CA Unpub Decisions

Appellant Portner is an attorney. Respondent Wilkerson is a chiropractor. From February 1999 through August 2000, Wilkerson provided chiropractic services to Portners client, Junas Taclay, who had been injured in an automobile accident in February 1999. Wilkerson charged Taclay $2,095.66 for his services. On January 17, 2001, Taclay and Portner executed a document entitled Lien Authorization to Pay Chiropractic Fees - and Constructive Trust for the Chiropractor (Lien Authorization). The Lien Authorization had two parts. Under the first part, the Patient Agreement, Taclay authorized Wilkerson to furnish his attorney (Portner) with medical information and authorized Portner to pay Wilkerson for his chiropractic services from any funds held for Wilkerson in his client trust account. It further stated that Taclay was directly and fully, personally responsible to the above Chiropractor for all chiropractic billing and that this obligation [was] not contingent upon [his] receiving any settlement for [his] claim. (Italics omitted.) The Patient Agreement also contained the following provision: I agree to be responsible for any legal fees, court, or collection agency costs incurred, which are necessary to enforce this agreement. Those additional expenses for legal or collection agency fees or court costs, will be added on top of the billings and/or fees of said Chiropractor along with the highest interest rate permitted by law, calculated from the date chiropractic services were first rendered. I understand that, in view of the protracted time for cases to be tried, I waive any right to statute of limitations for collections.

Respondent and appellant, Board of Parole Hearings (hereafter, the Board), appeals from the superior courts ruling, in response to a habeas corpus petition filed by petitioner and appellee, Joey Wayne Hatfield, that the Board erred by deferring Hatfields next parole suitability hearing for two years. The order is reversed.

Following a preliminary hearing in which defendant and appellant Dontay Cooper was held to answer on seven felony counts and related firearm use allegations, defendant entered no contest pleas to two counts of second degree robbery (Pen. Code, 211) and admitted the personal use of a firearm (Pen. Code, 12022.53, subd. (b)). Pursuant to an agreed upon disposition, defendant was sentenced to concurrent 12-year terms on the two counts, comprised of the low term of 2 years for the robberies and 10 years for the weapon enhancements. The court awarded defendant appropriate custody and conduct credits and imposed all pertinent fines and fees.
Defendant filed a notice of appeal from the judgment indicating the appeal was based on the sentence of matters occurring after the plea pursuant to California Rules of Court, rule 8.304. Counsel was appointed to represent defendant on appeal. Appointed counsel filed a brief raising no appellate issues and requesting this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant was advised by letter of his right to submit a brief within 30 days. No brief has been filed by defendant.

Vanderveer Lenora appeals from a judgment convicting him of transporting cocaine base (count one), selling cocaine base (count two), and possessing cocaine base for sale (count three), with true findings that he had incurred prior drug-related convictions requiring enhancement of his sentence under Health and Safety Code section 11370.2, subdivision (a). He contends the trial court erred in denying his pretrial motion for discovery to determine if the procedures used by the San Diego County Jury Commissioner's office (the County) for summoning jurors conformed with his constitutional right to a jury drawn from a cross-section of the community. He also argues the trial court erred in failing to: (1) stay his sentence for count two under Penal Code section 654; (2) strike the Health and Safety Code section 11370.2 enhancements for counts two and three; and (3) hold a hearing to address his postconviction assertion that he had been provided ineffective representation at trial. Court find no reversible error, except we modify the judgment to strike the Health and Safety Code section 11370.2 enhancements for counts two and three. As so modified, the judgment is affirmed.

Appellant Alan Roger Goddu appeals from a judgment of conviction. A jury convicted Goddu of one count of assault with a deadly weapon (Pen. Code,[1] 245, subd. (a)(1)) arising from an incident in which Goddu pointed a flare gun at an off-duty law enforcement officer after Goddu entered the officer's lane while making a wide right turn and the officer swerved and accelerated to avoid colliding with Goddu's vehicle. On appeal, Goddu challenges the sufficiency of the evidence to support his conviction. Specifically, Goddu argues that the evidence was insufficient to prove that the flare gun constituted a "deadly weapon" under the statute. According to Goddu, the evidence did not establish that the flare gun Goddu possessed "was capable of producing and likely to produce, death or great bodily injury." (Italics omitted.)
Court conclude that there is sufficient evidence to support the jury's finding that the flare gun Goddu pointed at the victim was a "deadly weapon" under the circumstances presented here. Court therefore affirm the judgment.

A jury convicted defendant Orlanders Carter of making a criminal threat under Penal Code[1] section 422. On appeal, Carter claims the trial court violated his constitutional and statutory rights when it rejected defense counsel's request to conduct a section 1368 competency hearing after Carter refused to follow counsel's advice and testify at trial. Carter also claims the court violated his constitutional rights when it denied his objection to the prosecution's use of a peremptory challenge. Finally, he claims there is insufficient evidence in the record to show he possessed the requisite intent to support a conviction for violation of section 422.
Court conclude the trial court acted well within its discretion when it extensively questioned Carter outside the presence of the jury, found he understood the nature of the proceedings and the evidence against him, and found he understood that his decision not to testify was against the advice of defense counsel. Court thus conclude the trial court was not presented with a substantial change of circumstances or with new evidence that gave rise to a "serious doubt" about the validity of Carter's competency.

We also conclude that Carter did not make a prima facie showing of purposeful discrimination by the prosecution in exercising its peremptory challenges to prospective jurors, and that there is substantial evidence in the record to support the jury's verdict that Carter made a criminal threat under section 422. Court thus affirm the judgment of conviction.

Jeffrey Piro (Jeffrey), one of three equal beneficiaries of a trust established by his mother (the Trust), petitioned under Probate Code[1] section 17200 for an order compelling the Trustee of the Trust, his brother Gary Piro (Gary), to distribute one-third of the Trust assets in kind to Jeffrey. The petition also sought orders denying Gary any compensation, enjoining Gary from incurring any costs for appraisers or legal fees on behalf of the Trust, and other relief. Jeffrey subsequently filed a supplemental petition seeking additional orders removing Gary as Trustee, for an accounting, and for restitution of funds allegedly spent by Gary in violation of his Trustee obligations. Gary's responses sought an order denying all relief sought by Jeffrey, and affirmatively sought an order (1) permitting all of the Trust's interests in real property to be sold, (2) authorizing payment of Trustee and attorney fees and (3) for costs as sanctions against Jeffrey. The court granted Gary's request for an order permitting the Trustee to sell the Trust's real property (and conversely denying Jeffrey's request for distribution of the real property in kind), approved Trustee fees to Gary and attorney fees to the attorneys for the Trust, and set a further hearing to resolve the remaining disputes between the parties. Jeffrey timely appealed the order.

Martha Alicia Montoy pleaded guilty to five counts of burglary (Pen. Code, 459),[1] four counts of grand theft ( 487, subd. (a)) and one count of receiving stolen property ( 496, subd. (a)) under People v. West (1970) 3 Cal.3d 595. Montoy also admitted that she had three prior probation denial convictions ( 1203, subd. (e)(4)). In return, Montoy was given an indicated sentence of three years. Montoy was sentenced in accordance with the indicated sentence. The trial court granted Montoy's request for a certificate of probable cause.

A jury convicted John Stewart of robbery (Pen. Code, 211) and burglary ( 459). In a separate proceeding, Stewart admitted that he previously served a prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Stewart to four years in prisonthe middle term of three years on the robbery count and a one year enhancement for the prior prison term. The court also sentenced Stewart to the middle term of two years on the burglary count, but stayed the sentence pursuant to section 654.

Jeffrey Piro (Jeffrey), a beneficiary of a trust established by his mother (the Trust), petitioned under Probate Code[1] section 17200 for an order compelling the Trustee of the Trust, his brother Gary Piro (Gary), to distribute Jeffrey's share of the Trust assets in kind to Jeffrey and for other relief. In a supplemental petition, Jeffrey sought additional orders (1) removing Gary as Trustee, (2) requiring an accounting, and (3) for restitution of funds allegedly spent by Gary in violation of his obligations as Trustee. Gary's responses sought an order denying all relief sought by Jeffrey, and affirmatively sought orders permitting all of the Trust's interests in real property to be sold, authorizing payment of Trustee and attorney fees, and ordering an in-kind division of the only other significant Trust asset (the Del Mar Race Track Box). The court, after entering a February 29 order granting Gary's request for permission to sell the Trust's real property and approving Trustee fees to Gary and attorney fees to the attorneys for the Trust, scheduled a further hearing to resolve the remaining disputes between the parties. Shortly before the continued hearing date, Jeffrey filed another supplemental petition restating his request to remove Gary as Trustee and asserting (1) the Del Mar Race Track Box was not a Trust asset, (2) grounds existed to remove the Trust's attorneys, and (3) the judge should be disqualified because of bias. After the continued hearing, the court denied Jeffrey's request to remove the Trustee and Trustee's attorney, found the Del Mar Race Track Box was a Trust asset, and awarded sanctions as requested by Gary. Jeffrey timely appealed the order.

Alejandro L. appeals orders placing his son, Gabriel L., with Gabriel's mother, Ashley O., providing family maintenance services for Ashley and terminating his services. The case presents the following issue: If, after a period during which both parents were offered reunification services, the child is then placed with one parent, what is the extent of the court's discretion to decide whether to continue to offer services to the noncustodial parent. As we shall explain, the court's discretion should be examined under Welfare and Institutions Code section 364[1] and is similar to the court's broad discretion as to whether to offer services under section 361.2 because in both situations the child is not in out-of-home placement, but in placement with a parent. We conclude the court may, but is not required to, continue services for the noncustodial parent. Given this discretion, we further conclude the court did not abuse its discretion by terminating Alejandro's services when placing Gabriel with Ashley and providing family maintenance services for her. Accordingly, Court affirm the court's orders.

In 2006 Gregory Dwaine Godfrey entered a negotiated guilty plea to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[1] and admitted a prior serious felony conviction ( 667, subd. (a)). The court suspended imposition of sentence, placed him on three years' probation, imposed a $200 restitution fine ( 1202.4, subd. (b)) and imposed and stayed a $200 probation revocation fine ( 1202.44). In 2007 the court revoked probation, suspended execution of a nine-year prison sentence (the four-year upper term for assault and five years for the serious felony prior) and reinstated probation. In 2008 the court revoked probation, executed the prison sentence, imposed a $1000 restitution fine ( 1202.4, subd. (b)) and imposed and suspended a $1000 parole revocation fine ( 1202.45).

A jury found defendant and appellant Earnest Lee Jones guilty of attempted voluntary manslaughter (Pen. Code,[1] 664 and 192, subd. (a), count 1), assault with a semi-automatic firearm upon four different individuals ( 245, subd. (b), counts 2, 4, 6, 7), attempted murder ( 664 and 187, count 3), and discharging a firearm at an occupied vehicle ( 246, count 5). The jury also found true various enhancement allegations as to each count. The trial court sentenced defendant to a determinate prison term of 17 years, plus an indeterminate term of 32 years to life.
Defendant filed his first appeal (People v. Ernest Lee Jones (Dec. 17, 2004, E034706 [nonpub. opn.] (E034706 opn.)) and contended the trial court failed to instruct the jury sua sponte with CALJIC No. 8.40, defining voluntary manslaughter. (E034706 opn. p. 4.) Court affirmed the judgment but agreed with the People that the court had improperly struck or stayed the imposition of an enhancement under section 12022.53, subdivision (d), on count 5. (E034706 opn. p. 12.) We thus remanded the matter for resentencing. (E034706 opn. p. 13.) On remand, the trial court imposed the section 12022.53, subdivision (d) enhancement on count 5.

After the underlying medical malpractice action of plaintiffs Stephen A. Campitelli, Valerie L. Campitelli,[1]and John Fallon (also identified in the record as John R. Conturso, Jr.,) was dismissed, plaintiffs sued the individual attorneys and law firms that had represented them at various times in the underlying action. The trial court sustained defendants demurrers to the second amended complaint (SAC) of Stephen and Valerie without leave to amend on the grounds of statutes of limitations, failure to properly plead fraud with specificity, and failure to allege facts sufficient to show causation. The trial court also sustained defendants demurrers to the third amended complaint (TAC) of John[2]on the ground of failure to plead causation. On appeal from the ensuing judgment of dismissal, plaintiffs contend their claims related back to a timely-filed original complaint; their claims were timely filed based on late discovery of their causes of action; and they pleaded sufficient facts to allege viable causes of action. We find no error with respect to the trial courts rulings as to Stephen and Valerie, and we affirm the judgment of dismissal as to them. However, Court conclude the trial court erred in sustaining the demurrers of certain defendants as to Johns causes of action for legal malpractice, breach of fiduciary duty, and breach of contract, and we therefore reverse in part.