CA Unpub Decisions

Roman S., a minor, appeals from a probation condition restricting him from traveling outside a 10 mile radius (except in specific circumstances) which was imposed following a finding that he resisted arrest. He contends the trial court abused its discretion in imposing the probation condition or alternatively, that counsel was ineffective for failing to object to the imposition of the condition. Court affirm.

In this case we once again consider the plaintiff law firm's claim that it is entitled to receive a bonus under the terms of a fee agreement with a former client. Previously, Court found the law firm could offer parol evidence in support of its interpretation of two provisions of the fee agreement and therefore the trial court erred in granting the client's motion for summary judgment.

On remand, the trial court found that, even in light of the proffered parol evidence and the provisions we previously addressed, the parties had not considered whether a bonus would be due under the circumstances which in fact occurred. The parties do not dispute this finding, which is supported by substantial evidence in the record.
However, in addition to the provisions Court previously addressed, the trial court considered another provision of the parties' agreement and found that it did provide the law firm with a right to a bonus. The trial court's interpretation is not supported by a fair reading of the provision even in light of the parol evidence offered by the parties. Accordingly, Court must reverse the judgment entered in favor of the law firm.

A jury convicted Mitchell Thomas Florence of threatening a judge (Penal Code[1] 76, subd. (a)), making a criminal threat ( 422), and attempted escape ( 4532, subd. (b)(1), 664). In a separate proceeding, Florence admitted three serious felony priors ( 557, subd. (a)(1)), and a strike prior ( 667, subd. (b)-(i)), 1170.12, 668). The court sentenced Florence to a total of seven years eight months, which was imposed consecutively to a term he was serving in another case. The court imposed a term of one year four months for making a criminal threat (one third the middle term of eight months doubled by the strike prior), one year four months for attempted escape (one third the middle term of eight months, doubled by the strike prior), and five years for the serious felony prior. The court stayed sentencing on threatening a judge pursuant to section 654 and struck two of the three serious felony priors. Florence contends there was insufficient evidence to support the conviction for making a criminal threat. Additionally, Florence contends the trial court prejudicially erred by failing to instruct the jury on the lesser included offenses of attempted threatening a judge and attempted criminal threat. Florence contends the trial court should strike the five year sentence enhancement if the court reverses the criminal threat conviction. Court affirm the judgment.

Plaintiffs Marco Paredes and Cynthia Lizarraga appeal from a judgment in favor of defendant State of California, Department of Transportation (State or Caltrans) and postjudgment order denying them a new trial and judgment notwithstanding the verdict (JNOV) on plaintiffs' complaint for wrongful death and personal injury alleging a dangerous condition of public property (Gov. Code, 835). Paredes was injured and his two daughters killed when Paredes lost control of his vehicle in heavy rain, after which the vehicle slid down an embankment and struck a eucalyptus tree. The jury returned a verdict finding the property was in dangerous condition at the time of the accident and was a substantial cause of Paredes's injury and the death of his children, but State did not have actual or constructive notice of the condition in sufficient time before the incident to protect against it. The jury also found the dangerous condition was not caused by a negligent or wrongful act or omission of a State employee acting within the scope of employment.
Plaintiffs' sole contention on appeal is that the verdict is contrary to undisputed evidence that Caltrans employees affirmatively created the dangerous condition by creating the slope and planting eucalyptus trees on the slope, demonstrating negligence per se, as well as notice. They assert the jury's findings as to creation of the dangerous condition as well as actual and constructive notice lack substantial evidence, requiring reversal and a new trial. Court affirm the judgment and postjudgment order.

Philip Millenbah appeals an order awarding sanctions against him and in favor of George H. Kaelin, III and the law firm Endeman, Lincoln, Turek and Heater, LLP (together Kaelin), and Darrell Daugherty and Mary Vivanco (together Daugherty), under Code of Civil Procedure section 128.7 for filing a motion to set aside the dismissal of the action entered after the parties settled the case and Millenbah accepted proceeds of the settlement. Millenbah raises several procedural issues, none of which has merit. Court affirm the order.

Aaron D. Bonin was found guilty by a jury of battery committed by gassing on a peace officer (Pen. Code, 243.9, subd. (a)), assault by means likely to produce great bodily injury ( 245, subd. (a)(1)) and battery on a peace officer with injury ( 243, subd. (c)(1). He admitted he had a prior conviction that qualified as a prison prior ( 667.5, subd. (b)) and a strike conviction ( 667, subds. (b)-(i)). He was sentenced to a total term of seven years. Bonin contends the waiver of his right to counsel was inadequate because the court failed to review with him the maximum possible sentence or the nature of the charges. He also contends the court should have denied his motion for self representation. Court find no error.

In wardship proceedings under Welfare and Institutions Code section 602, the trial court found that Milton R. committed (1) assault by means of force likely to produce great bodily injury, with findings that he personally inflicted great bodily injury and personally used a knife (count 1); (2) assault with a deadly weapon (count 2); (3) battery resulting in serious bodily injury (count 3); and (4) misdemeanor battery (count 5). Milton argues the evidence is insufficient to support a finding that he was the person who stabbed the victim with a knife. Accordingly, he contends the order should be reversed as to the assault with a deadly weapon finding (count 2), and as to the personal knife use and personal infliction of great bodily injury findings (related to count 1). Court reject his argument and affirm the order.

In 2006 Joseph Ruiz entered a negotiated guilty plea to one count of possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)) in case No. SCN209607. The trial court granted probation for three years. In 2007 Ruiz entered a negotiated guilty plea to one count of commercial burglary (Pen. Code, 459) in case No. SCN224910. Ruiz also admitted he had one prior serious/violent felony conviction or strike (Pen. Code, 667, subds. (b)-(i)). The court sentenced Ruiz to the stipulated prison term of two years eight months for the burglary and found he was in violation of his probation in case No. SCN209607. The court sentenced him to 16 months in prison for the probation violation with 213 days of credit. The judgment is affirmed.

Jack Daniel Shrin entered a negotiated guilty plea to one count of driving while having a blood alcohol level above .08 percent (Veh. Code, 23152, subd. (b)) and admitted that he had a prior serious/violent felony or strike conviction (Pen. Code, 667, subds. (b)-(i)). The trial court sentenced Shrin to a prison term of two years eight months, as stipulated in the plea bargain. Shrin did not obtain a certificate of probable cause.
On January 17, 2007, a California Highway Patrol officer was dispatched to a location where a pickup truck had been driven off the road and was stuck on rocks. The officer contacted Shrin, who was the registered owner of the vehicle. Shrin told the officer that he had been driving the vehicle when it went off the road. The officer administered field sobriety tests, which indicated Shrin was under the influence of alcohol. The officer arrested Shrin. A subsequent blood test showed that Shrin's blood alcohol level was .24 percent. The judgment is affirmed.

The juvenile court adjudged D.W. a ward of the court under Welfare and Institutions Code section 602 after finding she unlawfully took money and personal property valued at more than $400 from Francisca Melendez. She challenges the sufficiency of the evidence to support the court's true finding that the property's value exceeded $400, constituting grand theft rather than petty theft. Court affirm the judgment.

Beatrice R. (Beatrice) appeals a juvenile court judgment terminating her parental rights over Esperanza R. and choosing adoption as the preferred permanent plan. Beatrice contends insufficient evidence supports the court's finding the beneficial parent-child relationship exception to adoption is inapplicable. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i).) Court affirm the judgment.

The San Diego County Health and Human Services Agency (Agency) appeals a juvenile court order, made at a six-month review hearing, continuing previously ordered reunification services for E.G. and L.G., the parents of dependent minors Elizabeth G. and K.G. (together the minors). Agency contends the court erred by continuing reunification services for L.G. despite finding he had failed to participate in any aspect of his reunification plan. Agency further contends the court erred by continuing E.G.'s services because: (1) the court's decision was based on improperly admitted evidence; and (2) the evidence at the six-month review hearing did not support a finding E.G. made substantive progress with the requirements of her case plan. Because the issues presented are moot, Court dismiss the appeal.

Craig Anthony Cameron entered a negotiated guilty plea to one count of residential burglary (Pen. Code,[1] 459/460), one count of second degree burglary ( 459) and one count of grand theft. Cameron also admitted he had a prior serious felony conviction ( 667, subd. (a)), a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)), and four prior prison term convictions ( 667.5, subd. (b)). The plea agreement provided for a sentencing lid of 13 years, with Cameron retaining the right to argue for a lower term at the sentencing hearing. The court sentenced Cameron to an aggregate sentence of 10 years four months in prison. The judgment is affirmed.

After the denial of her motion to suppress, defendant Tamara Sue Young entered a plea of no contest to possession of heroin in violation of Health and Safety Code section 11350. She further admitted the special allegations that she had committed the offense while on bail (Pen. Code, 12022.1) and that she had been convicted previously of two or more felonies within the meaning of Penal Code section 1203, subdivision (e)(4). The court ordered that Young be placed on probation in accordance with Proposition 36.
Young was arrested after a patrolling law enforcement officer contacted Young, who was sitting in a parked car in a known drug trafficking area. During the encounter, Young provided her drivers license to the officer, who did a warrant check. Dispatch informed the officer that Young was subject to a probation search condition for stolen property. Young and the vehicle were searched and the officer found a small clear plastic baggie containing what was later determined to be heroin. The judgment is affirmed.