CA Unpub Decisions

Dennis R. appeals from a dispositional order adjudging him a ward of the court, ordering him detained in juvenile hall for 60 days, and placing him on probation, after he pleaded no contest to violating Penal Code section 487, subdivision (c) (grand theft, person). The appeal challenges the condition of probation that forbids appellant from attending the same school as the victim of the theft and another minor appellant menaced when the theft occurred. Court conclude that the arguments against this condition were waived, and that they are untenable in any event. Court therefore affirm the dispositional order.

In California, an oral referral fee agreement between attorneys is enforceable. (Mink v. Maccabee (2004) 121 Cal.App.4th 835, 838.) The only writing that is required is one signed by the client, consenting to the fee-sharing agreement. (Ibid; Rules of Prof. Conduct, rule 2-200.) This appeal follows a jury trial in which the jury found that no oral referral agreement existed between two attorneys. The appeal primarily challenges the trial courts ruling permitting the defense to offer expert testimony that the custom and practice in the legal community is to reduce referral agreements to writing. While we conclude this evidence should not have been admitted, Court find that the error was non prejudicial. Court also reject claims that the trial court abused its discretion in finding that the defense had properly designated its expert witness and that the trial court improperly limited cross-examination of the defendant. Court therefore affirm the judgment.

In a plea bargain, the People dismissed enhancement allegations based on defendants prior convictions and defendant agreed that if he violated the terms of his probation the trial court could impose the upper term sentence. Defendant violated his probation and the court imposed the upper term, citing the dismissed priors as the only aggravating factors. Defendant appeals the sentence contending that the trial courts decision to impose the upper term based on his prior convictions violated his right to a jury trial and proof beyond a reasonable doubt under Cunningham v. California (2007) 549 U.S. 270. Alternatively, defendant contends that his plea agreement contained an implied understanding that the dismissed priors would not be considered as aggravating factors in sentencing should he violate his probation. We conclude that such consideration in imposing the upper term sentence did not violate defendants constitutional rights under Cunningham. We further conclude that although consideration of defendants prior convictions to impose the upper term breached an implicit term of his plea bargain, the error was harmless because it is not reasonably probable defendant would obtain a better result on a remand for resentencing. Therefore, Court affirm the judgment. Court grant defendants unopposed motion to correct the trial courts minute orders and abstract of judgment to show that he was convicted under Penal Code section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury.

In a plea bargain, the People dismissed enhancement allegations based on defendants prior convictions and defendant agreed that if he violated the terms of his probation the trial court could impose the upper term sentence. Defendant violated his probation and the court imposed the upper term, citing the dismissed priors as the only aggravating factors. Defendant appeals the sentence contending that the trial courts decision to impose the upper term based on his prior convictions violated his right to a jury trial and proof beyond a reasonable doubt under Cunningham v. California (2007) 549 U.S. 270. Alternatively, defendant contends that his plea agreement contained an implied understanding that the dismissed priors would not be considered as aggravating factors in sentencing should he violate his probation. We conclude that such consideration in imposing the upper term sentence did not violate defendants constitutional rights under Cunningham. We further conclude that although consideration of defendants prior convictions to impose the upper term breached an implicit term of his plea bargain, the error was harmless because it is not reasonably probable defendant would obtain a better result on a remand for resentencing. Therefore, Court affirm the judgment. Court grant defendants unopposed motion to correct the trial courts minute orders and abstract of judgment to show that he was convicted under Penal Code section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury.

On the fourth day of the burglary trial of defendants Eric Tremayne Wooden and Adrian Keith Wooden,[1]the prosecutor learned for the first time that the burglary scene had been examined for fingerprints. The police reports in the case made no mention of fingerprinting. A single fingerprint had been recovered, but was not suitable for identification through the automated fingerprint identification system. After the presentation of evidence and during argument to the jury, the prosecutor learned that the fingerprint did not belong to either defendant. The trial court precluded presentation of evidence pertaining to the fingerprint at trial and later prohibited defense argument to the jury on the lack of fingerprint evidence.
We conclude the manner in which issues pertaining to the fingerprint evidence were resolved at trial was error. However, Court hold that any error was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt and therefore affirm the judgment.

Minor Orlando S. appeals from an order declaring him a ward of the court under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging that he committed one count of second degree robbery of Jesus Cruz on a theory he aided and abetted the perpetrator who committed the robbery. (Pen. Code, 211, 212.5.) Orlando was declared a ward of the court and ordered home on probation on April 27, 2007. He timely appealed the judgment.

Moses Vargas appeals from the judgment entered after a jury convicted him of three counts of second degree murder resulting from a car crash after he evaded pursuing police at high speeds while driving under the influence of phencyclidine (PCP). (Pen. Code, 187, subd. (a), 189; all further undesignated code section references are to the Penal Code). Vargas contends that the trial court erred, and violated his constitutional rights, by refusing to instruct the jury on the version of section 22 that was current at the time of the alleged crime, which would have allowed Vargas to present evidence of voluntary intoxication that prevented him from forming the mental state required for second degree murder. The Attorney General concedes, and we agree, that the trial court erred prejudicially and that Vargas conviction must be reversed on this point. Court decline to consider two other issues the parties have briefed.

In this appeal, Dianne Starling (Dianne) challenges two orders related to child support for her two sons. First, she challenges the trial courts order that she reimburse her former husband, Kenneth Harold Starling (Kenneth), the amount of Social Security disability payments she received on behalf of the children that should have been credited toward the child support Kenneth paid. Second, she challenges the basis for the trial courts determination of her income in ruling on her request for modification of child support. Court are hampered in our review of the courts rulings by an inadequate record on appeal. Based upon the record before us and the rules of appellate review, Court affirm both orders.

Defendant, Shaun Durand Lee, appeals from his convictions for carjacking (Pen. Code,[1] 215, subd. (a)), grand theft of an automobile ( 487, subd. (d)(1)), and felony petty theft with a prior conviction. ( 666.) Also, the trial court found he was previously convicted of a serious felony and served three prior prison terms. ( 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly relied upon his prior juvenile adjudication to double his sentence and imposed a consecutive sentence for felony petty theft. Defendant also argues that the sentence imposed as to his petty theft conviction must be stayed pursuant to section 654, subdivision (a). Court affirm with a minor modification.

Tasha S., the mother of dependent children Angela C. (born 1998), Veronica C. (born 2000), Cassandra A. (born 2004), and Emilio C. (born 2007) (collectively, the children), appeals from the dependency courts order asserting jurisdiction over the children pursuant to Welfare and Institutions Code sections 300 and 361. She contends that the dependency court, by characterizing her conduct as torture, erroneously applied the wrong standard to an allegation of cruelty pursuant to section 300, subdivision (i). Court disagree and affirm.

Brenda R. (Mother) appeals from several orders made by the juvenile court regarding her children, Jennifer and Jesus. Department concedes that most of the contested orders should be reversed and that said disposition renders Mothers other claims of error moot. Having examined the record, Court conclude that Departments concession of reversible error is well taken. Court therefore only briefly summarize the operative facts.

Juan T. (Juan) appeals from the judgment of November 19, 2007, declaring his daughters Valery, born in December 2006, and Emily, born in August 2000, dependents of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the sustained jurisdictional allegations. As substantial evidence supports the findings under section 300, subdivision (j), Court affirm the judgment and orders.

Michelle B. (mother) and Richard T. (father) appealed from an order of the juvenile court terminating their parental rights to their three children, K.T., Rickey T. and Michelle T., and establishing adoption as their permanent plan. (Welf. & Inst. Code, 366.26, subd. (c)(1).)[1] They claimed that the juvenile court's finding of adoptability was not supported by substantial evidence. After the juvenile court issued its order, the children were removed from their foster home. The parents and Child Welfare Services (CWS) requested that we reverse the judgment terminating parental rights because the adoptive placement failed and the children are no longer likely to be adopted. Court reverse and remand.

After a joint trial before two juries, defendants Raymond Nelson Coleman and Andre Marcus Allen were found guilty of first degree murder (Pen. Code, 187)[1]and second degree robbery ( 211). Colemans jury made a special finding that he intentionally and personally discharged a firearm causing great bodily death or injury, while Allens jury acquitted him of the firearm enhancement. ( 12022.53, subd. (d).) Each defendant was sentenced to life in prison without the possibility of parole for first degree murder and Coleman received an additional 25 years to life for the firearm enhancement. The sentence for each defendants robbery conviction was stayed pursuant to section 654.
Defendants appeal, contending the trial court erred in allowing impeachment with a prior conviction, in excluding proffered expert testimony, in instructing the jury, and in imposing court security fees and parole revocation fines. Court strike the parole revocation fine for each defendant, and otherwise affirm the judgments.