CA Unpub Decisions

Petitioner, the mother, challenges a juvenile court order terminating family reunification services with the child, Leanne J., and setting the underlying dependency proceeding for a hearing to consider the termination of parental rights. (Welf. & Inst. Code, 366.26.) The mother contends the juvenile court erred when it found the Los Angeles Department of Children and Family Services (the department) provided her with adequate reunification services. Court find substantial evidence supports the juvenile courts order and deny the petition.

A jury convicted defendant Joe Cummings of sale of cocaine base (count 1; Health & Saf. Code, 11352, subd. (a)), unlawful possession of cocaine base (count 2; Health & Saf. Code, 11351.5), and misdemeanor child endangerment (count 3; Pen. Code, 273a, subd. (b) [undesignated statutory references are to the Penal Code]). As to counts 1 and 2, the jury found in a bifurcated proceeding that defendant had been convicted of and served a prior prison term for a felony. ( 245, subd. (a)(1), 667.5, subd. (b).)
Sentenced to five years in state prison (the four year midterm on count 1, plus one year under 667.5, subd. (b), with concurrent terms on counts 2 and 3), defendant contends: (1) The trial courts erroneous admission of substances booked into evidence by Detective Malmquist rendered his trial fundamentally unfair. (2) Defendants conviction on count 3 must be reversed because the trial court prejudicially misinstructed the jury on the burden of proof. (3) The trial courts exclusion of co-defendant Pete Turners guilty plea and admission that he sold the controlled substances to an undercover officer rendered defendants trial fundamentally unfair. In addition, defendant asks us to conduct an independent review of the sealed records regarding his Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; see Evid. Code, 1043.) Court affirm.

A jury convicted defendant Mark ODell of corporal injury to a former cohabitant, Terri Lynn Lapado (count 2; Pen. Code, 273.5, subd. (a); undesignated statutory references are to the Penal Code) and found as to that count that he personally inflicted great bodily injury ( 12022.7, subd. (e)). The jury also convicted him of assault by means likely to produce great bodily injury on Alia Espy (count 3; 245, subd. (a)(1)) and making criminal threats (count 4; 422).
Sentenced to a total state prison term of nine years (the upper term of four years on count 2, plus three years for the enhancement, plus one year (one third the midterm) on count 3, plus eight months (one third the midterm) on count 4), defendant contends: (1) The judgment must be reversed because the trial court failed to suspend proceedings before trial and obtain an evaluation of defendants competency to proceed. ( 1368.) (2) The trial court violated defendants due process rights by refusing to appoint counsel at defendants request on the day of trial, given the substantial evidence of his incompetency. (3) The upper-term sentence on count 2 is unconstitutional under Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). Agreeing only with the last contention, Court affirm defendants convictions, vacate the sentence on count 2, and remand to the trial court for further proceedings.

On December 20, 2005, the minor Marc L. admitted allegations that he was within Welfare and Institutions Code section 602 in that he willfully and unlawfully drove a vehicle upon a highway with willful and wanton disregard for the safety of persons or property and did cause bodily injury to another minor. (Veh. Code, 23104, subd. (a).) He was adjudged a ward, placed on probation with a 60 day commitment to juvenile hall, and ordered to complete 40 hours of community service.
Court appointed counsel to represent the minor on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. The minor was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. The minor filed a supplemental brief. After considering the issues raised therein, Court modify the juvenile courts findings and affirm the order.

Defendant pled guilty to two counts of using the personal identifying information of another (Pen. Code, 530.5, subd. (a)). The trial court suspended imposition of sentence and placed Bojorquez on formal probation for three years. Among the terms of probation were various gang conditions that prohibited Bojorquez from associating with known gang members, associating with persons having firearms, wearing gang clothing, and displaying gang gestures.
On appeal, Bojorquez claims that the trial court abused its discretion in imposing the gang conditions. Bojorquez maintains that the conditions were not related to the crimes for which he was convicted. Bojorquez further contends that the conditions were not reasonably related to the prevention of future criminality because there was no showing that gang association had played a role in his life. In addition, Bojorquez claims that several of the conditions are unconstitutional because they do not contain a knowledge requirement, and therefore fail to provide him with sufficient notice of the prohibited activities. We conclude that the trial court did not abuse its discretion in imposing the gang conditions. However, we modify several of the conditions to include a knowledge requirement. As so modified, Court affirm the judgment.

William K. contends the court erred when it denied his petition for modification under Welfare and Institutions Code section 388. William also appeals orders made at the six-month review hearing denying his request for custody of his son or, alternatively, for reunification services. Court affirm the orders.

Mother is the mother of the minor Steven P. In this appeal, mother argues that the juvenile courts visitation order, made at the jurisdiction and disposition hearing, impermissibly delegated to the Department of Public Social Services (DPSS) and to Steven unlimited discretion to determine whether visits would take place at all. After reviewing the particular facts of this case in light of the relevant legal authorities, we conclude that the order itself grants mother the right to visitation, and that DPSSs role is limited to arranging visits after consulting with Steven as to the time, place and manner of the visits. Thus, Court uphold the visitation order as written.

In this writ proceeding, petitioners, Wireless Eye, Inc., Bruce Kopitar and US Tower Corporation, challenge the trial courts grant of summary adjudication in favor of real party in interest, Centex Homes (Centex), on Wireless Eyes cause of action for breach of an oral contract. Through this oral contract, Wireless Eye agreed to provide video security surveillance for Centex construction sites. The trial court held that the contract violated the statute of frauds because, by its terms, the contract could not be performed within one year.
Wireless Eye disputes the trial courts interpretation. According to Wireless Eye, the parties agreed that Wireless Eyes services could be terminated for cause if those services were ineffective in deterring and catching criminals. Wireless Eye argues that, because this terminating condition could have occurred within one year, the oral contract falls outside the statute of frauds.
As discussed below, the alleged terminating condition, if established, would take the oral contract outside the statute of frauds. Thus, there exists a triable issue of material fact, i.e., whether this terminating condition was part of the oral contract. Accordingly, the trial court will be directed to vacate its order granting summary adjudication and enter a new order denying the motion.
A peremptory writ of mandate issue directing the trial court to vacate the portion of its order filed October 24, 2006, that granted Centexs motion for summary adjudication of Wireless Eyes first cause of action in its third amended complaint for breach of oral contract and to enter a new order denying Centexs motion. Costs on this original proceeding are awarded to petitioners.

Defendant appeals from the trial courts order revoking his probation, implementing the prison sentences previously imposed in prior cases, and imposing a two year sentence on the counts to which he had earlier pled guilty in the instant case. Hanson contends the court improperly based its probation revocation decision on the unsupported factual conclusion that he walked away from his residential drug treatment program, and abused its discretion in failing to reinstate his probation. Hanson also asserts that his sentence imposed in the current case must be reversed, because the court erred in failing to recite, on the record, its reasons for imposing it. Court find none of these assertions to be persuasive. The order is affirmed.

Defendant was convicted by jury trial of aggravated assault (Pen. Code, 245, subd. (a)(1)) and misdemeanor battery (Pen. Code, 242). The jury also found true allegations that defendant had personally inflicted great bodily injury (Pen. Code, 667, 1192.7, subd. (c)(8)) and personally used a dangerous or deadly weapon (Pen. Code, 667, 1192.7, subd. (c)(23)) in the commission of the assault. He was granted probation conditioned on serving a jail term. On appeal, defendant asserted that the personal infliction of great bodily injury (GBI) finding could not be upheld because the trial court, by using CALJIC 17.20, failed to require the jury to find that defendant personally inflicted that injury. He also claimed that the personal use of a weapon finding was tainted by the same instruction. This court agreed with defendant that CALJIC 17.20 was infirm and constituted prejudicial error with respect to the GBI finding, but the California Supreme Court granted review and upheld the validity of CALJIC 17.20. It remanded the case to this court to consider defendants remaining contention.
Defendant contends that the trial courts response to a jury inquiry regarding CALJIC 17.20 was inadequate and prejudiced him with respect to both the GBI finding and the personal use of a weapon finding. Court conclude that the trial courts response was inadequate, but that defendant was not prejudiced by the courts error. Court therefore affirm the trial courts probation order.

On January 27, 2005, the Santa Clara County District Attorney filed an information charging appellant with assault with a deadly weapon on a peace officer (Pen. Code, 245, subd. (c), count one), [1]battery on a peace officer ( 242-243, subd. (c)(2), count two), resisting or deterring an officer ( 69, counts three, four), resisting, delaying, or obstructing an officer, a misdemeanor ( 148, subd. (a)(l), count five), possession of burglar tools, a misdemeanor ( 466, count six), being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, 11550, subd. (a), count seven), and possession of a controlled substance, a misdemeanor (Health & Saf. Code, 11377, subd. (a), count eight). The information alleged that appellant personally used a dangerous and deadly weapon, a flashlight, in counts one and two.
On June 9, 2005, a jury found appellant guilty of the lesser offense of misdemeanor assault on a peace officer on count one, guilty as charged on counts two, four, five, seven, and eight. However, the jury found the personal weapon use allegation in count two not true. Further, the jury found appellant not guilty on counts three and six. On September 23, 2005, the trial court sentenced appellant to a total prison term of three years eight months.
On September 26, 2005, appellant filed a notice of appeal.
On appeal, appellant raises two issues. First, with respect to counts two and five he contends the record is devoid of substantial evidence that the officer was lawfully engaged in the performance of his duties at the time he detained him. Second, appellant challenges the imposition of an aggravated term relying on Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. Court affirm the judgment, but remand to the trial court for resentencing.

Defendant was convicted after court trial of elder or dependent adult abuse (Pen. Code, 368, subd. (b)(1)). After denying defendants motion for new trial and/or for reduction of the offense to a misdemeanor, the court suspended imposition of sentence and placed defendant on probation for three years. In addition, the court ordered defendant to pay a court security fee of $20.
On appeal defendant contends that (1) there is insufficient evidence to support the conviction, (2) the court erroneously relied on evidence outside the record, (3) the court erroneously admitted hearsay statements by the victim, and (4) the courts imposition of the court security fee violated ex post facto principles and was an improper retroactive application of section 1465.8. Court disagree with all of these contentions and affirm the judgment.

Defendants motion to suppress and his motion to set aside the information were denied, and he pleaded no contest to a single count of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)). He was granted Proposition 36 probation. On appeal, he challenges the denial of his motions. Defendant claims that his consent to search his person was the product of an unconstitutionally prolonged detention. Court find merit in his contention and reverse.

Defendants Compuware Corporation (Compuware) and W. Alan Cantrell (Cantrell) appeal and plaintiffs Mary McCarthy OLee (McCarthy) and Aidan OLee (OLee) cross-appeal from a judgment following jury verdicts in favor of plaintiffs in their action for libel against defendants. The jury awarded OLee $550,000 and McCarthy $600,000 in compensatory damages and $5 million each in punitive damages. The trial court found the punitive damages award exceeded its constitutional maximum and reduced the punitive damages award to $1.65 million to OLee and $1.8 million McCarthy (three times the compensatory damages verdict).
Defendants contend that the evidence was insufficient to support the jurys finding of actual malice to defeat the common interest privilege; that the evidence of malice, oppression or fraud was insufficient to support any punitive damages award; and that the reduced punitive damages award was unconstitutionally excessive. On their cross-appeal, plaintiffs contend that the jurys punitive damages award of $5 million to each plaintiff was constitutional and that the trial court erred in reducing the award. Court affirm the judgment.