CA Unpub Decisions

In this dispute over the ownership and operation of E2 Brokers, Inc. (E2), a closely held corporation, plaintiff Robin Giffin alleged, in essence: (1) he and Jacob Mickalich[1]created E2, then brought in defendant Michael Kehoe to run it; (2) Kehoe cheated Giffin out of his share in E2 and turned it into a personal piggy bank. Claiming breach of fiduciary duty and fraud, Giffin sought damages in excess of $500,000, the imposition of a constructive trust, and a declaration of the parties respective ownership interests in E2.
When a complaint alleges damages in excess of x dollars and the defendant defaults, the maximum damage award the plaintiff may receive is x dollars. Therefore, on remand either the trial court shall enter an award not to exceed $500,000, or Giffin may amend his complaint to specify greater damages; if he does so, however, Kehoes default will be opened. Kehoes default is affirmed.

Defendant David Ellis Jansson blames his three different trial lawyers for his commitment to state prison. In defendants view, if these lawyers had challenged the validity of the diagnoses contained in a diagnostic evaluation, the trial court would not have imposed the stay-away order he repeatedly violated by visiting the victim he abused. We reject this far-fetched notion that the lawyers acquiescence to a diagnostic report constitutes ineffective assistance of counsel and caused defendant to end up in state prison, and accept the Attorney Generals premise that defendant suffered no prejudice even if the evaluation was flawed. Court also reject defendants challenge to the imposition of various costs associated with his probation. Court agree with defendant, however, that he is entitled to an additional day of conduct credit.

Appellant S.L., mother of the minor, appeals from orders of the juvenile court entered at the six-month review hearing returning the minor to her fathers care. (Welf. & Inst. Code, 366.21, subd. (e), 395.)[1]She contends there was insufficient evidence that return of the minor to her care would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the minor. She further contends there was insufficient evidence to support the juvenile courts finding that she had received reasonable reunification services. Court affirm the orders of the juvenile court.

In these consolidated cases we decide principally that a letter from counsel with advice to a group of clients is subject to the attorney-client privilege even though some of the client recipients have disclosed it to the opposing party. Dunmore appeals contending the trial courts orders are unwarranted, procedurally deficient, and improperly prevent it from using the client letters in the litigation or to bring to the attention of the Legislature perceived predatory practices of attorneys who sue home builders. Insofar as the orders are appealable Court affirm them.

Following a bench trial, defendant Aaron Matthew Briones was found guilty of oral copulation of a minor (Pen. Code,

288a, subd. (b)(1); unspecified section references that follow are to this code), sexual penetration of a minor with a foreign object ( 289, subd. (h)), sexual exploitation of a minor ( 311.3, subd. (a)) and invasion of privacy ( 647, subd. (k)(1)). Suspending imposition of sentence, the trial court placed defendant on five years of probation as to the oral copulation and sexual penetration counts and ordered him to serve 365 days in jail for the sexual exploitation count. As a condition of probation, defendant was required to register as a sex offender. ( 290.)
Appealing the trial courts denial of that motion, defendant contends the mandatory sex offender registration provision in section 290 violates equal protection of the law as it applies to him and constitutes cruel and unusual punishment. Court affirm the judgment.

Defendant Kevin Anthony Rutherfords eight year eight month sentence for seven counts of committing a lewd act upon a child (Pen. Code, 288, subd. (c)(1)), eight counts of unlawful sexual intercourse with a minor (Pen. Code, 261.5, subd. (c)), and one count of furnishing marijuana to a minor (Health & Saf. Code, 11361, subd. (b)) was reinstated when he violated the generous terms of probation by testing positive for marijuana use. Court accept defendants argument that the trial court improperly imposed the no-visitation order pursuant to Penal Code section 1202.05 because the victim was over the age of 18 at the time of sentencing, and Court accept the Attorney Generals concession that the trial court improperly imposed a condition of parole that can only be imposed by the Board of Prison Terms. Court reject, however, defendants contention that the imposition of consecutive sentences is unconstitutional because it depends on judicial fact finding.

In San Diego Superior Court case number SCS200997, Michael Timothy Strausbaugh pleaded guilty to receiving stolen property and entered into a written plea agreement with the prosecutor that he would be denied probation and sentenced to 365 days in county jail, to run concurrently with a two-year sentence imposed in a separate proceeding against him for first degree burglary (San Diego Sup. Ct. case no. SCD198252). At his sentencing hearing in the receiving stolen property case, a different judge placed Strausbaugh on summary probation for three years and imposed the stipulated jail time as a condition of probation. On appeal from the resulting judgment, Strausbaugh contends the court improperly departed from the terms of his plea bargain by changing the disposition for the offense from a misdemeanor disposition to a felony disposition without giving him the proper advisements or obtaining his personal consent. We agree that, under the circumstances, the court erred by deviating from the terms of his plea and reverse that judgment with directions set forth below. Based on Strausbaugh's abandonment of his appeal from the judgment in SCD198252, Court affirm that judgment in its entirety.

Terry Leslie Pickens, Jr., (hereafter defendant) asserts on direct appeal and in a petition for writ of habeas corpus that his conviction must be reversed because the prosecutor failed to provide impeachment evidence pertaining to the prosecutions drug expert, in violation of Brady v. Maryland (1963) 373 U.S. 83 (hereafter sometimes Brady), or alternatively because his attorney failed to obtain and introduce available impeachment evidence. We consolidated the habeas petition with the appeal for the sole purpose of determining whether an order to show cause should issue. Court find that defendant has failed to state a prima facie case on either his claim of ineffective assistance of counsel or his Brady claim. Court therefore deny his petition for writ of habeas corpus. Finding no error with respect to defendants other contentions raised in his appeal, Court otherwise affirm the conviction.

This matter, a petition for writ of habeas corpus by inmate James Jaime Soliz, protests the deduction of 30 days of work/behavior credits as a disciplinary matter. Having reviewed petitioners initial petition to this court, Court issued an order to show cause returnable before the superior court. That court conducted proceedings and eventually denied the petition. Petitioner then again sought habeas corpus relief from this court, arguing that the superior court had erroneously denied the petition in part due to the ineffectiveness of appointed counsel.[2] We denied the petition, but our Supreme Court granted review and returned the case to this court with directions that we issue an order to show cause directing respondent the Director of Corrections and Rehabilitation to demonstrate that there was some evidence to support the finding that petitioner committed a serious rules violation on May 28, 2003. Court have done so. Having again examined the record in detail, Court find that the evidence was insufficient to satisfy the legal standard and that the findings and actions of respondent must be overturned.

In this appeal, plaintiff and appellant J. K. (mother) challenges the decision of the superior court to grant a petition for freedom from parental custody and control pursuant to Family Code section 7822[2]regarding her daughter M. (child). The petition was filed by the childs legal guardians, defendants and respondents David and Dianna F. (F.s). Specifically, mother argues that substantial evidence does not support the courts findings that: 1) mother left the child within the meaning of section 7822; and 2) mother had the requisite intent to abandon the child. As discussed below, Court conclude that substantial evidence supports the trial courts findings, and so affirm the judgment.

The sole issue presented on appeal is whether the juvenile court abused its discretion in denying mothers request for a bonding study. Court affirm and find the courts denial was amply supported by substantial evidence.

Jesus A. (Father) appeals from the termination of his parental rights from a Welfare and Institutions Code section 366.26 hearing. , Father appears to be raising two issues on appeal:

1. The juvenile court erred by failing to make findings under section 361.2, subdivision (a) that he was entitled to custody of Christopher Z. (Minor).
2. The termination of Fathers parental rights without a finding that he was an unfit parent violated his federal due process rights.
Court find no error. Hence, Court affirm.

Various petitions, including new and amended petitions were filed against the minor between January 31, 2006, and May 2, 2006. The petitions alleged violations of Penal Code sections 243.2, subdivision (a)(1), 243.6, 245.5, subdivision (a) and Vehicle Code section 10853.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record. The judgment is affirmed.

A jury convicted Charnetta Lavia Simmons of premeditated attempted murder (Pen. Code, 187, 664),[1]kidnapping ( 207, subd. (a)), and making criminal threats ( 422). In a bench trial following her conviction, the trial court found she was sane at the time she abducted and attempted to kill the victim. Defendant contests the trial courts sanity determination. She also argues life in prison with the possibility of parole constitutes cruel and/or unusual punishment, and contends the trial court erred by rejecting probation in lieu of imprisonment and by imposing an eight month consecutive sentence on her criminal threats conviction. (See 654.) We uphold the trial courts sanity finding because defendant falls short of establishing that no reasonable fact finder could conclude she was sane on the evidence presented. And as Court explain below, defendants sentencing contentions are without merit. Court therefore affirm the judgment.