CA Unpub Decisions

Aaron Solganick sued SG Capital Holdings, LLC (SG) for breach of contract, alleging that SG refused to pay him for services rendered. After a one-day bench trial, the court found in favor of Solganick. SG appeals, arguing that Solganick cannot recover because he performed services that required a brokers license, which he concededly did not possess. Court conclude that the record does not support SGs argument, and Court therefore affirm.

Eric Neal appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon, count 2 (Pen. Code, 12021, subd. (a)(1)), and possession of ammunition by a felon, count 3 (Pen. Code, 12316, subd. (b)(1)).[1] He admitted that in case number NA030230 he was convicted of violating Penal Code section 487h, subdivision (a) on February 27, 1997; in case number NA059335, of violating Penal Code section 472, a felony, on January 14, 2004; and of violating Penal Code section 476, a felony, in case number TA078752 on July 15, 2005. He also admitted that he suffered a prior conviction and served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of two years and four months, consisting of the low term of one year and four months for count 2 and one year for his previous prison term. Sentence on count 2 was ordered stayed pursuant to Penal Code section 654. The judgment is affirmed.

A group of young people gathered in the woods behind an apartment complex to drink. A 15-year-old girl passed out, was moved to another location in the woods, and was sexually assaulted.
A jury convicted defendant of kidnapping with the intent to commit rape or sexual penetration (Pen. Code, 209, subd. (b)(1); unspecified section references that follow are to the Penal Code), rape of an unconscious person ( 261, subd. (a)(4)), and digital penetration of an unconscious person ( 289, subd. (d)). Sentenced to a life term with the possibility of parole plus a determinate term of 20 years, defendant appeals, asserting that (1) accomplice testimony was not corroborated, (2) insufficient evidence supports his convictions for kidnapping and rape, (3) the trial court and prosecutor violated defendants constitutional right to confront his accuser, (4) the court erroneously ruled that defendants silence constituted an adoptive admission, (5) the court erred in instructing the jury, (6) cumulative error compels reversal, (7) the court violated section 654 in imposing sentence, (8) unauthorized fines must be corrected, and (9) the imposition of the upper term sentence violated his constitutional right to a jury trial.
Court amend the abstract of judgment to reflect restitution and parole revocation fines in the appropriate amount, and otherwise affirm the judgment.

Defendant, Alfonso Gomes Reynaldo, waived his right to a jury trial and was convicted by the trial court of second degree murder (Pen. Code, 187, subd. (a)), and assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). The trial court then sentenced defendant to 15 years to life for the second degree murder conviction, and the upper term of four years for the assault conviction. On appeal, defendant contends the imposition of the upper term on the assault conviction violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Joseph Y. (appellant), the father of Dylan P. (the minor), appeals orders of the juvenile court. (Welf. & Inst. Code, 360, 395; further section references are to the Welfare and Institutions Code.) He contends the court erred in denying him presumed father status and reunification services. Court disagree and affirm the orders.

The minor, Marc L., appeals from the postjudgment order to pay $110,006.40 in victim restitution. (Welf. & Inst. Code, 730.6.) He challenges the amount of the order, claiming it should be offset by (1) the amount of the debt written off by the provider and (2) the amount to be paid to the victim by the insurance carrier that insured the minor. The minors mother appeals from the restitution order to the extent it makes her jointly and severally liable for $25,000 and contends her liability should also be off-set by the amount paid by her insurance carrier.
We agree with the minor that his restitution obligation must be offset by the amount of the debt written off by the provider. Court therefore reverse the trial courts order for victim restitution and direct that it be reduced to $36,856.33.

R.W. and T.H., the mother and father of B.H. (the minor), each appeal from the order of the juvenile court terminating their parental rights. (Welf. & Inst. Code, 366.26, 395.)[1] T.H. contends the juvenile court committed reversible error in failing to apply a statutory exception to adoption, and both R.W. and T.H. claim Department of Health and Human Services (DHHS) and the juvenile court violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Agreeing only with the claim of ICWA error, Court reverse and remand for a reevaluation by the juvenile court pursuant to that statute.

Police conducted a traffic stop after noticing a car, in which defendant Allen Martin was a passenger, had numerous cracks in the front windshield which impaired the drivers vision. When the officer approached the car, the driver identified herself and said she intended to have the windshield repaired the next day. The officer noticed a strong odor of burnt marijuana coming from inside the car. The driver indicated she had a Proposition 215 authorization to use medical marijuana, but did not have documentation in her possession to confirm that claim. The officer ran a check on the license of the driver as well as defendants license, and then instructed defendant to step out of the vehicle. When asked if he had any weapons or drugs, defendant replied, No, and agreed to let the officer search him. When defendant placed his hands on the car, the officer noticed a glass pipe used to smoke methamphetamine sticking out of defendants pocket. Defendant also appeared to the officer to be under the influence of drugs. The officer placed defendant under arrest and searched him, finding a black pouch containing methamphetamine inside his back brace. Several weeks later, after being released on bail, defendant was arrested when he was observed driving erratically and then attempted to evade arrest. The judgment is affirmed.

As part of a bargain leading to dismissal of other charges, defendant Robert Paul Poliquin pleaded no contest to possession of methamphetamine on or about August 19, 2006, and admitted serving a prior prison term. (Health & Saf. Code, 11377, subd. (a); Pen. Code, 667.5, subd. (b).) On March 7, 2007, he was put on Proposition 36 probation. In April and May 2007, Defendant admitted that he violated probation as alleged in two separate petitions. On June 28, 2007, in a new case, defendant pleaded no contest to a charge of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a)) on June 6, 2007, in exchange for dismissal of other counts.
The judgment is affirmed.

Defendant Abe Kessee was arrested for being an illegal passenger on a Union Pacific train and throwing a lighted flare from the train, causing a grass fire. He waived his right to a preliminary hearing and pleaded no contest to one count of maliciously setting fire to, burning or causing to be burned any property (Pen. Code, 451, subd. (d); further undesignated references are to this code) in exchange for dismissal of all remaining charges subject to a Harvey[1]waiver and a promise of no immediate state prison. The court placed defendant on three years probation and ordered that he serve 90 days in county jail. Defendant was awarded 61 days of presentence custody credit and ordered to pay various fees and fines, including a $200 restitution fine ( 1202.4, subd. (b)), a $200 probation revocation fine ( 1202.44), stayed pending successful completion of probation, a $20 court security fee ( 1465.8), and a monthly fee of $20 for probation services. Defendant was also ordered to register as an arsonist pursuant to section 457.1. The judgment is affirmed.

Police responded to a report of a physical altercation at an apartment complex. The victim, then six-months pregnant, told police she heard a commotion and went outside to find defendant Elonzia Perkins, Jr., and his girlfriend encouraging defendants minor daughter to fight the victims minor daughter. The victim broke up the fight and told her daughter to go inside the house. Defendant continued to yell at the victim and threaten her and, when the victim turned to walk back inside her apartment, defendant pushed her from behind, causing her to stumble and nearly fall to the ground. The victim was able to catch herself, but later suffered some physical complications and was taken to the hospital in an ambulance. Defendant was subsequently charged in case No. CM027299 with making criminal threats, a felony (Pen. Code, 422; further undesignated references are to this code), and misdemeanor battery ( 242). A few weeks after the charges were filed in case No. CM027299, defendant was charged in case No. CM027142 with violating section 136.1, subdivision (b)(2) after he threatened the victim in an attempt to dissuade her from prosecuting case No. CM027299.
Having undertaken an examination of the entire record, Court find no arguable error in favor of defendant. The judgment is affirmed.

A jury convicted Michael Nathaniel Allen of committing a lewd act upon a child under the age of 14 (Penal Code 288(a); counts 1 and 5).[1] As to both counts the jury found true an enhancement that he committed a sex offense against more than one victim ( 667.61, subds. (b),(c), and (e).) As to count 1, the jury also found true an enhancement that Allen had substantial sexual conduct with the victim and he was a stranger to the victim at the time of the crime. ( 1203.066, subds. (a)(8) and (a)(3).) The jury also found him guilty of battery, a lesser included offense of committing a lewd act upon a child, as alleged in counts 2 and 7. The jury found him not guilty of other violations of section 288a, as alleged in counts 4, 6, 9 and 10, and a mistrial was declared on count 8 because the jury was unable to reach a verdict regarding the charged lesser included offense of battery. In bifurcated proceedings, the trial court found true that he had one prior strike conviction. ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) The court sentenced him to 30 years to life in prison as follows: 15 years each on counts 1 and 5, doubled because of the"Three Strikes" law, the terms to run concurrently. Allen contends the trial court erred in permitting testimony regarding his uncharged prior acts; and, the battery convictions in counts 2 and 7 were not supported by sufficient evidence. Court affirm.

Defendants Chesley Manock and Jean Manock (the Manocks) appeal a judgment entered against them after the trial court granted the motion for summary judgment filed by plaintiffs Rory Trup and Regina Trup (the Trups) in their action against the Manocks for specific performance of an option to purchase real property from the Manocks. On appeal, the Manocks contend the trial court erred by concluding there were no triable issues of material fact regarding: (1) the amount of the purchase price; and (2) whether the purchase price was just and reasonable at the time the option agreement was executed.
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. The trial court shall award the costs on appeal on completion of the proceedings in this case.

Otay River Constructors (Otay) brought a declaratory relief action against South Bay Expressway and California Transportation Ventures, Inc. (together Expressway), seeking a declaration as to the meaning of a contractual provision in the parties' agreement. The court sustained Expressway's demurrer without leave to amend based on the court's determination that it was not the appropriate forum to provide an interpretation of the parties' agreement. (See Code Civ. Proc., 1061.) The trial court found Expressway was the prevailing party and granted Expressway attorney fees of $37,987.75 under Civil Code section 1717. On appeal, Otay challenges only the attorney fees award. Otay contends the court abused its discretion in finding that Expressway was the prevailing party. Court reject this contention and affirm.