CA Unpub Decisions

After defendant E*Trade Securities, Inc. (E*Trade) fired employee plaintiff Ivan H. Dupree (Dupree), he filed suit alleging various torts. Both Duprees employment agreement and brokerage account agreement contained an arbitration clause requiring binding arbitration under the rules of the National Association of Securities Dealers, Inc., Code of Arbitration Procedure (NASD Code). E*Trade brought a petition to compel arbitration.
In the interim, the California Supreme Court found the federal Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.; hereafter SEA) preempts the California Standards in arbitrations involving self regulatory organizations (SROs). (Jevne v. Superior Court (2005) 35 Cal.4th 935 (Jevne).) Accordingly, we reverse the trial courts order with directions for the court to enter a new order granting E*Trades petition to compel arbitration.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We shall affirm the judgment. On October 8, 2005, defendant Jay Hopson saw his former girlfriend with another man. Defendant confronted the man with a metal pipe, broke his car windows, and struck him several times with the pipe. The victim fled in his truck but lost control and ended up in a ditch. He began to run but Hopson caught him, hit him again with the pipe, and choked him.
On October 9, 2005, defendant was seen driving through a parking lot. He was arrested in connection with the event that had occurred the previous day. A search of his car revealed a package containing 3.1 grams of methamphetamine.
The judgment is affirmed.

The three Spanish speaking victims were in bed in their small one bedroom apartment when defendant Alfredo Vargas broke in, assaulted them with a handgun, robbed them, and raped one of the victims after binding her husband and forcing him into the bathtub with his sister. A jury found defendant guilty of first degree residential burglary (Pen. Code, 459), first degree home invasion robbery ( 211), forcible rape ( 261, subd. (a)(2)), assault with a firearm ( 245, subd. (a)(2)), false imprisonment by violence ( 236), making criminal threats ( 422), and various enhancements and special circumstances.
Defendant asserts the in field identification procedures were unduly suggestive, the rendering of a verdict in two parts was impermissible, the trial judge coerced the jury to reach a verdict, there was insufficient evidence to support the conviction for assault with a firearm, and the court committed a variety of sentencing errors. The abstract of judgment must be corrected to reflect an indeterminate term of 25 years to life, but in all other respects, the judgment is affirmed.

In February 2006 defendant Kevin Daniels reported a home invasion robbery of his residence. He told officers that two men entered the home, demanded money, and beat him with a flashlight. While defendant was at the hospital, he gave officers consent to enter his home and process the crime scene. They found suspected methamphetamine throughout the house. A total of 49.9 grams was recovered. After defendant was released from the hospital and returned home, he consented to a search of the home that yielded two shotguns, a box of ammunition, and $6,640 in cash.
In April 2006, in case No. 06NCR03567, an information was filed alleging possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a)), and prohibited possession of ammunition (Pen. Code, 12316, subd. (b)(1)). The judgment is affirmed.

Evidently at the behest of defendant Rick Hank Likens, minor C.V. surreptitiously obtained the keys to his stepmothers car and drove it away with defendant in the passenger seat. C.V. wrecked the car, causing damage to the front bumper, hood, and tire. The stepmother learned of the damage and called the police. In June 2006 an information was filed charging defendant with unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) During the proceedings, he was released on his own recognizance and ordered to appear in court on August 21, 2006. Defendant failed to appear and a bench warrant was issued for his arrest. The information was amended to allege a count of willful failure to appear on a felony charge. (Pen. Code, 1320, subd. (b).) Defendant pled guilty to failing to appear, and the unlawful driving or taking charge was dismissed with a Harvey waiver.
The judgment is affirmed.

Before trial, Richard L. Hamlin, Jr. pled guilty to possessing methamphetamine (meth). (Health & Saf. Code, 11377, subd. (a); count 2.) A jury subsequently convicted Hamlin of battery against a cohabitant (Pen. Code, 243, subd. (e)(1)), a lesser included offense of the charged count 1 crime of inflicting corporal injury against a cohabitant. (Pen. Code, 273.5, subd. (a).) The trial court placed Hamlin on three-years formal probation and stayed imposition of a concurrent 180-day term in local custody for both convictions pending successful completion of probation. The court also stayed all terms and conditions of probation related to the domestic violence conviction, including one to complete a 52-week domestic violence rehabilitation program, pending this appeal. On appeal, Hamlin essentially contends that the trial court prejudicially erred in admitting his statements obtained in violation of Mirandav. Arizona (l966) 384 U.S. 436 (Miranda) because he was subjected to custodial interrogation without first being advised of his rights, and in admitting evidence of a prior incident of domestic violence under Evidence Code[1]section 1109, which he argues is not only unconstitutional, but for which the court improperly weighed the prejudice. Alternatively, Hamlin argues he was denied the effective assistance of counsel in this regard if we determine that the sections 352 and 1109 issues were waived by the failure of his trial counsel to object below on such grounds. Court affirm.

Integrated Landscape Group, Inc. (Integrated) sued homeowner Raad Attisha after Attisha failed to pay for landscaping to his new home. After a one-day bench trial, the court found Integrated proved Attisha was liable for Integrated's landscaping services. The court entered judgment in Integrated's favor for $46,298.37, which included the landscaping costs ($40,800) plus prejudgment interest, with a credit for a $5,000 settlement offset. On appeal, Attisha contends the judgment was unsupported because he had no contractual relationship with Integrated, and there was no equitable basis for the recovery. Court reject these contentions, and affirm.

After the trial court denied a motion to suppress evidence (Pen. Code, 1538.5), Ronald Stacy entered a guilty plea to possessing methamphetamine for sale (Health & Saf. Code, 11378) and admitted one of the prior prison term allegations (Pen. Code, 667.5, subd. (b)). The court sentenced Stacy to prison for three years, with execution of sentence suspended until the outcome of this appeal. Stacy appeals, contending the court erred by denying his motion to suppress evidence. He contends his consent to the search of his home was the result of police coercion and therefore the search was a violation of his rights under the Fourth Amendment. Court affirm the judgment.

Appellant Jeanette Louise Lynch pled guilty in San Diego County Superior Court case No. SCE238783 to possession of cocaine, a controlled substance, in violation of Health and Safety Code Section 11350, subdivision (a), and a misdemeanor, agreeing to engage in an act of prostitution, in violation of Penal Code section 647, subdivision (b). On July 9, 2004, the trial court suspended imposition of the sentence and granted appellant three years of formal probation. On October 28, 2004, the trial court stayed execution of probation until completion of the drug court program. On April 7, 2005, appellant admitted violating probation when she did not report for drug treatment. Probation was restored on April 14, 2005.Appellant and respondent request we remand this case for resentencing. Court agree the case should be remanded and appellant resentenced.

David Lewis was convicted of selling cocaine base. He admitted a strike prior within the meaning of Penal Code,[1]section 667, subdivisions (b) through (i), and two prior prison terms within the meaning of section 667.5, subdivision (b). Lewis was sentenced to a prison term of seven years. He appeals, arguing the trial court misinstructed the jury concerning aiding and abetting a sale of cocaine base, erred in failing to instruct concerning lesser included offenses, in denying him sufficient credit for time served and in failing to strike the finding on one of the prison prior allegations.
The abstract of judgment is ordered modified to delete any reference to the second section 667.5, subdivision (b), finding. In all other respects the judgment is affirmed.

In this delinquency proceeding, appellant Alejandro A. alleges there was evidence he was an Indian child and inquiry should have been made as to his status before the disposition was entered. Court reject the contention and affirm the judgment.

Sidney Lee White, Jr., pled guilty to petty theft with a prior (Pen. Code,[1] 666/484) and admitted he had served five prior prison terms ( 667.5, subd. (b)) and had one prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)). At that time, the trial court indicated White's sentence would not exceed five years. Subsequently, the court denied White's motion to dismiss his prior strike conviction, but dismissed the five prior prison term enhancements under section 1385. The court sentenced White to four years in prison imposing the middle term of two years, which was doubled under the three strikes law.

Rae H. appeals a juvenile court judgment terminating her parental rights over her four children and choosing adoption as the preferred permanent plans. (Welf. & Inst. Code, 366.26.) Rae challenges the evidentiary grounds for the court's findings that the children are adoptable and the "sibling bond" exception to adoption ( 366.26, subd. (c)(1)(B)(v)) is inapplicable. Court affirm the judgment.

Defendant was charged in an amended information with one count of possession of cocaine base for sale (Health & Saf. Code, 11351.5; count 1); two counts of felony endangerment of a child (Pen. Code, 273a, subd. (a); counts 2 (K.G.) & 3 (M.L.)); one count of failing to register as a sex offender (Pen. Code, 290; count 4); and one count of possession of marijuana for sale (Health & Saf. Code, 11359; count 5). It was further alleged that defendant had one prior strike conviction (Pen. Code, 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and three prison priors (Pen. Code, 667.5, subd. (b)). The judgment is affirmed.