CA Unpub Decisions

Plaintiff appeals from the judgment entered following a jury verdict in favor of defendants and respondents Steadfast Management Company, Steadfast Lakeview Terrace LLP, Christian Hernandez, and Angelica Barba. Ms. Barton elected to proceed on appeal with an appellants appendix and a partial reporters transcript. The only reporters transcript designated for the appeal by Ms. Barton was for an in chambers hearing on April 14, 2006, in which the trial court ruled that prospective witness Dennard Reese would not be permitted to testify on behalf of Ms. Barton. Defendants have augmented the record on appeal with a transcript of an April 11, 2006 hearing on an in limine motion to preclude the testimony of Mr. Reese.
Without a complete transcript of the trial, it cannot be determined whether the trial courts ruling to exclude the testimony of Mr. Reese was error, and if so, whether the error was prejudicial in light of the totality of the evidence. Applying the presumption that the judgment is correct and that there is no error without affirmative proof, court affirm the judgment.

In August of 2002, a jury found Waheed Alam (Alam) guilty of arson in violation of Penal Code section 451, subdivision (c). The trial court sentenced Alam to six years in state prison. Alam appealed and this court affirmed the judgment (People v. Alam (Nov. 19, 2003, B162966 [nonpub. opn.]). On March 21, 2006, Alam filed in the trial court a motion to vacate the judgment in the arson case. The trial court denied the motion on April 27, 2006. Alam now appeals the trial courts order denying his motion to vacate the judgment. Court conclude, because the order from which Alam seeks relief is not appealable, the appeal must be dismissed. (See People v. Gallardo (2000) 77 Cal.App.4th 971, 980 985, 989 (Gallardo); 1237, subd. (b).)

Francisco Romero (Romero) appeals the judgment entered following his plea of no contest to the theft and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) and his admission he had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b) (i); 1170.12, subds. (a) (d)). Pursuant to a negotiated plea agreement, the trial court sentenced Romero to 32 months in state prison. Court dismiss Romeros appeal as inoperative for failure to obtain a certificate of probable cause.

The juvenile court sustained one count of a petition alleging the minor had committed the crime of misdemeanor battery. He was declared a ward of the court and ordered home on probation. Court appointed counsel to represent him on appeal. According to the prosecution evidence, Christopher A., then 13 years old, was walking home from school and encountered the minor, then 15 years old, who asked whether Christopher A. was going to get the minors brother. The minor pushed Christopher A., and Christopher A. pushed back. The two boys continued to push each other until the minor punched Christopher A. in the mouth, knocking out Christopher A.s braces and causing his mouth to bleed.
Court have examined the entire record and are satisfied the minors attorney has fully complied with the responsibilities of counsel and no arguable issues exist. The order is affirmed.

Petitioner, mother of three year old Jorge A. and five year old Hugo A. brings the instant petition for extraordinary writ review (Cal. Rules of Court, rule 38 et seq.) challenging the disposition order of the juvenile court that denied her reunification services and visitation. Court deny the petition.

Defendant appeals from the judgment and sentence after the trial court found him guilty of four counts of misdemeanor attempted petty theft (Pen. Code, 664/488; Cts. 1, 6, 7, 8), one count of receiving stolen property ( 496, subd. (a); Ct. 2), and two counts of attempting to obtain money by falsely representing himself as a public officer. ( 664/146a, subd. (b); Cts. 9 and 10.)[2] He was placed on formal probation for three years and ordered to serve 180 days in jail and perform 400 hours of community service.
On appeal, he contends the evidence is insufficient to establish he impersonated a public officer, counsels ineffective assistance caused him to reject a proposed plea bargain, and the trial court abused its discretion by denying his motion to reduce the felony convictions to misdemeanors and denying his request to change from self representation to representation by appointed counsel.
Court find no error and affirm the judgment and sentence.

A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)), possession of a controlled substance (Health and Saf. Code, 11350, subd. (a)) and bringing a controlled substance into jail ( 4573), all of which were committed while defendant was on probation in another case.
On appeal, defendant contends the trial court erred by (1) failing to conduct further inquiry regarding two jurors ability to be fair and impartial given their employer employee relationship, (2) failing to instruct the jury, sua sponte, with CALJIC No. 2.23, (3) imposing separate but concurrent sentences for the two drug-related offenses rather than staying the sentence for possession pursuant to section 654, (4) imposing a 10 percent administrative fee, and (5) imposing consecutive sentences in violation of defendants constitutional rights to a jury trial and due process. Court affirm the judgment.

A jury convicted defendant of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) with infliction of great bodily injury (Pen. Code, 12022.7, subd. (a)). The court sentenced defendant to state prison for five years the low term of two years for the assault enhanced by three years for the great bodily injury.
Defendant appealed and an opening brief was filed on her behalf by appointed counsel. Counsel argued that remand for resentencing was required because the trial court failed to understand that it had discretion to strike the great bodily injury enhancement in the interests of justice. While the appeal was pending, the court recalled defendants sentence (Pen. Code, 1170, subd. (d)) and granted her probation. Appointed counsel, thereafter, moved to strike her opening brief as moot and to file a brief pursuant to People v Wende (1979) 25 Cal.3d 436 (Wende). The motion was granted and counsel filed a Wende brief.
The judgment is affirmed.

On February 4, 2005, pursuant to a negotiated settlement in case No. SF094638B, defendant pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). Imposition of sentence was suspended and defendant was placed on probation for a minimum of 18 months and a maximum of three years, with probation being conditioned upon, inter alia, his obeying all laws. On May 23, 2005, pursuant to a negotiated settlement in case No. SF094030A, defendant pled guilty to misdemeanor driving under the influence (Veh. Code, 23152, subd. (a)) and no contest to unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)), a felony. Imposition of sentence was suspended and defendant was placed on probation for five years for the felony and three years for the misdemeanor. Each grant of probation was conditioned upon, inter alia, that he obey all laws.
On August 24, 2005, defendants probation in the above two cases was summarily revoked based upon allegations that he violated his probation by committing the offenses set forth in Penal Code sections 273.5, 422, and 136.1, subdivision (b)(1). Following a probation revocation hearing for both cases, each grant of probation was formally revoked.
On October 31, the court sentenced defendant to state prison for concurrent terms of 16 months each for the methamphetamine possession and the unlawful taking of a vehicle. The court placed defendant on informal probation for the driving under the influence offense. In each case, the court imposed restitution fines of $200 in accordance with Penal Code sections 1202.4 and 1202.45, plus a $135 laboratory fee for the methamphetamine possession (Health and Saf. Code, 11372.5, subd. (a)). The judgment is affirmed.

Plaintiff filed a claim for defamation in a Washington state court against defendant The Seattle Times Company (Seattle Times) based on what Cowley believed were false statements Seattle Times made in articles regarding his alleged criminal history in California and his alleged failure to disclose that history to the Tulalip tribes in Washington where he worked as a dentist. In response to the lawsuit, Seattle Times filed a petition in Sacramento County Superior Court for issuance of a subpoena duces tecum to Folsom State Prison, where Cowley had worked as a dentist, for all documents within its possession or under its control that related in any way to Cowley. Cowley filed a motion to quash the subpoena, arguing, among other things, the subpoena invaded his right to privacy. The trial court granted Cowleys motion to quash and awarded $6,300 in sanctions, finding the requirements of the subpoena oppressive.
Court hold the trial court did not abuse its discretion in granting Cowleys motion to quash the subpoena or in awarding sanctions, given the overbroad request for documents.

Following the denial of defendant's motion to suppress evidence (Pen. Code, 1538.5), he pled no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) in exchange for which he received the dismissal of other charges and an agreed-upon two year prison sentence, that term to run concurrently with a parole violation. The court imposed fines of $400 in accordance with Penal Code section 1202.45, plus a 10 percent surcharge ($40), and credited defendant with 145 days for time served. The judgment is affirmed.

The jury in this case determined that in locating and negotiating the purchase price of aircraft on behalf of the plaintiff, the defendant aircraft dealers owed the plaintiff the duties of a fiduciary. The jury further found that in providing the plaintiff with misleading information about the negotiated price of the aircraft, the defendants breached their fiduciary duty to the plaintiff.
There is sufficient evidence in the record to support the jury's finding of liability. Although the parties did not have a written agency contract, their course of conduct and the customary practice in the aircraft industry fully supported a finding the aircraft dealers were the plaintiff's agents and therefore obligated to provide the plaintiff with accurate information about the price the aircraft dealers had negotiated with the sellers of the aircraft.
Although court agree the trial court erred in instructing the jury that both brokers and agents owe purchasers the duties of a fiduciary, in light of testimony from the aircraft industry experts offered by the parties and the record of willful deceit on the part of the defendants, the error was harmless. Moreover, the record contains ample evidence from which the jury could reasonably infer the aircraft dealer had retained concealed secret profits equal to or greater than the compensatory damages awarded to plaintiff.
However, court reverse and remand as to the award of punitive damages with instructions that the trial court limit them on a pro rata basis to an amount which in total does not exceed the compensatory damages awarded. Where, as here, the conduct in question only involves economic damage to a single plaintiff who is not particularly vulnerable, an award which exceeds the compensatory damages awarded is not consistent with due process.

F Street Corporation (F Street) appeals a judgment declaring its store in the City of Encinitas (the City) as a public nuisance and an order permanently enjoining it from operating an adult retail store or selling any adult or sexually oriented merchandise at that location. F Street contends (1) that its Encinitas store is not an "adult business" or an "adult retail store" subject to regulation under Chapter 6.10 of the City's municipal code; or alternatively (2) that the definitions of those terms are unconstitutionally vague, facially and as applied to it. F Street also contends that the enforcement of the municipal code provisions and the judgment and permanent injunctive order violate its constitutional right to equal protection of law and that, in any event, the permanent order is unconstitutional insofar as it precludes F Street from selling any adult material at the store. Except as to the final argument, we find F Street's contentions unavailing and thus affirm the judgment. Court agree, however, that the City failed to make the required showing that an order permanently enjoining F Street from selling, offering or visibly storing any adult material is constitutional and thus reverse the order.

In Superior Court of San Diego County case No. SCD181682 (SCD181682), on April 15, 2004, Debra L. Clemons entered a negotiated guilty plea to possessing a controlled substance. (Health and Saf. Code, 11350, subd. (a).) The court suspended imposition of sentence and placed Clemons on probation for three years, including a condition she participate in a drug rehabilitation program (Pen. Code, 1210) and obey all laws. In Superior Court of San Diego County case No. SCD185542 (SCD185542), on November 3, Clemons entered negotiated guilty pleas to possessing a controlled substance and exhibiting a deadly weapon, a syringe. (Pen. Code, 417, subd. (a)(1).) On December 6, the court suspended imposition of sentence and placed Clemons on probation for three years. On August 9, 2005, Clemons admitted violating probation in SCD185542 by failing to register for a drug rehabilitation program. The court reinstated probation. On November 10, the court summarily revoked probation in SCD181682 and SCD185542 for failure of Clemons to participate in a drug rehabilitation program. On January 10, 2006, the court ordered a mental competency hearing. On February 10, the court found Clemons competent. On February 21 the court denied a motion to substitute Clemons's trial counsel. (People v. Marsden (1970) 2 Cal.3d 118.) On March 14, Clemons admitted violating the conditions of probation. The court revoked probation in both cases. It sentenced Clemons to serve the two year middle term in SCD185542 for possessing a controlled substance with a concurrent term for exhibiting a deadly weapon and a consecutive term of eight months for possessing a controlled substance in SCD181682 (one third the middle term). The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b), former rule 30(b).)