CA Unpub Decisions

Plaintiff and appellant Jen-Kang Yang (Yang) appeals from an order awarding defendant and respondent Larry Fields (Fields) $25,789.50 in attorney fees and costs after a judgment of dismissal was entered in Fieldss favor pursuant to Code of Civil Procedure section 425.16. Yang contends the trial court lacked jurisdiction to award fees after judgment had been entered, and that the court abused its discretion concerning the scope and amount of fees awarded. Yang also asks that we sanction Fields and his attorney for making allegedly false representations in Fieldss motion for attorney fees. Court reverse the attorney fee award and deny Yangs request for sanctions.

G.W. challenges the probation condition requiring her to maintain satisfactory grades imposed after the juvenile court found she had committed assault with a deadly weapon. Court affirm the order.

Defendants Jaime Ceren (Ceren) and Rene Soriano (Soriano) appeal from a judgment entered after a jury convicted them and their codefendant Wilber Rodriguez (Rodriguez)[1]of count one, second degree robbery of victim Jorge Paraza (Pen. Code, 211), and count two, assault by means likely to produce great bodily injury against victim Jorge Paraza ( 245, subd. (a)(1)). The jury found true as to both defendants that as to counts one and two a principal in the offense was armed. ( 12022, subd. (a)(1).) The jury found not true that Soriano personally inflicted great bodily injury with respect to counts one and two. ( 12022.7, subd. (a).)
Ceren was sentenced to five years in state prison, which consisted of: (1) the midterm of three years as to count one, plus one year for the firearm enhancement, and (2) one year (one-third the midterm) as to count two, with the firearm enhancement being stayed. Ceren was awarded 397 days of custody credit, which consisted of 265 days of actual custody plus 132 days of conduct credit. Ceren was ordered to pay a $200 restitution fine ( 1202.4, subd. (b)) and a suspended $200 parole revocation fine. (1202.45.) Soriano received an identical sentence.
The abstract of judgment is ordered corrected to reflect that defendants Ceren and Soriano were convicted of assault with force likely to produce great bodily injury on count two. In all other respects, the judgment is affirmed.

Vickie Welch appeals from an order sustaining a demurrer to her complaint against the State Bar of California without leave to amend.[1] Apparently she had an issue with the State Bar regarding her complaint against an attorney who formerly represented her. The only document in the clerks transcript on appeal is the minute order of the trial courts ruling. It states that the demurrer is sustained on the grounds stated in open court and as fully reflected in the notes of the court reporter hereby incorporated by reference. There is no copy of the complaint, the demurrer, or any response filed by Ms. Welch. Ms. Welch did not request preparation of a reporters transcript on appeal. On appeal, she filed a request to augment the record, which was denied without prejudice. She did not renew her request to augment the record. The order sustaining the demurrer is affirmed.

We affirm the juvenile courts jurisdictional order finding that Blanca G. (mother), failed to protect Nicholas G. when she allowed father into her home, after fathers long history of endangering Nicholas and his siblings and when father physically abused Nicholass brother, S. We reverse the juvenile courts dispositional order removing Nicholas from mothers custody. The record lacks substantial evidence that there would be a substantial danger to Nicholass physical or emotional well-being, andthat there are no reasonable means by which Nicholass physical health could be protected without removing him from mothers custody. (Welfare & Inst. Code, 361, subd. (c).)
The juvenile courts order removing Nicholas from mothers custody is reversed. In all other respects, the juvenile courts order is affirmed.

David and Ilysia Pierce (the Pierces) appeal the judgment of dismissal entered after the trial court sustained the demurrer of defendants Silverston and Associates, Inc., Gary Silverston and Diana Morton, aka, Diana Silverston, to the negligence cause of action in the Pierces second amended construction defect complaint without leave to amend. Court reverse and remand for further proceedings.

Johnny Lerma appeals from judgments entered in two cases after the trial court denied his motions to suppress evidence and appellant entered a change of plea. In case number 2006003675, appellant pled guilty to obliterating the serial number on a firearm (Pen. Code 12090)[1]and carrying a loaded firearm in a vehicle ( 12031, subd. (a)(1)), and admitted that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)). In case number 2006042832, appellant pled guilty to transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)) and possession of a deadly weapon ( 12020, subd. (d)), and admitted that he committed the transportation offense while released on bail ( 12022.1, subd. (b)).
The judgment is affirmed.

On March 9, 2007, the Department of Children and Family Services (DCFS) detained six-year-old Christopher W. and three of his siblings, T. (1992), A. (1993) and V. (1995). The children were detained from the custody of their mother and her companion, Ernest. DCFS filed a dependency petition alleging the children were at risk of harm based on domestic violence between mother and Ernest and because mother allowed Ernest to reside with the children despite the fact he sexually abused their sibling when she was a child. Additionally, Ernest was on parole for felony spousal abuse. The juvenile court ordered the children detained, declared Kenneth W. the alleged father of Christopher and directed DCFS to conduct a search for Kenneth W.
Kenneth W. contends his criminal and drug related history did not constitute neglectful conduct within the meaning of section 300, subdivision (b) and, even if it did, DCFS failed to demonstrate that Christopher currently was at risk of harm in Kenneth W.s care. Kenneth W. further contends several of the juvenile courts dispositional orders are not supported by substantial evidence. The orders are affirmed.

Destin Smith appeals a judgment of conviction entered after he expressly waived his constitutional rights and pleaded nolo contendere to possession of cocaine base for sale, with an admission that he suffered a prior serious felony conviction alleged for recidivist sentencing. (Health & Saf. Code, 11351.5; Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced Smith to a low term of three years, which it then doubled, for a total prison term of six years. The trial court also imposed a $200 restitution a $200 parole revocation restitution fine, a $20 security fee, and a $50 laboratory fee. It awarded Smith 62 days of presentence custody credits. The judgment is affirmed.

A jury convicted defendant Dale Lionell Mark of grand theft (Pen. Code, 487, subd. (a))[1]and second degree burglary ( 459) of DeVons Jewelers (counts one and two), as well as grand theft and second degree burglary of Grebitus & Sons Jewelers (counts three and four). The trial court found true allegations that defendant had served nine prior prison terms. ( 667.5, subd. (b).) The trial court sentenced defendant to prison for a total term of 12 years and eight months computed as follows: the upper term of three years on count one; the middle term of two years on count two, stayed pursuant to section 654; a consecutive one-third the middle term of eight months on count three; the middle term of two years on count four, stayed pursuant to section 654; and one year for each of the nine prison term priors. The judgment is affirmed.

Defendant Stephen John Albrich pleaded guilty to attempted carjacking. (Pen. Code, 215, subd. (a), 664.) The trial court sentenced defendant to 19 years in state prison based upon a finding that his prior Oregon conviction for robbery in the third degree (Or. Rev. Stat., 164.395 (1992)) was a serious felony under Californias three strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant contends his June 1991 Multnomah County, Oregon conviction for third degree robbery does not qualify as a prior conviction of a serious felony. Court agree and shall affirm the current conviction but reverse the judgment, vacate defendants sentence and remand for further proceedings.

A jury convicted defendant Richard Steven Otto of four counts of lewd acts with a child under age 14 (Pen. Code, 288, subd. (a)[1]--counts one through three & five) and two counts of lewd acts with a 14-year-old child ( 288, subd. (c)(1)--counts six & seven). The jury found that counts one, two, three and five were committed against two or more victims. ( 667.61, subd. (e)(5).) Three related counts were dismissed after the jury failed to reach a unanimous verdict (counts four, eight & nine). Defendant was sentenced to state prison for 30 years to life, consisting of consecutive terms of 15 years to life on counts one and five, concurrent terms of 15 years to life on counts two and three, and concurrent terms of two years on counts six and seven. He was ordered to have no visitation with victims K.H. and A.B. ( 1202.05.)
Defendant appeals, contending (1) counts six and seven are not supported by sufficient evidence, (2) Evidence Code section 1108 is unconstitutional, (3) admission of evidence of uncharged sexual offenses was an abuse of discretion, (4) documents viewed in camera by the trial court must be reviewed by this court, and (5) the no-contact order must be stricken as to victim A.B. Court reverse count seven, strike the no-contact order, and affirm the balance of the judgment.

Defendant was charged in an amended information with possessing cocaine base (Health & Saf. Code, 11350, subd. (a)); misdemeanor driving under the influence (Veh. Code, 23152, subd. (a)); and misdemeanor driving with a blood-alcohol level of 0.08 percent or higher (id., 23152, subd. (b)). It was further alleged that defendant had one prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12) and had served four prior prison terms ( 667.5, subd. (b)).
Defendant pleaded no contest to possessing cocaine base and misdemeanor driving under the influence and admitted the prior strike allegation in exchange for dismissal of the remaining counts and prior prison term allegations. The judgment is affirmed.

Mohamad Nabih Alsayad was convicted of nine counts of grand theft (Pen. Code,[1] 487, subd. (a)), ten counts of filing a false instrument ( 115, subd. (a)), six counts of forging a document ( 470, subd. (d)), three counts of forging a name ( 470, subd. (a)), one count of counterfeiting a seal ( 472) and two counts of making a false statement to a notary ( 115.5, subd. (b)). As to the grand theft conviction in count 22, it was found true within the meaning of section 12022.6, subdivision (a)(2), the loss exceeded $150,000. It was found true within the meaning of section 115.5, subdivision (a), as to the filing of false instruments convictions in counts 24, 27 and 31, appellant's actions affected the title to or encumbered real property. Finally, it was found true within the meaning of section 186.11, subdivision (a)(1), appellant committed related felonies that involved the taking of more than $100,000.
Alsayad was sentenced to a term of seven years four months in prison. He appeals, arguing as to counts 2 through 21 he was improperly charged with general Penal Code violations rather than more specific Vehicle Code sections, the evidence was insufficient to support conviction on many of the counts, the trial court erred in denying his section 1538.5 motion, the charges were improperly joined for trial, effective assistance of counsel was denied, the trial court and prosecutor engaged in misconduct, cross-examination of a prosecution witness was improperly limited and the trial court erred in denying a motion for new trial.