CA Unpub Decisions

At the April 5, 2011, disposition hearing, the juvenile court ordered that objector and appellant A.R. (father)--who was at that time incarcerated--would have unmonitored telephone visitation with his children while incarcerated and monitored face-to-face visitation with the children upon his release. The juvenile court, however, refused to order the Department of Children and Family Services (DCFS) to facilitate the telephonic visitation while father was incarcerated, as the parties had requested. On appeal, father contends that the juvenile court erred by refusing to order DCFS to facilitate telephonic visitation while father was incarcerated and by failing to order face-to-face visitation with the children while father was incarcerated.

Appellant D.T. (Mother) appeals from the juvenile court's jurisdictional order finding her daughter, L.T., a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). On appeal, D.T. argues that there was insufficient evidence to establish that she posed a substantial risk of harm to the child. We affirm.

Delfino Delgado appeals from the judgment entered after his jury conviction of second-degree commercial burglary and theft. Delgado's appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On June 9, 2011, we directed appointed counsel to send the record on this appeal and a copy of her brief to Delgado, and we notified Delgado that within 30 days of the date of the notice he may submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. We received no response from Delgado.
We briefly describe the facts and procedural history of the case, the crimes of which Delgado was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
On October 12, 2010, Delgado was charged with second-degree commercial burglary (Pen. Code, § 459[1]) and petty theft with three priors (§ 666). A prior prison term also was alleged (§ 667.5, subd. (b).)
A closed Marsden hearing[2] was held on November 10, 2010. After considering Delgado's complaints about his appointed trial counsel and counsel's response, the trial court denied Delgado's request to replace his counsel.

Carlos D., the biological father of Lana L., appeals the juvenile court's denial of his motion to be declared her presumed father and to place her in his custody. We affirm.

Pursuant to a negotiated agreement Roger Fernandez pleaded guilty in 1992 to aggravated assault and admitted he had personally used a firearm in committing the offense. He was sentenced to an aggregate state prison term of six years and was deported from the United States immediately after his release from prison in 1998. In 2010 Fernandez, again in federal custody awaiting deportation, moved to vacate the 1992 conviction, contending the court lacked jurisdiction to try him as an adult because he was only 16 years old at the time of the offense and his trial counsel was constitutionally ineffective because she failed to advise him of the immigration consequences of his plea. We affirm the trial court's order denying Fernandez's motion.

A jury found appellant guilty of assault by means of force likely to produce great bodily injury in violation of Penal Code[1] section 245, subdivision (a)(1) (count 1) and battery in violation of section 243 – a lesser included offense to that charged in count 2 of the information. On count 1, the court imposed five years in state prison but suspended the execution of that sentence and granted appellant five years of probation with conditions that included he serve 300 days in county jail. The court imposed a concurrent term of 180 days in county jail on count 2.
Appellant contends the trial court erred by excluding photographs the victim in count 1 presented to a detective depicting his injuries. Because the photographs were of injuries from a separate occasion in which the victim had been previously assaulted by someone other than appellant, he maintains the victim's submission of the pictures to the detective suggested the victim attempted to improperly bolster/fabricate evidence against appellant. He also argues the trial court erred by excluding evidence that, when the victim spoke to the police about the prior assault, the victim was willing to provide the name of his assailant even though the victim did not see the person who assaulted him.
With respect to count 2, appellant argues the trial court improperly permitted the prosecutor to cross-examine a defense witness on the subject of appellant's training as a boxer because it was: (a) beyond the scope of direct examination; and (b) inadmissible pursuant to Evidence Code sections 1101, subdivision (a) and 352. Respondent contends the trial court improperly awarded excessive jail conduct credit.
The claims made by both parties are rejected and the judgment is affirmed. Although the trial court applied the wrong statute when ruling on the evidence related to count 1, any error by the court was harmless given (a) the tenuous relevance the evidence had to the defense that appellant never struck the victim, and (b) the testimony from another eyewitness squarely implicating appellant. In addition, evidence that appellant trained as a boxer was properly admitted because it bore on the issue of his ability to inflict great bodily injury. Respondent's position regarding the limitation on conduct credits is not persuasive because the limitation referenced by respondent is not applicable where, as here, a defendant is granted probation.

Otis Fitzgerald Ervin (appellant) was convicted by a jury of second degree robbery (Pen. Code, § 211)[1] on June 9, 2010 (the robbery case). In a separate trial, the court found that he had been previously convicted of robbery in 1991 and grand theft in 2001 and had served a separate prison term for each conviction. While the robbery case was pending, appellant was charged with attempting to dissuade a witness while released on bail (§§ 136.1, subd. (a)(2); 12022.1) (the witness intimidation case). A separate jury trial was held, and on June 14, 2010, appellant was convicted of the dissuading charge. In a separate proceeding, the court found that appellant had been previously convicted of robbery in 1991 and grand theft in 2001. On August 20, 2010, the court pronounced sentence in both cases. Appellant was sentenced to 15 years in the robbery case and a consecutive term of 12 years in the witness intimidation case. He appealed separately from the judgment in both cases. We consolidated the cases on appeal.
With respect to the robbery case, appellant contends: (1) there is insufficient evidence to corroborate the accomplice testimony; (2) the court erred in allowing evidence of his prior robbery conviction; (3) the court improperly refused to give the jury clarifying instructions; and (4) the prosecutor committed misconduct during closing argument. As to the witness intimidation case, he urges: (1) the court erred in admitting evidence that the victim was a witness in the robbery case; (2) the court erred in excluding evidence; and (3) the court committed sentencing error.
We conclude the judgment must be modified to strike one of the five-year terms imposed for appellant's prior serious felony conviction and the sentence for an alleged prison prior. As modified, we affirm the judgment.

A modification decision.

Defendant and appellant Daniel E. Harvey (defendant) was convicted of three counts of oral copulation or sexual penetration of a child under 10 years old (Pen. Code, § 288.7, subd. (b)[1]). On appeal, defendant contends that trial court erred in admitting evidence of his polygraph examination, instructing the jury under CALCRIM No. 330 thereby improperly bolstering the credibility of the minor victim in violation of defendant's constitutional rights, and improperly imposing consecutive sentences. We affirm the judgment.

Michael Shapiro appeals from the court's denial of his petition to enforce his interpretation of a 1998 order modifying the judgment of dissolution of marriage. The trial court correctly interpreted the meaning of the order and its consequences to the parties; accordingly, we affirm.

Appellant David Ayala appeals from a conviction of two counts of attempted second degree robbery (Pen. Code, §§ 664/211),[1] and as to both counts that he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Appellant was sentenced to state prison for five years (three years on count 1, plus one year for the weapon enhancement, and eight months on count 2, plus four months for the weapon enhancement). Appellant was awarded 207 days of actual custody credit and 31 days of conduct credit, for a total of 238 days of presentence credit.
Appellant contends on appeal that (1) the convictions should be reversed because the trial court erred in denying his motion to suppress evidence (§ 1538.5) obtained through the warrantless entry and search of his home and person; (2) insufficient evidence supported his conviction for the second count of attempted robbery; (3) the trial court abused its discretion in imposing the maximum sentence; and (4) the trial court committed sentencing error in failing to award full actual presentence credit. We modify the judgment to award 312 days of presentence credit. In all other respects, the judgment is affirmed.

Jeanne Salamon and James Harry Salamon, wife and husband, appeal from the judgment entered in favor of Maya Cohen Kahaner following a bench trial. They contend the trial court erred in denying their post-trial motions and in assessing compensatory and punitive damages against them. We affirm as to liability, but reverse and remand for further proceedings on the issue of compensatory damages.

Appellant Marathon Entertainment, Inc. filed an arbitration claim alleging that its former counsel, Fox & Spillane LLP, committed malpractice in three separate lawsuits involving former Marathon clients. Fox & Spillane filed a counterclaim asserting that Marathon and its president, Richard Siegel, owed the firm more than $200,000 in unpaid legal fees. After a five-day arbitration hearing, the arbitrator issued a written ruling that rejected all of Marathon's claims and awarded Fox & Spillane $200,208.86 for unpaid legal work. An appellate arbitrator affirmed the ruling, but reduced Fox & Spillane's recovery to approximately $85,000.
Marathon and Siegel filed a petition to vacate the award arguing that the parties' arbitration agreement permitted the trial court to review the merits of the arbitrator's decision. In addition, they alleged that: (1) the arbitrators failed to decide a â€

Twentieth Century Fox Film Corporation (Fox) and Flight Productions, Inc. (Flight), appeal from a judgment based on a jury verdict for respondent Ciaran Barry, a director of photography injured during a film production. We conclude substantial evidence supports the jury's finding that Barry was not a common law employee of Flight. We decline to consider the legal merits of appellants' belated theory that Barry was Flight's statutory employee. Therefore, the workers' compensation exclusivity rule does not preclude Barry's recovery against Flight. Counting on Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), appellants contend that no evidence supports Fox's liability because Fox did not retain control over the safety conditions on the set and did not affirmatively contribute to Barry's injury, whether or not Barry was Flight's employee. But on the special verdict form, the jury was directed to skip the questions relevant to the analysis under Hooker if it found that Barry was not Flight's employee. In response to a separate question on the same form, the jury found that Fox was negligent, and this separate finding of negligence is supported by substantial evidence. Appellants also contend that damages were excessive and that Barry's trial counsel committed misconduct. We disagree with these contentions.
We affirm the judgment.