CA Unpub Decisions

Defendant pled guilty and was placed on probation on September 26, 2003. In 2006, defendant was found in violation of probation for failing to pay his restitution fine payment. (Pen. Code, 1202.4, subd. (b).)[2] In 2007, defendant filed separate notices of appeal from (a) a purported order relating to the violation of probation entered on July 26, 2006, and (b) the underlying guilty plea entered in 2003. Because the appeals are untimely, Court affirm.

On November 21, 2007, a felony complaint was filed in the Superior Court of Riverside County charging defendant with one count of uttering a criminal threat (Pen. Code, 422) while personally using a firearm (Pen. Code, 12022.5, subd. (a) and 1192.7, subd. (c)(8)) (count 1), one count of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)) (count 2), and one count of resisting, delaying and obstructing a police officer in the discharge of his duties (Pen. Code, 148, subd. (a)(1) (count 3). The complaint further alleged that appellant had served one separate prison prior term (Pen. Code, 667.5, subd. (b)).
On January 7, 2008, defendant, represented by counsel, pled guilty to count one in exchange for the imposition of a three-year prison term, to run concurrent with any parole violation. In accordance with the negotiated disposition, the court ordered defendant to serve a three-year prison sentence, pay $200 in restitution, with an equal but stayed fine under Penal Code section 1202.45, to provide DNA samples, to pay a $20 court security fee, and awarded him 75 days of presentence credits. Victim restitution was left to be determined. Pursuant to the plea agreement and in the interests of justice, the remaining counts and special allegations were dismissed and stricken on motion of the district attorney (Pen. Code, 1385). The judgment is affirmed.

This appeal is from an order denying defendants request for modification of his restitution fine, imposed in 1988, and is authorized by Penal Code section 1237, subdivision (b). The judgment is affirmed.

Defendant Robin Freeman was convicted of possessing marijuana while in a penal facility and possessing a weapon while in a penal facility. On appeal defendant contends (1) there was insufficient evidence to sustain a conviction for possession of marijuana because no evidence was introduced to show she possessed a usable amount and (2) the trial court committed Cunningham error when it imposed the upper term sentences for both charges. Court affirm.

On April 26, 2006, appellant, John Wesley Turner, called his wife, R.T., asking how much money they had in the bank. When she told him he could not have the money in their bank account, Turner began calling her derogatory names. R.T. and Turner again began arguing when R.T. arrived home later and found the house had been destroyed. When Turner went to tell R.T.s children to get dressed, R.T. ran out of the house. Turner managed to grab her at the end of the driveway and pulled her back into the residence. As R.T. attempted to flee again, Turner hit her with a closed fist and choked her with his arm. R.T. managed to free herself and ran into an orchard and hid. This encounter left R.T. with scratches and three red marks on her face and neck, redness on her left cheek, and a red mark on her left arm. Turner left before police arrived but was arrested later that day (case No. 163447).
The judgment is affirmed.

Minor appellant Anthony T. contends the juvenile court abused its discretion in placing him at the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ)[1]against the recommendation of his evaluating probation officers. Finding no abuse of discretion, Court affirm the commitment decision, but instruct the juvenile court to modify the DJJ commitment order to correct a clerical error regarding Anthonys maximum period of confinement.

D.A. appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) to two of her children and an order establishing a legal guardianship as the permanent plan for a third child. She contends, in the early stages of the childrens dependency, the superior court should have found her incompetent and appointed a guardian ad litem to represent her interests. Alternatively, she argues her trial counsel was ineffective for not raising the issue. On review, Court affirm.

Patricia Ramirez (petitioner) asks this court for a writ of review to inquire into and determine if the Workers Compensation Appeals Board (WCAB) lawfully concluded her husband was not an employee of either Juan Medina or Vlot Brothers Custom Heifer Raising (Vlot Brothers) at the time of his death. (Lab. Code, 5950, 5952; Cal. Rules of Court, rule 8.494.) Finding substantial evidence supporting the WCABs determination, Court must deny the petition.

Terri and Ahmad Alkayali appeal from the judgment entered against them in the lawsuit they filed against their former landlord, Gordon Logan. The Alkayalis assert the trial court erred in refusing to allow them to introduce portions of Logans deposition testimony which are inconsistent with his trial testimony. The Alkayalis assert the deposition testimony was relevant to determining the credibility of Mr. Logan, and therefore admissible under Evidence Code section 780. We agree the trial court erred in refusing to admit the deposition testimony. Although the portion of Logans trial testimony contradicted by his deposition actually benefitted the Alkayalis case, the inconsistency cast doubt on Logans credibility as a witness. Because Logan testified at trial on a number of other matters, Logans credibility was at issue. We conclude, however, the trial courts error does not warrant reversal because the Alkayalis failed to demonstrate prejudice. Accordingly, Court affirm.

Plaintiff and appellant Howard, Strickroth & Parker (the Howard Firm) appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the demurrer of the Balboa Bay Club, Inc., (the Club) to the Howard Firms conversion and constructive trust causes of action, and granted judgment on the pleadings against its declaratory relief claim.
We conclude the trial court in the present case did not err. The James Trust was at best a contingent beneficiary of the levied funds held by the Club at the time the James Trust created the Howard Firms lien. Accordingly, the Howard Firm could obtain no greater interest in the funds than that held by the James Trust. Because the James Trusts unqualified right to the levied funds never materialized, the lien never attached to those funds. Court therefore affirm.

Edith P. (mother) and Duane P. (father) appeal from the juvenile courts order terminating their parental rights and freeing Matthew, now age 10, Steven, 7 years old, and Christopher, age four, for adoption. (Welf. & Inst. Code, 366.26; all further unlabeled section references are to this code.) Father and mother contend the juvenile court erred in concluding they failed their burden to demonstrate the benefit exception ( 366.26, subd. (c)(1)(B)(i), former subd. (c)(1)(A)) applied to avoid terminating parental rights. Finding no basis to overturn the juvenile courts conclusion, Court affirm the termination order.

On April 13, 2006, appellant Lambert G. Chambers, a state prison inmate, filed a personal injury complaint alleging that two correctional officers were responsible for the injuries he suffered when he was attacked by another inmate at Salinas Valley State Prison. In a minute order dated May 24, 2007, the trial court dismissed the action due to Chambers failure to obtain service, appearance, default or dismissal of defendant in a timely manner.
Chambers appeals from the minute order dismissing his personal injury action, arguing that the trial court abused its discretion because he could not prosecute the action due to his incarceration. For the reasons stated below, we conclude that Chambers seeks review of a nonappealable order and therefore the appeal must be dismissed. We further conclude that, even assuming the order was appealable, the trial court did not abuse its discretion in dismissing the action.

Defendant Rene Joseph Gilbert was convicted after jury trial of driving under the influence of alcohol (DUI) (Veh. Code, 23152; count 1), DUI with a blood alcohol level of 0.08 percent or more (Veh. Code, 23152; count 2), and driving with a suspended or revoked license (Veh. Code, 14601.2, subd. (a); count 3). The trial court found all prior allegations in the information to be true, including that defendant had a prior strike (Pen. Code, 667, subd. (b)-(i), 1170.12)[1] and three prison priors ( 667.5, subd. (b)). Defendant was sentenced to seven years in state prison: in count 1, the felony DUI, the midterm of two years, doubled to four years pursuant to the strike prior; consecutive one-year terms for the each of the three prison priors; and in count 3, driving with a suspended or revoked license, a concurrent sentence of 90 days in county jail. The prison term for the felony DUI with a blood alcohol level of 0.08 percent or more (count 2) was stayed pursuant to section 654. The court also imposed, among other amounts, a restitution fine of $2,800 ( 1202.4), a suspended parole revocation restitution fine in the same amount ( 1202.45), and a court security fee of $20 ( 1465.8).
On appeal, defendant contends the trial court erred in calculating the restitution fine by considering the count for which punishment was stayed and that the correct amount of the restitution fine is $1,400. He argues that his counsels failure to object to the calculation error constituted ineffective assistance. The People concede the calculation error. Court agree with the People and, after correcting a clerical error, Court affirm the judgment as modified.

Appellant George Lewis Kendall appeals from the trial courts January 22, 2007 order denying his petition for Penal Code section 1203.4 relief.
Court affirm.