CA Unpub Decisions

Appellants MarketShare Partners, LLC (MarketShare) and Insperity PEO Services, L.P. appeal from an order denying their motion to compel arbitration. They argue that they presented sufficient evidence of an arbitration agreement between them and respondent Maryjo K. Tisor. We disagree and affirm.

Minor Adrianna M. was placed on probation after a misdemeanor hit-and-run incident, subject to certain conditions of probation. (Veh. Code, § 20002, subds. (a), (c).) Six months later, the juvenile court added certain gang conditions of probation. On appeal, Adrianna challenges the new conditions, contending inter alia that the juvenile court imposed them without complying with statutory and due process notice and hearing requirements. (Welf. & Inst. Code,[1] § 778.) We agree and reverse the order modifying the conditions of probation.

This appeal has been taken by W. and Crystal, the parents of the minor Ashley, from a judgment in this dependency proceeding pursuant to Welfare and Institutions Code section 366.26 that terminated their parental rights and ordered adoption as the permanent plan.[1] They argue that the juvenile court erred by denying their petitions under section 388 to modify a prior order terminating their reunification services, and by terminating their parental rights and selecting adoption as the permanent plan for Ashley. They also claim that the Department failed to complete a proper inquiry or give proper notice in the case as required by the Indian Child Welfare Act (ICWA). We conclude that the court did not abuse its discretion by terminating parental rights and ordering adoption as a permanent plan for the minor. We must reverse the judgment and remand the case to the juvenile court for lack of compliance with the inquiry and notice requirements of the ICWA, but we order reinstatement of the judgment if Ashley is not, on remand, determined to be an Indian child within the meaning of the ICWA.

After a jury trial defendant was convicted of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)),[1] first degree burglary (§ 459), and infliction of corporal injury on a spouse (§ 273.5, subd. (a)), with enhancements for infliction of great bodily injury (§ 12022.7, subd. (e)), personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and discharge of a firearm causing great bodily injury (§§ 12022.7, subd. (e), 12022.53, subd. (d)). In this appeal he complains of juror misconduct, an error in the calculation of his presentence credits, and lack of evidence of his ability to pay a probation investigation fee. We find that juror misconduct occurred, but was not prejudicial to defendant. Defendant forfeited his challenge to the probation investigation fee by failing to object at trial. We must remand the case for a recalculation of presentence credits to account for defendant’s incarceration in Mexico awaiting extradition. We affirm the judgment in all other respects.

Defendant was found guilty of assault with a deadly weapon after she stabbed her sister with a knife. Defendant, who claimed she acted in self-defense, contends the trial court abused its discretion and denied her due process by excluding evidence of five incidents showing her sister’s propensity for violence. Finding no prejudicial error, we affirm.

Defendant Charles M. Carsten climbed through the back window of his neighbor’s mobile home and took a box of collectable comic books worth between $1,500 and $2,500. A jury subsequently convicted him of first degree burglary and he was given three years’ probation. On appeal, he complains of prosecutorial misconduct during argument, the erroneous admission of juvenile priors, and cumulative error. Although the priors were erroneously admitted, we conclude their admission does not require reversal. Finding his other contentions lacking in merit, we affirm.

Kao Chiam Saephan appeals from convictions of inflicting corporal injury on a child, making criminal threats, dissuading a witness, false imprisonment and misdemeanor battery. He contends his convictions must be reversed because the trial court improperly admitted hearsay evidence and evidence of prior domestic violence, and failed to instruct the jury on lesser included offenses. Alternatively, he argues certain of his sentences should be stayed under Penal Code section 654. We conclude the sentence for the conviction of false imprisonment must be stayed and otherwise affirm the judgment.

When deputy sheriffs conducted a probation search of a bedroom in the residence occupied by defendants Gaila Janette Lovelady and Allen Lee Preslar, they found plastic baggies suggestive of the drug trade. In Preslar’s wallet was the combination to a safe located in the hallway outside the bedroom, in which was found a significant quantity of methamphetamine, digital scales, and ammunition. Based primarily on this evidence, Lovelady pleaded guilty to simple possession of methamphetamine and was convicted after trial of possession for sale and other crimes, as was Preslar. Finding no merit in defendants’ challenges to their convictions, we affirm.

In this sixth appeal relating to personal injuries Joseph Royse sustained in an accident on property known as the Lost Coast Ranch, Royse appeals from a judgment on a jury verdict entered in favor of Pacific Gas and Electric Company (PG&E), JLG Industries, Inc. (JLG), and Darr-B, Inc., doing business as Don’s Rent-All. He also appeals from several of the trial court’s prejudgment orders. We affirm the judgment in favor of JLG, but otherwise reverse.

In 2007, the Santa Clara County District Attorney filed a petition to commit defendant Ramiro Gonzales as a sexually violent predator (SVP) under the SVP Act. (Welf. & Inst. Code, § 6600 et seq.)[1] A jury found that defendant was an SVP, and the trial court ordered defendant to be committed for an indeterminate term.
Defendant appealed from the commitment order. On appeal, defendant made four arguments: 1) the trial court erred in releasing psychological records to the prosecution and in admitting the testimony of defendant’s former therapist; 2) there was insufficient evidence of materially changed circumstances since a 2004 determination that defendant was not an SVP; 3) the trial court erred in refusing to instruct the jury that defendant’s mental retardation was not a mental disorder for purposes of the SVP Act; and 4) indeterminate commitment under the SVP Act violates various constitutional guarantees.

Plaintiff sued multiple defendants in connection with an allegedly fraudulent deed of trust recorded against her property. Plaintiff included ASC, which serviced the loan, as a named defendant, along with defendant The Bank of New York Mellon (“Bank”), and others.
ASC demurred to the sixth and eighth causes of action of plaintiff’s third amended complaint, which were the only causes of action directed against ASC. In March 2010, the court (Judge Rodriguez) sustained ASC’s demurrer without leave to amend.
In May 2010, the court signed and filed an order dismissing ASC from the litigation with prejudice. Plaintiff never appealed from the signed order of dismissal.
Following the dismissal order, plaintiff’s lawsuit proceeded against the remaining defendants. The operative complaint is the fifth amended complaint.
In September 2012, plaintiff filed a notice of motion to file a sixth amended complaint to allege “newly discovered facts regarding the failure to have been given notice of her right to cancel [the loan in this case] and failure to have been given two copies of the document to use for cancellation.” In November 2012, the court denied plaintiff’s motion to amend.

Defendant James Reyes Lopez pleaded guilty to four counts of second degree robbery, and was sentenced to 110 years to life in prison.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record.
On June 4, 2013, this court provided defendant with 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel’s Wende/Anders brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.

Juan Antonio Zamora appeals from a judgment after a jury convicted him of four counts of committing a lewd act on a child under the age of 14 years and three counts of sexual penetration with a child 10 years of age or younger. Zamora argues:
(1) insufficient evidence supports a finding of sexual penetration; (2) the trial court erred in admitting portions of the investigating detective’s testimony; (3) the court failed to instruct the jury sua sponte on child sexual abuse accommodation syndrome (CSAAS); (4) the court erred in instructing the jury on unanimity; (5) he received ineffective assistance of counsel; and (6) there was cumulative error. We agree the court erred in admitting one portion of the detective’s testimony but conclude Zamora was not prejudiced. None of his other contentions have merit, and we affirm the judgment.

Plaintiffs William Dampier, Theodore Kobayashi, Samuel Lazzara, and Stanley Zelinger have filed appeals from an order granting a motion for attorney fees filed by defendant Solar & Environmental Technologies Corporation (SETC). SETC failed to file a respondent’s brief. In this circumstance we could assume the truth of the opening brief’s factual statements “without making an independent study of the record” and reverse the trial court’s order on the assumption “the appellant[s’] points are well taken.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 720, p. 788.) But “since [an] appellant has the affirmative burden to show error whether or not [a] respondent’s brief has been filed” (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854), “the better rule is to examine the record on the basis of appellant[s’] brief and to reverse only if prejudicial error is found” (Walker v. Porter (1974) 44 Cal.App.3d 174, 177). Thus, we shall decide the appeal based “on the record, the opening brief, and any oral argument by the appellant[s].” (Cal. Rules of Court, rule 8.220(a)(2).) Since plaintiffs have failed to establish reversible error, we affirm the fee award.