CA Unpub Decisions

A jury trial ended in a mistrial when the jury reached an impasse on lesser included offenses to a charge that defendant committed the first degree murder of Abelardo Chvez. Defendants case was tried anew, this time to the court on the basis of the transcripts of the prior trial and a new round of closing arguments. The court convicted defendant of the second degree murder (Pen. Code, 187)[1]of Chvez and the attempted murder ( 187, 664) of Herman Cuevas. It found true enhancements based on defendants inflicting great bodily injury by firing a gun. ( 12022.5, subd. (a), 12022.53, subds. (b)-(d).) It sentenced defendant to a determinate term of seven years in prison followed by an indeterminate term of imprisonment for 65 years to life.On appeal, defendant contends that the trial court abused its discretion in declaring a mistrial in the prior proceeding and therefore his second trial occurred in violation of the constitutional guaranties against being placed twice in jeopardy for the same offense, that there was insufficient evidence to convict him of second degree murder and attempted murder and to impose a gun use enhancement for the attempted murder, and that the enhancements should have been stricken. Court affirm the judgment.

Defendant Brian Keith Allen was charged with six counts of lewd and lascivious conduct with a minor under the age of 14 (Pen. Code, 288, subd. (a)),[1] three counts involving F. and three counts involving J.[2] Defendant was convicted by jury of two of the counts involving F. The jury found him not guilty of the third count involving F. and not guilty of the three felony counts involving J. However, with regard to each of the counts involving J., the jury found defendant guilty of the lesser-included offense of misdemeanor simple assault ( 240). The jury found the enhancement allegation that defendant had committed lewd and lascivious acts on more than one child under the age of 14 not true. It also made special findings related to the statute of limitations on the charges involving J.
Court have requested and received an informal response from the Attorney General and a reply from the defendant in a letter brief. Upon filing the opinion in this case, Court also issue an order to show cause before the superior court why defendant is not entitled to the relief requested.
The judgment is affirmed.

Over the course of his career with the International Brotherhood of Electrical Workers (IBEW), some 15 years of which included his marriage to Mary Ann Gray (Caverly), James W. Gray has earned the right to receive a pension upon retirement through a defined benefit plan. James and Mary Ann were married in 1963 and they separated in 1979. Their interlocutory judgment of dissolution of marriage was filed in 1980. As to Jamess pension, the judgment stated that the court would reserve jurisdiction over it until benefits would become due and payable, and then, the Brown Formula shall be applied.[2] (Italics added.)
The order providing for apportionment of Jamess defined benefit pension per the time rule is reversed.

Jessica O. appeals from the juvenile courts dispositional order committing her to the California Youth Authority.[1] She challenges the commitment order on various grounds, including the absence of evidence of probable benefit to her and the consideration of improper factors. The minor also challenges the courts refusal to order a diagnostic assessment. Court find no abuse of discretion, either in the juvenile courts decision to commit the minor to the California Youth Authority, or in its refusal to order a diagnostic evaluation. Court therefore affirm the dispositional order.

Defendant was convicted by a jury of receiving or possessing stolen propertya carin violation of Penal Code section 496d,[1]grand theft of the cars tires and wheel rims in violation of sections 484/487, subdivision (a), and resisting a peace officer in violation of section 148, subdivision (a)(1). Defendant was removing the tires and wheels from the car when he was seen by police and arrested, and, he asserts, he was to be paid $20 by his neighbor for performing this task.
On appeal, defendant contends that the trial court erred by excluding in limine certain witness statements based on the hearsay rule. Defendant contends the statements were not hearsay but instead were circumstantial evidence of his state of mind and lack of knowledge that the car had actually been stolen. He further contends that he was deprived of the constitutional right to a present a defense by exclusion of the evidence and that he received ineffective assistance of counsel. He also argues that it was error under section 496, subdivision (a), for him to have been convicted of both receiving and stealing the same property, a contention that the People concede. Court reject defendants contentions regarding the excluded witness statements but we modify the judgment to strike the theft conviction. In all other respects, Court affirm.

Defendant Sean Williams appeals from a judgment of conviction entered after he pleaded guilty to felony charges of inflicting corporal injury on a spouse or cohabitant (Pen. Code, 273.5, subd. (a)) and false imprisonment effected by violence, menace, fraud and deceit ( 236-237) and admitted personally inflicting great bodily injury on the victim, Amber Ryman, under circumstances involving domestic violence within the meaning of sections 12022.7, subdivision (e) and 1203, subdivision (e)(3). Court have reviewed the entire record and have concluded that there are no arguable issues on appeal. The judgment is affirmed.

In 2006, appellant Aaron Rakhra sued respondent Knight Ridder, Inc. San Jose Mercury News (hereafter Defendant) for negligence and fraud arising out of Defendants advertising activity in 1993. Defendant demurred to the complaint, arguing that it was barred by the statute of limitations and that it failed to state a cause of action. The court sustained the demurrer without leave to amend and entered judgment for Defendant. Rakhra appeals. Court conclude Rakhra has not met his burden of demonstrating error and affirm the judgment.

In this appeal, the mother of a dependent child challenges the order terminating her parental rights and freeing the child for adoption. The mothers sole contention on appeal is that the juvenile court failed to comply with the Indian Child Welfare Act (ICWA), a point that the respondent concedes. Having reviewed the record, we agree that the ICWA claim has merit. Court therefore conditionally reverse the order terminating parental rights, and Court remand the matter to the juvenile court with directions to comply with the inquiry and notice requirements of the Indian Child Welfare Act.

Plaintiff and appellant Alexander Norton appeals from the trial courts order denying his petition under Welfare and Institutions Code section 8103, subdivision (f).[1]Norton argues that the trial court erred because (1) it applied the incorrect legal standard in denying his petition; (2) substantial evidence does not support the courts order; and (3) the trial court failed to observe certain procedural requirements contained in section 8103. Because Court conclude that the trial court apparently misapplied the lawas to which side had the burden of proof in this case, Court reverse its judgment and remand the case to it for reconsideration including, if necessary, a new hearing. Court do not, therefore, reach appellants other two contentions.

This is an appeal from an order awarding appellant Christopher Grell $15,000 in attorneys fees after he prevailed on a motion to strike under the SLAPP statute (Code Civ. Proc., 425.16). Grell, a practicing attorney, contends the trial court erred by not awarding him additional amounts representing the reasonable value of legal work he performed on his own behalf, and attorneys fees and costs he incurred in connection with the underlying SLAPP suit but not the motion to strike. Court disagree, and affirm.

A breach of contract action by attorneys against a former client resulted in a money judgment for the attorneys. When the attorneys filed an abstract of their judgment, the disgruntled former client filed suit for tort damages allegedly caused by that filing. The attorneys brought a special motion to strike the complaint under Californias anti-SLAPP statute (Code Civ. Proc., 425.16) on the ground that the filing of the abstract was not actionable because it was covered by the litigation privilege codified in Civil Code section 47, subdivision (b). The trial court granted the attorneys motion, and the former client appealed. Court's independent review leads us to the same conclusion as the trial court, that the filing of the abstract was absolutely privileged. In light of that determination, Court further conclude that all of the former clients causes of action are legally deficient and that, in consequence, there was no probability he would prevail on any of his causes of action. Finally, Court reject the former clients contention that the filing is exempt from the anti SLAPP statute because it qualifies as commercial speech. Court thus affirm.

Kent Bradburn appeals following his convictions based upon a plea of guilty to sale or transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)) and one count of possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, 11370.1, subd. (a)). He also admitted an enhancement allegation pursuant to Penal Code section 12022, subdivision (a), that he suffered a prior narcotics conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c.) In another case he entered a plea of guilty to possession of ammunition (Pen. Code, 12316, subd. (b)(1)) and misdemeanor possession of marijuana (Health & Saf. Code, 11357, subd. (b)).
Court hold, based upon the California Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II), that no Cunningham error occurred. Court also hold that defendant waived his objection to the dual use of facts articulated by the court in making its sentencing choices, and that, in any event, any error is harmless. The judgment is affirmed.

In this action for legal malpractice and breach of fiduciary duty, appellant Mohamed Alkadri appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of respondent John S. May on the ground that the action was barred by the statute of limitations. Court affirm.

Sandy B. appeals from an order continuing him a ward of the court and committing him to the Fouts Springs Youth Facility. His counsel raises no issues and asks this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
Defendant was represented by counsel throughout these proceedings. There was no error in the disposition. The court has reviewed the entire record and there are no meritorious issues to be argued. The dispositional order is affirmed.