. (a).) Trelles also admitted the crime was committed for the benefit of a criminal street gang pursuant to the provisions of Penal Code section 186.22, subdivision (b)(1). In exchange, the prosecutor dismissed the other 13 counts in the information.
The trial court imposed an aggravated sentence of nine years for the underlying crime, enhanced by five years for the criminal street gang allegation, for a total prison term of 14 years. Trelles argues the sentence was imposed in violation of his Sixth Amendment right to a trial by jury.

Jose Angelo Prado entered a plea of no contest to charges that he had willfully inflicted corporal injury on the mother of his children, in violation of Penal Code section 273.5, and had a prior conviction for spousal battery ( 243, subd. (e)(1)). His plea also constituted a violation of his probation in Madera County Superior Court case No. MCR014615, a 2003 conviction for violation of section 273.5, subdivision (a). The trial court sentenced Prado to an aggravated term of four years, with a concurrent term for the violation of probation. Prado asserts his sentence violates his Sixth Amendment right to a jury trial as explained in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. The People argue the appeal must be dismissed because Prado did not obtain a certificate of probable cause from the trial court. Court conclude Prado was required to obtain a certificate of probable cause before pursuing this appeal. His failure to do so requires dismissal of this appeal.

On February 25, 2005, appellant, Adrian Travis Lamont Patton, pled no contest in Fresno County Superior Court case No. F05900348 4 to possession of cocaine base (Health & Saf. Code, 11350, subd. (a)) and to a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). Patton also admitted possession of cocaine base and a prior prison term enhancement in Fresno County Superior Court case No. F0590888 9. Patton was found eligible for Proposition 36 probation. On March 22, 2005, the court suspended imposition of sentence, placed Patton on probation, and ordered him to pay a restitution fine of $200 in each case pursuant to section 1202.4.
Patton owes a single restitution fine of $200 in case No. F05900348 4 and $200 case No. F0590888-9 pursuant to section 1202.4. On remand, the trial court shall strike the additional $200 restitution fine imposed in each case on January 3, 2007, correct its records to show that Patton owes a single section 1202.4 restitution fine in each case, and forward the corrected records to the appropriate authorities. The judgment is otherwise affirmed.

In this dependency proceeding, Raymond M. (appellant) claims notice violations of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Appellant acknowledges that timely notice was given, but claims his name should have been included in the notice. Court disagree and dismiss the appeal.

By information filed December 18, 2006, appellant Ricky Rydale Williams was charged with offenses alleged to have occurred in Kings County on or about November 6, 2006. On January 4, 2007, he agreed to enter into a negotiated disposition which called for a lid of eight years, under the terms of which he would plead to count two, transportation of cocaine, and admit one of two prior narcotics convictions alleged. Count 1, possession for sale of cocaine base, and Count 3, possession of a controlled substance, would be dismissed, and two prison prior allegations would be dismissed. After being duly advised, the defendant entered a plea of guilty to one violation of Health and Safety Code section 11352, subdivision (a), and admitted one Health and Safety Code section 11370.2, subdivision (a) allegation. The remaining counts and allegations were dismissed. Court's independent review discloses no reasonably arguable appellate issues.
The judgment is affirmed.

The court adjudged appellant, L. M., a ward of the court after it found true allegations charging her with battery on a school employee (count 1/Pen. Code, 243.6),[1]disturbing the peace at a school (count 2/ 415.5 subd. (a)(2)), and resisting [2]arrest (count 3/ 148, subd. (a)(1)). On June 1, 2007, the court placed L. M. on probation for a period not to exceed three years. On appeal, L. M. contends: 1) the evidence is insufficient to sustain the courts true finding on the disturbing the peace at a school offense; and 2) she was denied the effective assistance of counsel. Court find merit to L. M.s first contention and reverse the courts findings on count 2. In all other respects Court affirm.

On December 7, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Jerry M., committed forcible rape, a felony (Pen. Code, 261, subd. (a)(2)).[1] At the conclusion of a contested jurisdictional hearing on May 2. 2007, the juvenile court found the allegation true. On June 27, 2007, the juvenile court ordered Jerry committed to the Elkhorn Boot Camp for a term not to exceed 365 days, with credit for time previously served. Upon release from boot camp, Jerry was to complete a sex offender treatment program. Jerrys appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Jerry was advised he could file his own brief with this court. By letter on September 10, 2007, Court invited Jerry to submit additional briefing. To date he has not done so.

Plaintiff Power Fabricating, Inc., (Power) challenges the judgment entered after the trial court sustained the demurrers of defendant Liberty Surplus Insurance Corporation (Liberty) without leave to amend. Powers complaint sought declaratory relief and damages due to Libertys refusal to defend it against a wrongful death action brought by the widow of one of Powers putative employees who was electrocuted while working at a housing development in San Diego County. Liberty contends the allegations in Powers complaint that the decedent was its employee and working within the course and scope of his employment when the accident occurred constitute binding judicial admissions precluding coverage based on the insurance policys employee and workers compensation exclusions.

We conclude Powers allegations do not preclude coverage because other allegations in Powers complaint disclose a triable issue of fact in the wrongful death action which potentially exposes Power to liability covered by Libertys insurance policy. Specifically, the issue is whether the decedent was employed by, and acting on behalf of, a company separate from Power at the time of the accident. Because Power has demonstrated the wrongful death action may result in an award against it falling outside the policys exclusions, the complaint here sufficiently alleges Liberty has a duty to defend Power in that action. Accordingly, we reverse the judgment. Court conclude, however, the trial court properly sustained Libertys demurrer to Powers cause of action for breach of statutory duties because Insurance Code section 790.03, subdivision (h), does not provide a private right of action. Court therefore do not disturb that portion of the trial courts order sustaining the demurrers.

Defendants Elizabeth McMahon and Arnold A. McMahon (the McMahons) appeal from an order denying their anti SLAPP motion to strike libel and invasion of privacy causes of action asserted by plaintiff Peters & Freedman LLP (the law firm). The causes of action are not subject to the anti SLAPP statute because the allegedly defamatory statements do not concern a public issue. (Code Civ. Proc., 425.16, subds. (e)(3) & (e)(4).) Court affirm.

Ricardo Farias Navarro (defendant) was charged by information with unlawful taking of a vehicle, in violation of Vehicle Code section 10851, subdivision (a)[1](count one), receiving stolen property with a prior felony conviction, in violation of Penal Code section 496d (count two), street terrorism in violation of Penal Code section 186.22, subdivision (a) (count three), and possession of burglary tools in violation of Penal Code section 466 (count four). It was also alleged as to counts one and two that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. (Pen. Code, 186.22, subdivision (b)(1).) A jury found defendant guilty on counts one, three, and four. It also found true the gang allegation as to count one. The court sentenced defendant to state prison for a term of nine years. Defendant appeals. He contends there was insufficient evidence for the jury to find that he was guilty beyond a reasonable doubt of either street terrorism or the taking of the vehicle with the specific intent to promote criminal conduct by gang members. Court disagree. Substantial evidence supports the findings. Accordingly, Court affirm.

Salah Hassanein sued his former employer, Warner Bros. Entertainment Inc., and Time Warner, Inc. (collectively Warner), seeking to collect unpaid bonuses for his work as president of Warners international theater operations. The parties reached a settlement on some claims, and agreed to arbitrate others, including their dispute over whether Hassanein was entitled to an additional bonus for his work in Japan. An arbitrator then found in favor of Warner, and awarded attorney fees. Over Hassaneins objections, the arbitration award was confirmed by the trial court. On appeal, Hassanein argues: (1) the arbitrator exceeded his jurisdiction by awarding attorney fees; (2) the trial court should not have confirmed the arbitration attorney fees award; and (3) the trial court erred in granting additional attorney fees to Warner. Court find these contentions lack merit and affirm the judgment.

After the trial court heard and denied a motion to substitute appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), defendant Edgar Viveros entered into a negotiated plea bargain. In exchange for a stipulated five year prison sentence plus payment of restitution, defendant pleaded guilty to sale or transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), possession for sale of methamphetamine (Health & Saf. Code, 11378), reckless evasion of a peace officer causing serious bodily injury (Veh. Code, 2800.3), unlawful vehicle taking with a prior such conviction (Veh. Code, 10851, subd. (a)), and participating in a criminal street gang. (Pen. Code, 186.22, subd. (a))
Defendant waived a probation report and agreed to immediate sentencing. The court pronounced judgment and sentenced defendant pursuant to the plea agreement. Court granted defendant 30 days to file written argument on his own behalf. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Defendant Christopher V., a minor, was alleged to have been in possession of marijuana and of a controlled substance. After his motion to suppress evidence under Penal Code section 1538.5 was denied, defendant admitted the allegations of the petition against him, and was placed on probation. On appeal, defendant argues the trial court should have granted his motion to suppress because the arresting officer did not have reasonable suspicion sufficient to justify the patdown search. Court disagree and therefore affirm. Under the totality of the circumstances, the arresting officer was justified in conducting a patdown search of defendant.

In case number CC459684, defendant Calvin Lovelle Moore pleaded guilty to possession of cocaine (Health & Saf. Code, 11350, subd. (a)), being under the influence of cocaine (Health & Saf. Code, 11550, subd (a)), possession of drug paraphernalia (Health & Saf. Code, 11364) and resisting a peace officer (Pen. Code, 148, subd. (a)(1)). Defendant also admitted one prior strike conviction (Pen. Code, 667, subds. (b)-(i) & 1170.12) and one prior prison term (Pen. Code 667.5, subd. (b)). In case number CC586869, based on a separate incident, defendant pleaded no contest to petty theft with a prior (Pen. Code, 666) and second degree burglary (Pen. Code, 459-460, subd. (b)). Defendant again admitted to a prior strike conviction and prior prison term, and further admitted the allegation that he was out of custody on bail at the time he committed the burglary (Pen. Code, 12022.1).
The United States Supreme Court remanded to this court for further consideration in light of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). After receiving supplemental briefing from the parties regarding the impact of the California Supreme Courts decision in People v. Black (2007) 41 Cal.4th 799 (Black II), Court again affirm.