CA Unpub Decisions

A jury convicted Daniel Schorn Trahan of one count of driving under the influence of alcohol (Veh. Code, 23152, subd. (a));one count of driving with more than a .08 percent blood alcohol level ( 23152, subd. (b)); and, with respect to each count, found that Trahan's blood alcohol level was in excess of .15 percent ( 23578). After Trahan waived his right to a jury trial on the prior conviction allegations of the amended information, the court found Trahan had three priors within the preceding 10 years for driving under the influence, including two convictions in Maricopa County, Arizona, and one in San Diego County. ( 23550, subd. (a), 23626.) The trial court sentenced Trahan to two years eight months in state prison.
On appeal, Trahan's sole contention is that the evidence was insufficient to support the trial court's finding that he is the individual who suffered the prior Arizona convictions. Court affirm the judgment.

In this case Kerry Lee Head was convicted of raping his former wife. At his trial the prosecution called his best friend as a hostile witness because she had told investigators Head had admitted forcing his former wife to have sex with him. On appeal Head argues out-of-court statements made by his best friend to jurors during a break in the trial constituted prejudicial misconduct and require reversal of his conviction.Court affirm.
Although such contact between a witness and jurors is improper, here the record fully supports the trial court's determination Head was not prejudiced by the witness's out-of-court statements. First, the statements the witness made, to the effect she did not believe jurors were allowed to stand in the hall during breaks and a "woman judge" was "all I need," did not in any fashion reach the merits of the case against Head or materially impact the witness's own credibility. Second, the trial court instructed the jury to disregard the witness's out-of-court statements. Because the witness's statements were relatively benign, we have no difficulty concluding the jury followed the trial court's instructions to disregard them. Thus the record rebuts any presumption of prejudice and court therefore affirm the judgment of conviction.

At sentencing the trial court struck the prior drug conviction and one serious/violent felony prior conviction pursuant to section 1385. The court then sentenced Franklin to a determinate term of 11 years.
Franklin appeals, challenging a portion of the sentence imposed by the court. Franklin argues, for the first time on appeal, that the court erred in imposing one year for the prison prior arising out of his 1989 residential burglary conviction. He contends that since the court struck the strike allegation arising from that conviction, the court was without authority to impose a one-year term for the prison prior arising from the same conviction. Court find the contention to be without merit and affirm.

Barbara T. appeals a judgment terminating her parental rights to her minor son Chase S. on the basis of abandonment under Family Code section 7822. Barbara contends she did not "leave" Chase in the care and custody of another person with the intent to abandon him, but instead, Chase's father Fred S. prevented her from having any contact with her son. Barbara further contends the court erred by considering Chase's best interests in making its abandonment findings. Court affirm the judgment.

jury found defendant and appellant Ricky Joseph Carriere, Jr., guilty of driving a motor vehicle while under the influence of alcohol (Veh. Code, 23152, subd. (a)) (count 3); driving a motor vehicle with a blood-alcohol content (BAC) of 0.08 percent or greater (Veh. Code, 23152, subd. (b)) (count 4); and battery on a cohabitant (Pen. Code, 243, subd. (e)(1)) (count 6).[1] In addition, prior to trial, defendant pled guilty to count 5, driving on a revoked or suspended license. (Veh. Code, 14601.2, subd. (a).) Defendant also admitted that he had sustained prior convictions for driving a motor vehicle while under the influence of alcohol (Veh. Code, 23152, subd. (a)) and driving a motor vehicle with a BAC of 0.08 percent or greater (Veh. Code, 23152, subd. (b)) in October 2006 and March 2008. Defendant was placed on formal probation for a period of 60 months on various terms and conditions, including serving 150 days in county jail. Defendant appeals from the judgment.

Appellant K.P. is an infant girl born in March 2009. She appeals from the juvenile courts May 13, 2009, dispositional order offering reunification services to her mother R.C. (Mother), with the goal of returning her to Mothers care. She claims insufficient evidence supports the courts finding that her best interests would be served by offering Mother the services, in view of an earlier court finding, in dependency proceedings involving her three older half brothers S.B., Ka.B., and Ke.B., that Mother negligently caused the death of Ke.B on July 3, 2008. (Welf & Inst. Code, 361.5, subds. (b)(4), (c).)[1] We conclude that substantial evidence supports the courts best interest finding regarding K.P. Accordingly, we affirm the dispositional order.

parental rights as to her two-year-old son G.S. Rather, she argues only that the juvenile court abused its discretion in denying her section 388 petition. For the reasons explained below, Court reject Mothers contention and affirm the judgment.

On June 22, 2007, defendant and appellant Anthony Eugene Golden (defendant) pled guilty to one count of lewd and lascivious acts with a person under 14 years of age, in violation of Penal Codesection 288, subdivision (a); and one count of oral copulation with a person under 18 years of age, in violation of section 288a, subdivision (b)(1). As part of a negotiated plea agreement, defendant was sentenced to the middle term of six years on the first count, and a concurrent term of two years on the second count, for a total term of six years. The sentence, however, was suspended and defendant was placed on probation for 60 months, under specified terms and conditions.
On August 7, 2008, a petition to revoke probation was filed. The following day, defendant denied violating his probation. On October 31, 2008, the trial court held a hearing under People v. Vickers (1972) 8 Cal.3d 451, to revoke defendants probation. Following the testimony of defendants probation officer, Carlos Camacho, the trial court revoked and terminated defendants probation and sentenced defendant to the previously-imposed term of six years. In addition, on March 18, 2009, the trial court imposed a restitution fine of $7,120 under section 1202.4.

On December 20, 2005, defendant Fernando Jose Ramos pled no contest in case No. 05CM4414 to second degree burglary (Pen. Code, 459)and admitted he was armed with a firearm in the commission of the offense ( 12022, subd. (a)(1)). On January 20, 2006, the court placed defendant on probation for five years and ordered him to serve 139 days in jail. The court also ordered defendant to pay a $200 restitution fine and a $20 court security fee.
On May 15, 2008, a jury convicted defendant in case No. 06CM0288 of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 1), and dissuading a witness and victim from reporting a crime ( 136.1, subd. (b)(1); count 2). The jury also found defendant personally inflicted great bodily injury in the commission of the assault ( 12022.7, subd. (a)), and both crimes of assault and dissuading a witness were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).

A jury convicted Jermany Devon Thomas of misdemeanor assault. (Pen. Code, 241, subd. (a).)[1] At the sentencing hearing, the trial court ordered Thomas to register as a member of a criminal street gang. Thomas argues the registration requirement was not supported by sufficient evidence. disagree and affirm the judgment.

On January 18, 2008, appellant, Carl Mark Kalteich, pled guilty to possession of methamphetamine (Health & Saf. Code, 11377) and admitted three prior prison term enhancements (Pen. Code, 667.5, subd. (b)).
On appeal, Kalteich contends the court abused its discretion when it terminated his Proposition 36 probation and sentenced him to a prison term. Court will affirm.

John A. Gleason and Chris A. McDonald entered into a contract with Hassen Bedwan to purchase his cigar shop. The contract went up in smoke when Bedwan called off the deal. The jury found Bedwan liable for breach of contract and fraud and awarded Gleason and McDonald $84,200 in breach of contract damages, $20,000 in fraud damages, and $30,000 in punitive damages.
Bedwan challenges the judgment on four grounds. First, he argues he lacked capacity to enter into a contract to sell the cigar shop because it was owned by his corporation. Second, he argues the evidence was insufficient to support liability for fraudulent misrepresentation. Third, he argues that, as a matter of law, the jury could not award both breach of contract damages and fraud damages. Finally, he argues lost profit damages were not proven with reasonable certainty.

E.R. argues the juvenile court imposed an unconstitutionally vague and overbroad condition of probation in a dispositional order which prohibits him from knowingly associating with criminal street gang or tagging crew members and from individuals using, possessing, selling or under the influence of alcohol or a controlled substance. For the reasons Court discuss post, we conclude the probation condition, reasonably construed, is neither vague nor overbroad.
E.R. also contends the juvenile courts minute order must be corrected to accurately reflect the courts findings at the jurisdictional hearing; the Attorney General agrees. On remand, we direct the juvenile court to correct that minute order to reflect the courts finding E.R. did not commit the offense of resisting and obstructing an officer; the minute order currently and incorrectly states the court dismissed this allegation. The minute order shall also be corrected to delete its reference to the court finding a factual basis for plea as there was no plea in this case.

This case involves two attorneys in a fee dispute relating to their successive representation of a client. After the case settled, Gregory W. Smith, the second attorney to represent the client, filed a declaratory relief action to determine the amount of fees owed to him and to Patricia J. Grace, the clients first attorney. Grace cross-complained in the declaratory relief action, seeking enforcement of her lien and alleging causes of action for breach of fiduciary duty, fraud, and intentional interference with economic advantage. Smith filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. (Subsequent statutory references are to the Code of Civil Procedure.) The trial court denied the motion, and Smith now appeals.
As we discuss below, the motion was properly denied because Graces cross-complaint did not arise from Smiths protected activity, but the underlying dispute between the parties as to their entitlement to attorney fees. Court therefore affirm the trial courts order denying the motion. We do not, however, find that Smiths appeal was frivolous within the meaning of the anti-SLAPP statutes attorney fee provision, and therefore deny Graces motion for attorney fees.