CA Unpub Decisions

In a juvenile dependency action, the juvenile court terminated family reunification services to the parents of six children and set a hearing to determine a permanent plan for the children. (Welf. & Inst. Code, 366.26 [all further section references are to this code except as noted].) Court affirm the order.

In a prior opinion, Court affirmed the conviction of Saturnino Galicia for forcible rape. (Pen. Code, 261, subd. (a)(2).) He contended that the trial court erred by admitting prejudicial evidence of prior sexual offenses and acts of domestic violence. Galicia also contended that his upper term sentence of eight years in state prison for the offense violated his Sixth Amendment right to trial by jury because it "'. . . increases the penalty for a crime beyond the prescribed statutory maximum . . .'" based on aggravating facts that were not determined by the jury. (Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) We rejected this latter contention based on the opinion of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244, 1253-1254, 1261, 1264.) Thereafter, the United States Supreme Court granted Galicia's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] which overruled Black, in part. In the instant case, however, the trial court imposed the upper term sentence solely on the basis of Galicia's prior felony conviction. The judgment is affirmed.

Plaintiffs filed this appeal from an order denying their application for a preliminary injunction as to defendants Factor Health Management, LLC (Factor), Robert Gardner (Gardner) and Donna Ligda (Ligda). The action is one for breach of fiduciary duty, misappropriation of trade secrets, interference with prospective economic advantage, unfair competition, declaratory relief and injunctive relief. Apex and eBiocare alleged generally that Ligda formerly worked for them. They alleged that during the course of her employment, she learned their trade secrets and had access to their employees and customers. After her employment with them terminated, Factor hired her. Apex and eBiocare alleged that while employed by Factor, Ligda and Gardner used the information obtained while in Apex's and eBiocare's employ to lure Apex's and eBiocare's employees and customers to Factor.
The appeal is dismissed.

A power company employee shot a teenager in the eye with a paintball gun. A jury found the company liable for the boys injuries under the doctrine of respondeat superior. On appeal, the power company argues that it is not vicariously liable, as a matter of law, because its employee was acting outside the scope of her employment when the incident occurred. Court agree with appellant. The evidence undisputedly shows that the employee was participating in a prank or joke with children playing near her work site. The prank had nothing to do with her job duties. As a result, the employees tortious acts did not fall within the scope of her employment and her employer cannot be held liable for them. Court reverse the judgment.

Defendant appeals from a judgment of conviction entered after a jury found her guilty of first degree murder (Pen. Code, 187, subd. (a)), committed for financial gain (id., 190.2, subd. (a)(1)), in the commission of which she personally used a deadly or dangerous weapon (id., 12022, subd. (b)(1)). She was sentenced to state prison for life without the possibility of parole plus one year. On appeal, she claims ineffective assistance of counsel and prosecutorial misconduct. Court affirm.

Plaintiffs filed a first amended complaint against defendants and respondents Gorry, Meyer, & Rudd and Timothy J. Gorry alleging causes of action for legal malpractice and breach of fiduciary duty. Defendants filed a cross-complaint for unpaid attorney fees. This is an appeal by plaintiffs from a summary judgment in favor of defendants on the first amended complaint, and from terminating sanctions and a money judgment in favor of defendants on the cross-complaint for unpaid attorney fees. Plaintiffs contend summary judgment was improper in that the summary judgment motion addressed the superseded original complaint containing one cause of action for legal malpractice, rather than the operative first amended complaint which added a second cause of action for breach of fiduciary duty. Plaintiffs further contend the trial court erred in imposing terminating sanctions for plaintiffs failure to complete depositions as ordered. Plaintiffs also argue the unpaid attorney fees award was without notice, an abuse of discretion, and not supported by substantial evidence. We reverse the summary judgment on plaintiffs first amended complaint, because the motion for summary judgment did not address both causes of action of the first amended complaint. Court reject plaintiffs contentions concerning terminating sanctions on defendants cross complaint and affirm the judgment awarding unpaid attorney fees to defendants.

The trial court denied a sons petition for the appointment of a conservator for his mother, concluding Maine was the appropriate jurisdiction for the determination of conservatorship matters. Another son, who had objected to the conservatorship petition, appealed from the courts order awarding attorney fees to court appointed counsel for the mother, contending the court had no jurisdiction over the conservatorship petition and therefore no jurisdiction to award fees. Court affirm the order awarding fees to court appointed counsel.

Barnavis Stallings and Shawan Duggins appeal from convictions stemming from a robbery in Los Angeles. Stallings challenges the sufficiency of the evidence that he aided and abetted the robbery. Substantial evidence supports Stallingss conviction for robbery. Both appellants argue the trial court erred in refusing to instruct on the lesser offenses of grand theft person, grand theft, petty theft, and receiving stolen property. In addition, Duggins argues the trial court erred in failing to instruct, sua sponte, on the definition of a deadly weapon. Court find no instructional error. Finally, both appellants argue that the trial court violated their Sixth and Fourteenth Amendment rights to a jury determination beyond a reasonable doubt of aggravating factors upon which upper terms were imposed. Court conclude that the upper terms were properly imposed based upon factors relating to the recidivism of each appellant. To the extent that the trial court relied upon factors not related to recidivism, the error was harmless.

Defendant appeals from the judgment entered following his conviction of first degree murder and attempted robbery. He contends the trial court erred in: (1) allowing the prosecution to introduce into evidence his postarrest statement to police and (2) refusing to give an instruction on duress as a defense to the charge of felony murder. Court affirm.

Petitioner appeals from a judgment granting the petition filed by claimant and respondent Rica P. Conner to determine the existence of a trust under Probate Code section 17200. Parry contends that the trial court erred by relying on parol evidence to establish the existence of a trust where Conner did not adequately demonstrate that the trust document was lost. She further contends that the evidence was insufficient to establish the terms of the trust, and specifically the nature and quantity of each beneficiarys interest. For reasons Court explain, Court affirm the judgment.

Plaintiff was awarded damages of $209,179 following a court trial on his complaint alleging breach of contract and common counts against defendant. Judgment was also entered in favor of Aguilar on Millots cross-complaint against Aguilar, Alvaro L. Banegas, and Bancomer Construction and Development, alleging foreclosure of a mechanics lien, breach of contract, common counts, and declaratory relief.
In this timely appeal from the judgment, Millot raises the following issues: (1) the oral contract was entered into between Millot and Banegas, and because Aguilar was not a party to the oral contract, he could not bring this action; (2) if Aguilar was a party to the oral contract, he was in breach due to his failure to pay the amount due, which excused Millots performance; (3) the statute of limitations on the oral contract expired in March 2004, but Aguilar did not file the instant action until October 2004; (4) the trial court erred in awarding damages in excess of those set forth in the written contract at $100 per day for late performance; (5) Aguilar did not prove that Millot materially breached the contract; (6) Aguilars payment of $3,700 after the alleged breach constituted a waiver of the breach; (7) the trial court awarded damages based upon loan costs not incurred in Aguilars name; and (8) the trial court abused its discretion by not allowing oral argument before filing its tentative and final statements of decision.
Court find no reversible error and affirm the judgment in its entirety.

In this case two gang members lured a friend out of his house and tried to shoot him to death for allegedly being a snitch. When the shooting began the friends uncle ran to his aid and dragged him back inside the house as the gang members continued shooting. The gang members were charged with attempted murder, assault with a semiautomatic firearm, shooting at an inhabited dwelling and related criminal street gang and gun use allegations/enhancements. With certain exceptions, the jury convicted them of the charges and found true the gang and gun use allegations. The gang members appeal, alleging the trial court committed numerous instructional and sentencing errors. They also claim the evidence is insufficient to support their convictions for shooting at an inhabited dwelling. Court find no prejudicial error warranting reversal and accordingly affirm the judgments of conviction. On the other hand, we find the trial court erred in imposing an upper term sentence based on facts not found by the jury beyond a reasonable doubt in violation of Cunningham v. California. Accordingly, Court vacate the sentence imposed on one of the convictions and remand for resentencing.

Appellant challenges his first degree burglary conviction on the grounds the small number of African American jurors on the panel of prospective jurors violated his right to a jury drawn from a representative cross-section of the community, the evidence was insufficient to support the verdict, the trial court improperly applied the Three Strikes law to him, and the trial court erred by denying his motion for new trial and instructing the jury on motive and flight. We conclude appellant failed to make a prima facie showing of a violation of his right to a jury drawn from a representative cross-section of the community. Substantial evidence supported appellants conviction. Application of the Three Strikes law to appellant did not violate his right to a jury trial. The trial court did not err by denying appellants motion for a new trial or instruction the jury on flight and motive.
The judgment is affirmed.

Defendant appeals from the judgment entered following a jury trial resulting in his convictions of attempting by threat of force to dissuade a witness (Pen. Code, 136.1, subd. (c)(1)) and of attempting by threat of force to influence testimony or information given to a law enforcement official ( 137, subd. (b)), with findings that the crimes were committed for the benefit of, and in association with, a criminal street gang ( 186.22, subds. (b)(1), (b)(4)(A) & (b)(4)(C)). Defendant admitted that he had a prior serious felony conviction ( 667, subd. (a)(1)), and that he had two prior felony convictions that qualified him for sentencing pursuant to the Three Strikes law ( 667, subds. (b) (i), 1170.12). At sentencing, the trial court struck one of the prior convictions qualifying him for sentencing pursuant to the three strikes law. It treated defendant as a second-strike offender and sentenced him to an aggregate term of 19 years to life in state prison.
He contends that (1) the trial court had a duty to charge the jury with CALJIC No. 17.01, as to unanimity, (2) the evidence of intent is insufficient to support the judgment in count 2, influencing a witness, and (3) he is entitled to further presentence conduct credit.
Only defendants contention regarding his entitlement to presentence conduct credit has merit. As Court explain, ante, Court modify the judgment to award defendant 37 days of presentence conduct credit. In all other respects, Court affirm the judgment.