CA Unpub Decisions

Appellant left his home in Northern California and traveled to Poway where he attempted to drag his estranged wife from her car as she was leaving for work one morning. At trial appellant testified he just wanted to give his wife some of her property.
Appellant was convicted of attempted kidnapping and inflicting corporal punishment on his wife. On appeal he contends the trial court erred in permitting the prosecution to offer evidence of prior acts of domestic violence and kidnapping and in instructing the jury. Court find no error and affirm appellant's conviction.

In November 2005 a jury found Defendant was a sexually violent predator within the meaning of Welfare and Institutions Code section 6600 et. seq., the Sexually Violent Predators Act (the SVP act). Accordingly, Defendant was committed to the State Department of Mental Health at Atascadero, California, to be confined there for a two year term. Defendant appeals, contending the evidence does not support the finding he is a sexually violent predator. In particular, he believes one of his prior convictions is not a predicate sexually violent offense under the SVP act. Court affirm the judgment.

Plaintiffs filed separate but later consolidated proposed class action lawsuits (hereafter class action lawsuits) against defendants and appellants Pacific Bell Wireless LLC and Cingular Wireless LLC (collectively Cingular), asserting various causes of action based on alleged misrepresentations made by Cingular to its customers. Cingular filed motions to compel arbitration relying on arbitration clauses in its service contracts. The trial court denied the motions, finding the arbitration clauses procedurally and substantively unconscionable. Cingular appeals.
The order denying the motion to compel arbitration is affirmed.

A jury convicted defendant as charged of kidnapping for rape (Pen. Code, S 209, subd. (b)(1); count 1), assault with intent to commit rape (S 220; count 2), second degree robbery (S 211; count 3), and assault by means likely to produce great bodily injury (S 245, subd. (a)(1); count 4). After denying a new trial motion, the trial court sentenced Threats to prison for an indeterminate term of life with the possibility of parole for the count 1 aggravated kidnapping and a consecutive three year term for the count 3 robbery, staying the sentence on the remaining counts under section 654.
Threats appeals, contending there was insufficient evidence to support his convictions of robbery and kidnapping for rape, and that the trial court prejudicially erred by failing to instruct the jury on petty theft as a lesser included offense of robbery. Court affirm.

On May 1, 2005, an officer with the Jackson Police Department stopped defendant's vehicle for expired registration tags. The officer smelled alcohol on defendant's breath and observed that her eyes were red and watery. When asked if she had been drinking, defendant admitted consuming three "Kamikazes." After performing several field sobriety tests, the officer determined defendant was driving under the influence of alcohol. After being placed in the patrol car, defendant kicked out the rear window and had to be forcibly removed. Defendant also refused to allow herblood to be drawn and spat in the face of the person who attempted to draw it. She was charged in case No. 05CR7911 with vandalism, a
felony (Pen. Code, S 594, subd. (a)); simple battery, a misdemeanor (SS 242,243, subd. (a)); obstructingan officer, a misdemeanor (S 148, subd. (a)(1)); driving under the influence of alcohol ordrugs, a misdemeanor (Veh. Code, S 23152, subd. (a)); driving while having a 0.08% orhigher blood alcohol content, a misdemeanor (id., S 23152, subd. (b));and driving with a suspended license,a misdemeanor (id.,S 14601.1, subd. (a)). With respect to the drivingunder the influence counts, it was further alleged that defendant refused tosubmit to a chemical test (id., S 23577) and had a prior conviction fordriving under the influence (id., S 23152, subd. (a)).
The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

Appellant, the mother of the minors, appeals from the juvenile court's order terminating her parental rights. (Welf. and Inst. Code, SS 366.26, 395.) Appellant claims the juvenile court's order must be vacated because the minorsdid not receive proper notice of the hearing and the juvenile court failed to ascertain why the minors were not present at the hearing. Court affirm.

Petitioner, mother of the minors,seeks an extraordinary writ (Cal.Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing(undesignated section references are to the Welfare and Institutions Code). Petitioner contends the court erred in concluding reasonable services wereprovided because the services were not tailored to her needs. Court deny the petition.

A jury convicted with attempted unlawful taking of a vehicle(Veh. Code, S 10851, subd. (a), Penal Code, S 664)and dissuading a witness by force orthreat (S 136.1, subd. (c)(1)). Canela admitted allegations that he had suffered a felony conviction that constituted both a serious felony prior and astrike prior (SS 667, subd. (a)(1), 667, subds. (b)_ (i), 668, 1170.12, 1192.7,subd. (c)). The court sentenced him to a total term of 11 years 8 months inprison. On appeal, Canela contends there is insufficient evidence to supporthis conviction under section 136.1, subdivision (c)(1) for preventing or dissuading a witness by force or threat. He further contends the court erred by failing to instruct the jury on making a threat to a witness under section 140 as alesser included offense of preventing or dissuading a witness under section1 36.1. Court reject these contentions and affirm the judgment.

Appellant appeals a trial court's ruling that the owners of an adjacent property did not violate his nonexclusive easement when they regraded a slope subject to the easement. Court affirm.

Appellant appeals from a post judgment order modifying the parenting schedule set forth in a stipulated judgment that she entered intowith her ex-husband. Appellant argues that the trial court erred by modifying the parenting schedule without requiring Tony to show a change of circumstances.
Court conclude that appellant's contention lacks merit, and accordingly, court affirm.

Appellant appeals from an order of the juvenile court placing his minor son, in an out of state foster homefollowing a post permanency planning hearing. Appellant contends that the court abused its discretion by orderingthe out of state placement. Court affirm the order.

Appellant appeals the 12-month review hearing order terminating her reunification services and designating permanent plans of "another permanent planned living arrangement"(APPLA) for her children. Appellant contends that the juvenile court abused its discretion by terminating her services, that the court erred by not ordering visitation between her and the children, and that there was insufficient evidence to support the designation of APPLA as the children's permanent plans. Court affirm the judgment and remand the case to the juvenile court with directions to make an order concerning visitation.

A jury convicted defendant of false imprisonment by violence(S 237, subd. (a)), plus an enhancement for personally inflicting great bodily injury (S 12022.7, subd. (a)); and torture (S 206). The juryalso found Kelly had three prior "strike" convictions for kidnapping, robbery, and first degree burglary. (SS 207, 211, 459, and 667, subd. (b)(i).) On the torture count, the court sentenced defendant to life with the possibility of parole. The court stayed imposition of the sentence on count 1. (S 654.)

A jury also convicted defendant of false imprisonment by violence (S 237,subd. (a)), plus an enhancement for personally inflicting great bodily injury(S 12022.7, subd. (a)); torture (S 206); and attempted forcible oral copulation. (SS 664/288a, subd. (c)(2).) The court sentenced Defendant to life with the possibility of parole, plus a consecutive one year term on count 3. The court again stayed imposition of the sentence on count 1. (S 654.)

Onappeal, defendant contends the trial courterred by allowing evidence of uncharged acts and by not giving the correct instruction on its use for impeachment. Additionally, defendant asserts the court should have given an instruction on torture. Defendant maintains the trial courterred in its instruction on eyewitness identification. (CALJIC No. 2.92.) Both defendants adopt one another's arguments to the extent they are relevant. In supplemental briefing, defendant argues that the prosecutor committed misconduct and defendant suffered ineffective assistance of counsel, both stemming from the victim's inconsistent testimony in an earlier trial.
Court reject defendants' contentions and affirm.

Defendant was the prime contractor on a medical facility. Defendant appeals from judgments rendered in favor of two subcontractors, plaintiffs,Specialty Builders, Inc. and Construction Hardware Co.
Construction Hardware supplied the fire rateddoors and hardware used in the constructionproject. Specialty Builders was the drywall subcontractor. Specialty Builders sued Defendant for breach of contract and related causes of action. Defendant answered and filed a cross complaint. Construction Hardware also sued Defendant for the value of materials it supplied. Defendant again answered and filed a cross complaint.
The trial focused on whether the dry wall and the doors were installed properly. On appeal, Defendant repeatedly discusses the issues of the project's staffing by Specialty Builders and the sequence of the work. Court conclude substantial evidence supported the judgments and the court's award of attorney fees infavor of Specialty Building was not unreasonable. Court affirm.