CA Unpub Decisions

A jury convicted Joshua Michael Sebald of second degree burglary (Pen. Code, 459, count 1) and misdemeanor possession of tools with intent to feloniously break or enter into a building ( 466, count 2). The trial court found that he had served two prior prison terms. The court sentenced Sebald to four years in prison.As discussed in detail below, Court reject Sebald's challenges to his conviction. Court agree, however, that the trial court's sentence violates section 654, and consequently stay the imposition of sentence for Sebald's conviction for misdemeanor possession of burglary tools.

Allen H. appeals following the dispositional hearing in the dependency case of his child Taylor H. Allen contends notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was insufficient because complete notices, proofs of service, and return receipts were not filed with the juvenile court, and therefore the court erred by sustaining the petition and ordering Taylor remain in out-of-home care. The San Diego County Health and Human Services Agency (the Agency) properly concedes the point. Allen's counsel, Taylor's counsel and the Agency's counsel have filed a stipulation for immediate issuance of the remittitur, which Court accept. (Cal. Rules of Court, rule 8.272(c)(1).)

Dennis Gary Asbury (Asbury or appellant) appeals from a judgment, after a bench trial, that he was guilty of negligent misrepresentation and that he breached his duties as a real estate broker. Asbury contends that the trial court erred when it concluded that James Arthur Grammer, Sr. (Grammer) invested and lost money on an incomplete real estate transaction (the Shoshone Inn purchase) because of negligent misrepresentations by Asbury. For the following reasons, Court affirm.

This is a mothers appeal from the jurisdictional and dispositional orders of the juvenile court. The juvenile court adjudged appellant Kim M.s three minor children dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b), and ordered family maintenance services be provided. Court conclude the jurisdictional findings of the court are not supported by substantial evidence and reverse.

Defendant Hue Nay shot a teenage boy in the hand and was convicted of assault with a firearm, being a felon in possession of a firearm, and being an active participant in a criminal street gang. He received a prison sentence of 24 years, which included sentence enhancements for personal firearm use and committing the assault for the benefit of, at the direction of, or in association with a criminal street gang. On appeal, he argues that (1) there was insufficient evidence to prove the substantive charge of active gang participation; (2) there was insufficient evidence to prove the gang enhancement; (3) a portion of the testimony of the prosecutions gang expert was admitted into evidence erroneously and was an improper basis for his opinion; and (4) the sentence contravened the United States Supreme Courts recent decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court affirm.

Defendant Phillip James Sheets pleaded guilty to willfully inflicting corporal injury on a spouse or cohabitant and received probation. The felony complaint upon which his plea was based contained a citation error. It referred to Penal Code section 273.5, subdivision (e) (which sets forth sentencing provisions), in the place where it should have referred to subdivision (a) (which describes the substantive offense). The same and other similar citation errors occurred at other points in the proceedings. After violating the terms of his probation, defendant was committed to state prison for a term of four years. He appeals from the order revoking probation and committing him to prison, claiming his conviction and sentence must be set aside because of the citation errors. Court affirm the judgment; the abstract of judgment be amended to cite the correct subdivision.

The People appeal from an order dismissing a complaint in Tulare County case No. 173003 against Megan Roberts Rhea. The trial court dismissed the complaint based on its finding that the complaint in No. 173003 arose from the same course of conduct that resulted in a guilty plea by Rhea in Tulare County case No. 168902. Court reverse.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.450/8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to her children T. and R. We conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

Defendant Alma Prado Vasquez was convicted of conspiracy to possess cocaine for sale, sale or transportation of cocaine, and possession for sale of cocaine (counts 1, 2 and 3, respectively). The jury found true weight enhancements for each count, including, on count 1, that the weight of the cocaine exceeded 80 kilograms (Health & Saf. Code, 11370.4, subd. (a)(6); all further statutory references are to this code). On count 1, defendant was sentenced to a middle term of three years plus 25 years for the weight enhancement. Defendant attacks her 25-year sentence under the enhancement, claiming there was insufficient evidence to satisfy the finding she was substantially involved in the conspiracy, thereby violating due process, and the jury did not make a specific finding of her substantial involvement. Court disagree and affirm.

Plaintiff AAA Blueprint & Digital Reprographics, Inc., sued defendants Jimmy Ibarra and Alliance Reprographics (Alliance) for misappropriation of trade secrets and other causes of action. The court found plaintiffs price list for preferred customers was a trade secret which defendants misappropriated. On appeal defendants challenge the courts factual findings that (1) plaintiff took reasonable steps to preserve the secrecy of the pricing list and (2) the pricing data was not generally known . . . or reasonably ascertainable in the industry. Court disagree with defendants contentions and affirm the judgment.

Pursuant to a plea bargain, defendant Martin Adrian Thoreson was convicted of offenses involving possession of depictions of juvenile sexual conduct. He contends that a $400 restitution fine violated the terms of the plea bargain, and that he is entitled to two more days conduct credit than the trial court allowed. Respondent concedes the second contention. When the matter was first before us we rejected the challenge to the restitution fine while recognizing that a related issue was before the California Supreme Court. That court granted review in this matter and has now transferred it to us for reconsideration in light of the relevant case, People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). Court have concluded that our previous disposition was entirely consistent with Crandell, and therefore again affirm the judgment as modified to correct the conceded error with respect to sentence credits

Defendant, Rusbel Razo Ruiz appeals from a judgment entered after a jury found him guilty of attempted robbery (Pen. Code, 664/211), and found a weapons allegation to be true. (Pen. Code, 12022, subd. (b)(1).) Based on this conviction, defendants probation was revoked in another case arising from a 2002 conviction for possession of a controlled substance. (Health & Saf. Code 11350.) After the trial court denied the defendants motion for new trial based on ineffective assistance of an interpreter, the court sentenced defendant to the midterm on both cases for a total of three years for the burglary and weapons charges and eight months for the possession charge, to be served consecutively. The defendant filed a timely notice of appeal. We appointed counsel to represent defendant in this court. Appellate counsel subsequently filed an amended notice of appeal. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there is no arguable issue on appeal. The judgment is affirmed.

Court here consider the single claim on appeal that the court below erred in directing appellant to pay $752 directly to the victim crime fund. Court conclude that pursuant to Penal Code section 1202.4, subdivision (f)(2) the order was proper.

This is a personal injury action brought by Larry Marshall who was permanently disfigured and lost the sight in one eye. Ellen Barrett, the appellant herein, was convicted and sent to prison for shooting Marshall with a shotgun at close range. Barrett was sentenced to prison and while serving her prison term was sued by Marshall for personal injuries. There are numerous instances of applications to the court below for orders requiring the defendant to comply with requests for admissions and to file answers to interrogatories. Moreover, Barrett refused to complete her deposition and failed or refused to submit to further deposition questioning leading Marshall to move the court for an order terminating sanctions. That order was granted on October 25, 2006. Notice of entry of judgment was served and filed on October 28, 2006. Barrett purports to appeal from that order and filed her notice of appeal on October 30, 2006. The judgment is affirmed.