CA Unpub Decisions

At the 12-month review hearing in the dependency of Amanda A. and Aaron A., the juvenile court found that returning the children to their mother, appellant Marie F.-A., would create a substantial risk of detriment. Two months later, the juvenile court returned the minors to Maries custody. On appeal, Marie challenges the sufficiency of evidence to support the juvenile courts refusal to return her children at the 12 month hearing. As the children were returned to Maries custody after that time, we dismissed her appeal as moot. After granting rehearing on our own motion and having considered the arguments of both parties, Court again find that the underlying appeal is moot.

Wensen Tang Sarchet (Wensen) appeals from an order after hearing awarding Wensens former husband, Mervin Mark Sarchet (Mark), attorneys fees pursuant to Family Code section 271, damages for breach of fiduciary duty, and a modification of child support for the parties four minor children. Court affirm the awards of damages and attorney fees, but reverse the order modifying child support and remand this case so that the trial court can recalculate Wensens child support obligation.

Plaintiff and appellant Annie Reynaud (Reynaud) appeals from an order to pay attorney fees to defendant and respondent Erin Brockovich Ellis (Ellis). The order was based upon an attorney fee clause in a construction contract. Court affirm.

In this family law case, Laura Fettig sought to set aside a dissolution judgment. After Fettigs motion for relief was denied, the trial court also denied her motion for reconsideration. Court affirm and remand solely on the issue of attorney fees on appeal.

Odell Hale appeals from his conviction of corporal injury to a spouse, assault by means likely to produce great bodily harm, criminal threats, and assault with a deadly weapon. Appellant argues the court (1) abused its discretion in refusing to dismiss two prior strike convictions pursuant to Penal Code section 1385[1]; (2) was unaware of its authority to dismiss a prior strike conviction as to one count and not another; (3) violated section 654 by sentencing appellant to concurrent life terms on counts 5 and 8; and (4) improperly interrogated witnesses, exhibiting bias against appellant and violating his right to due process. Although the courts questioning of a witness did constitute error on one occasion, the error was not prejudicial. Court find no error in the other rulings, and affirm the judgment.

Dayvion Johnson and Timothy Akens were convicted of possession of marijuana and cocaine base for sale (Health & Saf. Code, 11359, 11351.5) with a criminal street gang enhancement. (Pen. Code, 186.22.) Each appellant challenges the enhancement, focusing on the requirement in subdivision (b)(1) that the present crime must be committed to promote, further, or assist a criminal street gang. They argue that the aided criminal conduct must be some offense other than the crimes charged in the present case, and that since there was no evidence that it was, the gang enhancement was improperly applied. Johnson also argues that evidence supporting the finding that he is a gang member was based on hearsay and speculation, and was not admissible evidence. Court find no error and affirm the judgment.

An information charged appellant Robert Guajaca with the premeditated murder of Shigeru Nagao in violation of Penal Code section 187, subdivision (a) (count one), and the attempted murder of Enoka Fuailetolo in violation of section 187, subdivision (a) and section 664 (count two). The attempted murder of Fuailetolo was alleged to have been committed willfully, deliberately and with premeditation. The information further alleged that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d), and that both the charged offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(A).
The jury found appellant guilty as charged and found the special allegations true. The court sentenced appellant to a term of 25 years to life plus 25 years to life on the firearm enhancement on count one, and a life sentence plus an additional 25 years to life on the firearm enhancement on count two, all to be served consecutively.

Defendant Rodney Gene Parker appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of carjacking (Pen. Code, 215, subd. (a)) and found true a firearm use allegation ( 12022.53, subd. (b)) and a criminal street gang allegation ( 186.22, subd. (b)(1)) on that count. The jury found defendant guilty of second degree robbery ( 211) and attempted second degree robbery ( 211, 664) and found true firearm use allegations on both counts ( 12022, subd. (a)(1)). The jury also convicted defendant of possession of a firearm by a felon ( 12021, subd. (a)(1)) and found true a criminal street gang allegation on that count ( 186.22, subd. (b)(1)).
The trial court found true the allegation defendant suffered a prior serious felony conviction ( 667, subds. (a), (b)-(i), 1170.12). On the carjacking conviction, the trial court imposed the upper term of 9 years, which it doubled to 18 years as a second strike, and added two 10-year enhancements on the firearm use and criminal street gang findings. The trial court imposed an aggregate consecutive term of 6 years and 4 months on the remaining counts and added 5 years for defendants prior conviction, for a total term of 49 years and 4 months.
On appeal, defendant challenges the sufficiency of the evidence supporting the criminal street gang enhancements and the imposition of the upper term sentence on his carjacking conviction. Court agree the evidence is insufficient to support the criminal street gang allegation but affirm the remainder of the judgment.

The trial court abused its discretion when it denied defendant Levite McMillons (McMillon) Pitchess motion. Accordingly, Court grant the petition for writ of mandate.

In a marital dissolution action, Brian R. Reed (Brian) seeks review of the trial courts order modifying spousal support payments by Roberta L. Reed (Roberta) to be paid on a step down schedule, gradually decreasing incrementally and terminating altogether on or before April 1, 2009. Court reverse and remand for further proceedings.

A petition filed in the Sacramento County Superior Court, sitting as a juvenile court, alleged that Ricky M. came within the provisions of Welfare and Institutions Code section 602 by unlawfully carrying on his person a switchblade knife having a blade two inches or more in length (Pen. Code, 653k). After denying the minors motion to suppress evidence (Welf. & Inst. Code, 700.1), the juvenile court conducted a contested jurisdictional hearing, sustained the petition, and placed the minor on six months supervised probation (Welf. & Inst. Code, 725, subd. (a)). The minor appeals, contending his motion to suppress evidence should have been granted. Court affirm.

These consolidated appeals are taken from a judgment and various posttrial orders of the superior court adjudicating the parties' disputes arising out of the construction of a hotel in El Centro. Prior to the completion of the hotel, property owner Anjani Investments, Inc. (Anjani) terminated its contract with K2 Construction, Inc. (K2); K2 then served a bonded stop notice on Anjani's construction lender, Comerica Bank - America (Comerica), recorded a mechanic's lien against the property and filed this action against Anjani, Comerica and others. A jury awarded K2 $370,409 against Anjani and, in a bifurcated proceeding, the court found in K2's favor on K2's claim against Comerica to enforce the stop notice. The court entered a judgment that, inter alia, awarded K2 (1) damages of $370,409.00 and attorney fees of $798,023.00 against Anjani on the breach of contract claim and (2) the same amounts, plus an additional $114,978.94 in prejudgment interest, against Comerica on the stop notice claim. The judgment also provided that, except as to the prejudgment interest award, Comerica's liability was joint and several with Anjani and that Comerica's total liability on the stop notice claim was limited to $947,693.02.
Court find that there was no evidentiary support for (i) the judgment against Comerica on K2's stop notice cause of action and (ii) the jury's award of certain supervision costs and costs of certain subcontract work and materials and thus reverse the judgment as to those items. Court also conclude that the trial court erred in denying K2's motion for prejudgment interest against Anjani and taxing the bond premiums as an element of K2's costs and reverse the judgment and the court's posttrial orders so ruling. In all other respects, Court affirm the judgment and the orders.

Alyssa T. appeals a juvenile court order summarily denying her Welfare and Institutions Code section 388 modification petition seeking reinstatement of visits with her minor children, Talia U., Fabian U., Jr., Hali U., and Kirk U. (the minors). Court affirm the order.

The probate court was asked to find that the sale of a beneficiarys interest in a testamentary trust violated a trust provision against voluntary alienation. The court was also asked to find that the sale violated a no contest clause in the decedents will.
The probate court found that the sale did not violate the anti alienation provision and denied the petition. It also rejected the attempted application of the no contest clause.
Applying a de novo standard of review, Court disagree with the probate court and agree with plaintiffs that the sale violated the anti-alienation provision of the trust. However, Court agree with defendant that the no contest clause of the will is inapplicable because it was not incorporated into the decree of final distribution.