CA Unpub Decisions

Appellant Damarcus Thompson was convicted by a jury of three counts arising out of a car crash in which he and codefendant Cheleia Swayne were in the driver’s seat of appellant’s car, traveling at high speed while under the influence of alcohol, when they hit a curb and slammed head-on into a gas station pole.[1] When police arrived, the car was on fire. The front seat passenger was engulfed in flames and died at the scene. The two back seat passengers were rescued but sustained serious injuries. Appellant contends the trial court prejudicially misinstructed the jury on several points and that the evidence was insufficient to support his three convictions. He also argues prosecutorial misconduct and that the trial court abused its discretion in sentencing him. On the basis of a discrete sentencing error raised by respondent and unrelated to appellant’s contentions, we will reverse the sentence and remand for resentencing, as we explain herein; in all other respects we affirm the judgment.

Appellant Cheleia Swayne was convicted by a jury of four counts arising out of a car crash in which she was driving at high speed while under the influence of alcohol, hit a curb, and slammed head-on into a gas station pole.[1] When police arrived, the car was on fire and the front seat passenger was engulfed in flames. The two back seat passengers were rescued but sustained serious injuries. Appellant contends the trial court erred in admitting evidence of her responses to police questioning at the scene before she was advised of her Miranda rights, the court prejudicially misinstructed the jury on aiding and abetting and on the definition of “driving,” and cumulative error. In addition, appellant argues, and respondent concedes, a sentencing error. We will reverse the sentence, remand for resentencing, and affirm the judgment in all other respects.

R.U. (Father) and L.B. (Mother), whose marriage was terminated in May 2001, are the parents of two minor children, both of whom were conceived using egg donors. One of the conditions of the judgment of dissolution to which both parties stipulated was Father could not inform the children of this fact during their minority. Father appeals from an order denying his motion for modification of this and other conditions relating to custody, asserting his due process rights were violated by the court’s denial of his request for an evidentiary hearing. Father maintains the court erred in denying his motion to inform the children of their “biological mothers” and to enjoin Mother from “interfering” with his attempt to obtain an Italian passport. We conclude the trial court did not err, and affirm.

Appellant Damarcus Thompson was convicted by a jury of three counts arising out of a car crash in which he and codefendant Cheleia Swayne were in the driver’s seat of appellant’s car, traveling at high speed while under the influence of alcohol, when they hit a curb and slammed head-on into a gas station pole.[1] When police arrived, the car was on fire. The front seat passenger was engulfed in flames and died at the scene. The two back seat passengers were rescued but sustained serious injuries. Appellant contends the trial court prejudicially misinstructed the jury on several points and that the evidence was insufficient to support his three convictions. He also argues prosecutorial misconduct and that the trial court abused its discretion in sentencing him. On the basis of a discrete sentencing error raised by respondent and unrelated to appellant’s contentions, we will reverse the sentence and remand for resentencing, as we explain herein; in all other respects we affirm the judgment.

Appellant Cheleia Swayne was convicted by a jury of four counts arising out of a car crash in which she was driving at high speed while under the influence of alcohol, hit a curb, and slammed head-on into a gas station pole.[1] When police arrived, the car was on fire and the front seat passenger was engulfed in flames. The two back seat passengers were rescued but sustained serious injuries. Appellant contends the trial court erred in admitting evidence of her responses to police questioning at the scene before she was advised of her Miranda rights, the court prejudicially misinstructed the jury on aiding and abetting and on the definition of “driving,” and cumulative error. In addition, appellant argues, and respondent concedes, a sentencing error. We will reverse the sentence, remand for resentencing, and affirm the judgment in all other respects.

This CEQA[1] action arises from the approval of the Regional Desalination Project by appellant Marina Coast Water District (Marina Coast). The Regional Desalination Project was to be owned and operated by Marina Coast, the Monterey County Water Resources Agency (Water Resources Agency), and the California American Water Company (Cal-Am), a corporation regulated by the California Public Utilities Commission (PUC). Cal-Am’s participation was to include the construction of a distribution system to deliver the desalinated water to customers on the Monterey Peninsula.

Defendant Lorenzo Arteaga appeals from an order finding him incompetent to stand trial and committing him to the Department of Mental Health pursuant to Penal Code section 1370, subdivision (a)(2).[1] On appeal, defendant contends the trial court erred by refusing to hold a hearing on his Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We will reverse the commitment order and remand for a Marsden hearing.

In this appeal Renee Hall (Renee) challenges a family court order denying her motion to declare a prior marital settlement agreement (MSA) void. Renee contends that the temporary judge who approved the parties' MSA acted without jurisdiction because she signed the stipulated order of appointment herself, rather than obtaining the signature of the presiding judge of the superior court or his designee. We find no basis for reversal in the circumstances presented and will therefore affirm the order.

Minor Matthew R. appeals a judgment declaring him a ward of the court (Welf. & Inst. Code, § 602)[1] and placing him on formal probation. According to minor, the court abused its discretion when it terminated his deferred entry of judgment proceedings because he failed drug tests. (See § 793, subd. (a).) We affirm.

In a quiet title action, the superior court sustained a demurrer to the first amended complaint without leave to amend and entered a dismissal of the cause of action. We affirm.

After sustaining a Welfare and Institutions Code[1] section 602 petition, to declare minor Christopher A. a ward of the court, the juvenile court ordered Christopher to participate in a 52-week batterer’s program pursuant to Penal Code section 1203.097, subdivision (a)(6). Christopher contends the court misinterpreted Penal Code section 1203.097 to apply to juvenile court delinquency adjudications. We agree and remand to the juvenile court so it may decide whether to impose the disputed probation condition under section 730, subdivision (b).

A jury convicted defendant Victor Salazar of four counts of lewd acts on a child 15 years old and at least 10 years younger than the defendant (Pen. Code § 288, subd. (c)(1)),[1] and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The court sentenced defendant to a state prison term of four years, comprised of the following: The midterm of two years on the first lewd conduct count, one-third the midterm of eight months consecutively on each of the other three lewd conduct counts. On the misdemeanor counts, the court imposed a six month jail term on the first sexual battery count to run consecutively to the first lewd conduct count, and a six month jail term on the second sexual battery count to run concurrently to the first lewd conduct count. The misdemeanor sexual battery counts were ordered to be served in any penal institution.
After the prosecution rested, defendant filed a motion under section 1118.1 for acquittal (1118.1 motion) of the four counts of lewd acts, claiming the People had not proved the defendant was at least 10 years older than the victims. Indeed, the prosecutor never submitted evidence of the defendant’s age. The court denied the motion on the ground the jury could judge from defendant’s appearance that defendant was at least 10 years older than the victims. Defendant then testified during the defense, and the prosecutor elicited defendant’s age on cross-examination. Defendant was at least 10 years older than the victims, but just barely.
Defendant claims on appeal the 1118.1 motion should have been granted because the defendant’s appearance was not substantial evidence he was at least 10 years older than the victims. We agree. Evidence of defendant’s age adduced during the defense case cannot cure the error, and thus reversal of the lewd-acts counts is required. Defendant also contends there is no substantial evidence to support the sexual battery counts. There, we disagree and affirm the judgment as to the sexual battery counts. We will remand for resentencing, and thus defendant’s argument that he should have been granted probation is moot.

Plaintiff and respondent Brown Bark III, L.P. sued defendants and appellants Jaimie Haver and Westover Capital Corporation to recover funds Westover Financial, Inc. failed to repay on a revolving line of credit.[1] Although Westover Capital was not a party to the contracts that created the line of credit, Brown Bark sued Westover Capital for breach of those contracts on a successor liability theory. Brown Bark also sued Haver and Westover Capital for conversion and fraud, alleging they converted the Westover Financial assets pledged as security for the line of credit and made misrepresentations to prevent and delay Brown Bark’s efforts to recover the outstanding balance from Westover Financial. Following a bifurcated jury and court trial, Haver and Westover Capital obtained a favorable judgment on all of Brown Bark’s causes of action. They subsequently sought their attorney fees under the fee provisions in the line of credit contracts, but the trial court denied their fee motion. Haver and Westover Capital now appeal.

A jury found defendant Robert Avery McClain guilty of aggravated mayhem (Pen. Code, § 205; all further statutory references are to this code; count 1); torture (§ 206; count 2), forcible oral copulation (§ 288a; count 3); attempted sexual penetration by a foreign object by force (§§ 289, subd. (a)(1), 664; count 4); spousal rape by force (§ 262, subd. (a)(1); count 5); sodomy by force (§ 286, subd. (c)(2); count 6); false imprisonment as a lesser included offense of kidnapping to commit a sex offense (§ 236; count 7); and inflicting injury on a spouse resulting in traumatic injury (§ 273.5, subd. (a); count 8). It also found true allegations he personally used a knife and firearm in committing count 1, a knife in committing count 2, a firearm in committing counts 3, 4, 5, and 6, and that in committing count 8, he personally inflicted great bodily injury.
The court sentenced defendant to two consecutive indeterminate life terms, two consecutive 15 years to life terms, plus an additional 19 years and 8 months. He contends his sentences for aggravated mayhem and false imprisonment should have been stayed under section 654. We conclude no error occurred and affirm the judgment.