CA Unpub Decisions

Vanessa P. (mother) is the mother of L.O., now six years old. Mother challenges the juvenile courts order entered under Welfare and Institutions Code section 366.26, terminating her parental rights to L.O. Specifically, mother argues that the juvenile court abused its discretion when it declined to grant the brief continuance requested by mothers counsel so that counsel could check voice mail to determine whether mother had left a message as to why she was not present at the section 366.26 hearing. Court conclude that, while we might have made a different decision depending on how busy the juvenile courts calendar was, the ruling denying the brief continuance was not an abuse of discretion. Court affirmed.

Appellant pled no contest to carjacking (Pen. Code, 215, subd. (a); count 1), assault with deadly weapon by means or force likely to produce great bodily injury ( 245, subd. (a)(1); count 2), driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officer (Veh. Code, 2800.2; count 3), theft and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 4) and elder abuse ( 368, subd. (b)(1); count 5). He admitted special allegations of the following: in committing the count 1, 2 and 5 offenses he personally inflicted great bodily injury ( 12022.7, subd. (a)); he suffered two prior felony convictions, each of which qualified as a strike and as a prior serious felony conviction ( 667, subd. (a)); and he served a prison term for a prior felony conviction ( 667.5, subd. (b)). The court imposed a prison term of 64 years to life, with the determinate portion of the term consisting of the following: consecutive 25-year terms on each of counts 1 and 3; three years on one of the great bodily injury (GBI) enhancements; five years on each of the prior serious felony enhancements; and one year on the prior prison term enhancement. The court also imposed concurrent 25 years to life terms on each of counts 2 and 5, and imposed and, pursuant to section 654, stayed execution of a term of 25 years to life on count 4. On appeal, appellant contends (1) the court erred in failing to stay, pursuant to section 654, execution of sentence on counts 2 and 5; and (2) the abstract of judgment erroneously indicates the court imposed three GBI enhancements of one year each rather than one three year GBI enhancement. The People concede each of these points. Court modify the judgment to provide that execution of sentence on the count 2 and 5 substantive offenses and accompanying enhancements be stayed; direct the preparation of an amended abstract of judgment; and in all other respects affirm.

A jury convicted defendant Andre Lovon Duncan of selling cocaine base and resisting arrest. (Health & Saf. Code, 11352, subd. (a) [transportation, sale, or distribution]; Pen. Code, 1203.073, subd. (b)(7), 148, subd. (a)(1) [resisting, delaying, obstructing].) After the verdict, defendant admitted that he had a prior conviction for selling drugs and had served a prison term. (Health & Saf. Code, 11352, 11370.2, subd. (a), 11370, subds. (a) & (c).) The court imposed a term of four years for selling cocaine base, a consecutive three-year term for the prior drug conviction, a consecutive one year term for the prior prison term, and a concurrent six-month jail term for resisting arrest. On appeal from the judgment, defendant claims the court erred in granting a mid-trial continuance, admitting evidence of an uncharged prior drug sale, failing to instruct jurors to view evidence of an admission by him with caution, and restricting cross examination of a prosecution witness. He also claims defense counsel provided ineffective assistance in failing to object to the continuance and evidence of his prior drug conviction. Court affirm the judgment.

Defendant appeals a judgment in favor of plaintiff Julie Sawyer on a claim under the Magnuson-Moss Warranty Act (Warranty Act). Sawyer was awarded $12,500 in damages for diminution in value of her car and an additional $37,524.53 in attorney fees and costs. On appeal, Mercedes Benz asserts there was not substantial evidence to support the verdict, because the testimony at trial regarding the diminution in value lacked foundation. In addition, Mercedes Benz seeks to reduce the attorney fees award. The judgment is affirmed.

In December 2003, Opperwall filed a complaint in Alameda County against Fink, as an individual, as well as Finks law firm, Mesirow, Fink, Eisenhart & Dawson, and the individuals Charles Mesirow, Marc Eisenhart, and James Dawson (collectively the Lawyer Parties.) The complaint alleged causes of action against Fink and the Lawyer Parties for abuse of process, declaratory relief and interference with prospective economic advantage related to a lawsuit in Santa Clara County involving Finks clients, Adam and Eva Gregorczuk. (Murphy v. Gregorczuk, et al., Santa Clara County Superior Court Consolidated Action No. 1-99-CV-780494.)
In response to Opperwalls original complaint in Alameda County, the Lawyer Parties filed a motion to change venue, an anti- SLAPP motion, and a demurrer. In this action, Fink represented himself and the Lawyer Parties. The motion for change of venue was granted, and the court ordered Opperwall to pay $2,000 in attorney fees. The demurrer and the anti-SLAPP motion were transferred to Santa Clara County Superior Court.
After the matter was transferred to Santa Clara County, Opperwall filed a first amended complaint alleging abuse of process, malicious prosecution and interference with prospective economic advantage. In response, Fink filed another anti-SLAPP motion and demurrer, representing himself and the Lawyer Parties. The court granted the anti-SLAPP motion. The court ordered Opperwall to pay $3,400 in attorney fees.
A judgment of dismissal was entered in October 2005, consisting of a total of $5,400 of attorney fees. Opperwall filed a notice of appeal.
The judgment is affirmed.

Defendant Jose Jesus Alvarez was charged with one felony, possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). He was also charged with two misdemeanors, being under the influence of a controlled substance, methamphetamine (Health & Saf. Code, 11550, subd. (a)), and providing false identification to a peace officer (Pen. Code, 148.9, subd. (a)).[1] The information also alleged a prior strike conviction ( 667, subds. (b)-(i), 1170.12). A jury found defendant guilty of all charges, the court found the enhancement true, and he was sentenced to 32 months in prison.

On appeal, defendant asserts that there was insufficient evidence to support the methamphetamine possession conviction because the amount of the controlled substance that he was alleged to have possessed was not a usable quantity. He argues further that the trial court coerced the conviction by failing to comply with the jurys requests for a readback of testimony and by failing to give an adequate response to the jurys inquiry regarding the definition of usable, in the context of the drug possession charge. Court conclude that there was sufficient evidence to support the methamphetamine possession conviction. Court also reject defendants jury coercion claim. Accordingly, Court affirm the judgment.

Appellant Paul Chopra sought a writ of mandate compelling respondents Helio Solutions, Inc. and its directors to allow him to inspect a large number of corporate records in addition to the corporate records he had already received. He contended that as a minority shareholder he was entitled under Corporations Code section 1601, subdivision (a), to inspect the additional records in order to, among other things, ascertain the present value of the companys stock and to determine whether the directors were acting in the best interests of the minority shareholders. On appeal, Chopra contends that the trial court erred in denying his petition for writ of mandate on the ground that Chopra had failed to meet his burden to show that his inspection requests were reasonably related to his interests as a shareholder. For reasons that Court explain, Court find that sufficient evidence supports the trial courts ruling and therefore Court affirm the order denying Chopras petition for writ of mandate.

A jury convicted defendant and appellant Billy Roy White of one count of sale of a controlled substance. At Whites trial, the prosecutor introduced a photographic exhibit, Peoples exhibit 1, identified as the drugs White sold to an undercover police officer. Peoples exhibit 1 was not produced before trial, and it was, arguably, inconsistent with another photograph, defense exhibit A, which was produced before trial. After the People rested, Whites trial counsel asked to recall officers to ask them about defense exhibit A. The trial court denied the request. White now appeals, contending that the trial court abused its discretion and denied him his right to present a complete defense. He also contends that there is insufficient evidence of his prior prison terms. Court remand the case for a retrial on the prison priors. Court otherwise affirm the judgment.

Kneale Yves Saint Saens, also known as Neil A. Smith, appeals from an order requiring him to pay restitution to one of his alleged victims, in the amount of $10,039.64. The restitution order was issued after judgment was entered on his convictions of one count of grand theft auto (Pen. Code, 487, subd. (d)(1)) and one count of forgery ( 470, subd. (d)), upon his negotiated plea of no contest. As part of the plea agreement, appellant admitted having suffered two prior prison terms within the meaning of section 667.5, subdivision (b) and agreed to pay any outstanding restitutions on any counts that [were] going to be dismissed [pursuant to the plea agreement]. The trial court sentenced him to an aggregate prison term of four years. Appellant contends that the restitution order was unauthorized. Court affirm.

Appellant appeals from an order sustaining a petition filed by the People pursuant to Welfare and Institutions Code section 602 alleging that he had committed the crime of possession of a firearm by a minor. (Pen. Code, 12101, subd. (a)(1).) Probation condition No. 15 is modified to read: minor is not to associate with persons of whom he knows his parents and his probation officer disapprove or with anyone he knows is on probation or parole. Probation condition No. 16 is modified to read: minor is not to remain in the presence of any unlawfully armed person when he knows the person is unlawfully armed. In all other respects, the order is affirmed.

UCLA Harbor Medical Center (Harbor) appeals a judgment entered against it after a jury awarded Patrick Bell (Bell) $150,000 on his medical malpractice claim. During voir dire, Harbors peremptory challenge of a juror was disallowed because it was impermissibly based on race. Harbor contends that the trial courts reseating the challenged juror was reversible error. Harbor also contends that the verdict was not supported by substantial evidence, that its motion for a new trial based on attorney misconduct should have been granted and that the jury was improperly instructed on the willful suppression of evidence. Court find no merit to these contentions and affirm the judgment.

Dwayne T. Williams appeals a judgment following conviction of burglary, with findings of a prior serious felony conviction and service of three prior prison terms. (Pen. Code, 459, 667, subd. (a), 667, subds. (b) (i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) Court modify the judgment to award Williams 116 days of additional presentence conduct credits, but otherwise affirm.

This appeal raises the narrow issue of whether the probate department of the superior court retained collateral jurisdiction to rule on appellants motion for prejudgment interest and costs after respondent filed an appeal of the judgment. Court hold that it did and reverse the courts order taking the motion off calendar pending the outcome of the appeal of the judgment. Court remand for the trial court to resolve the motion for prejudgment interest within 30 days of the issuance of remittitur in this appeal.

Hector Jose Vergara appeals a judgment entered following conviction by jury of one count of assault by means of force likely to produce great bodily harm. (Pen. Code, 245, subd. (a)(1).)
An information charged Vergara with one count of assault by means of force likely to produce great bodily harm, and two counts of assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) A jury trial followed. Francisco Alvarez testified that he and Vergara were neighbors and that Vergara had harassed him for many months. Vergara made animal-type sounds when Alvarez approached and on two occasions, nearly struck Alvarez with his pickup truck. Court have reviewed the entire record and are satisfied that Vergara's attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.