CA Unpub Decisions

Defendant and appellant Daniel Thomas Farmer was charged by information with discharging a firearm with gross negligence (Pen. Code,[1] § 246.3, subd. (a), count 1), possession of an assault weapon (§ 12280, subd. (b), count 2), and possession of a large capacity magazine (§ 12020, subd. (a)(2), count 3). Defendant filed a motion to suppress evidence that was seized after an illegal patdown search. (§ 1538.5.) A trial court denied the motion. Defendant renewed the motion in conjunction with a motion to dismiss. (§ 995.) The court denied both motions. Then, pursuant to a plea agreement, defendant pled guilty to count 3. The court sentenced him to 16 months in county prison and awarded 116 days of presentence custody credits (58 actual days and 58 conduct credits).
Defendant filed a notice of appeal regarding the denial of the motion to suppress. We affirm.

A jury convicted defendant and appellant Oscar Armando Aguilar of five counts of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1), counts 1-5)[1], two counts of rape by means of force, violence, or duress (§ 261, subd. (a)(2), counts 6 & 8), and two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d), counts 7 & 9). The trial court sentenced defendant to eight years in state prison on count 6, and imposed six years on count 8 to run consecutive to count 6; then, as to counts 7 and 9, the court imposed one consecutive year on each count, for a total determinate sentence of 16 years. The court also imposed a 15-year-to-life term on each of counts 1 through 5, to run consecutive to each other and to the determinate term. Therefore, defendant received a total determinate term of 16 years, plus an indeterminate term of 75 years to life.

Sherri K. appeals orders entered at hearings held pursuant to Welfare and Institutions Code sections 300, subdivision (b), and 361, subdivision (c)(1). Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Sherri's requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.)

Father R.M. appeals an order granting the petition of stepfather R.B. and allowing R.B. to adopt minor Janelle M. without R.M.'s consent (Fam. Code, § 8604, subd. (b)).[1] R.M. contends R.B.'s adoption request and petition did not allege, and the trial court did not expressly find, that R.M. had willfully failed to support Janelle. We affirm.

Neil Bischler appeals from an order denying his motion to modify a child custody order and allow his children to move from San Diego County to live with him in Illinois. He argues the trial court (1) abused its discretion by failing to consider or make express findings on various issues and making several improper findings and (2) violated his due process rights by prejudging the case. We reject these contentions and affirm the order.

A jury found Jan Vorabduth guilty of two counts of residential burglary (Pen. Code, §§ 459, 460;[1] counts 1 and 4) with another person, other than an accomplice, present in the residence during the burglary in count 1 (§ 667.5, subd. (c)(21)), and three counts of receiving stolen property (§ 496, subd. (a); counts 6, 7 and 8). The court sentenced Vorabduth to six years in prison: the four-year middle term on count 1, one year four months (one-third the middle term) on count 4, eight months (one-third the middle term) on count 6 and concurrent two-year middle terms on counts 7 and 8. Vorabduth appeals, contending her convictions on two of the counts of receiving stolen property must be reversed because there was no evidence she received stolen property on more than one occasion, and the $200 court operations assessment therefore must be reduced to $120 (§ 1465.8). We agree with both contentions.

A public entity typically requires a successful bidding contractor to obtain a performance bond to ensure the work will be fully performed. To obtain this bond, the contractor must generally enter into an indemnity contract with a surety in which the surety agrees to issue the bond and guaranty the performance. In exchange, the contractor agrees to indemnify (repay) the surety for any payments made by the surety to the public entity on a claim. Under the indemnity contract, a surety is not the contractor's insurer, but rather acts as a guarantor with rights against the contractor if the surety pays on a claim brought by the public entity.
In this case, a public entity brought claims against a contractor for claimed deficiencies in the work and against the contractor's surety to enforce a performance bond. The surety settled this claim for $250,000 and then sued the contractor and others who had signed a March 2006 indemnity agreement. As amended, the complaint alleged these defendants breached the indemnity agreement by refusing to indemnify the surety for the $250,000 settlement payment and for the attorney fees and costs incurred in the underlying action. The contractor (and the other defendants) filed a cross-complaint, seeking declaratory relief that no valid indemnity contract existed and various other forms of relief pertaining to a deed of trust.
The surety moved for summary judgment on the complaint and cross-complaint. The court granted the motion, and entered a judgment in the surety's favor for $250,000. The court also stated the surety would be entitled to move for its attorney fees and costs incurred in the underlying action in a postjudgment motion.
The contractor and related parties appeal, contending disputed factual issues exist as to whether there was a valid indemnity agreement governing the performance bond at issue and whether the $250,000 was a reasonable settlement. We conclude the court erred in granting summary judgment on the complaint and cross-complaint. Specifically, we determine there are triable issues of fact regarding the reasonableness of the $250,000 settlement and the reasonableness of the fees incurred by the surety in the litigation on the underlying bond. For guidance on remand, we also discuss appellants' argument that they are not bound to indemnify the surety because there was no valid applicable indemnity agreement between the parties.

Mother, Christina H., appeals from the juvenile court order terminating her parental rights to 22-month-old Josiah H. (the minor). She contends the trial court erred in finding that the beneficial parental relationship exception to adoption did not apply. We shall affirm.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A jury found defendant Joshua Charles Ackerman guilty of felony vandalism and the misdemeanor of firing a BB gun in a grossly negligent manner. (Pen. Code, §§ 594, subd. (a) [count one], 246.3, subd. (b) [count two].) The trial court granted formal probation on the felony count and imposed a one-year jail term for the misdemeanor.
On appeal, defendant argues the trial court abused its discretion in denying his motion for disclosure of juror identification information (or alternately for a mistrial for juror misconduct). He also contends he cannot be punished both for firing the BB gun and for the act of vandalism that resulted. We shall affirm the verdicts, but must remand for resentencing and stay execution of sentence on count two.
Although both parties provide a thorough summary of the evidence at trial, the arguments on appeal implicate only a sliver of the facts underlying the convictions, and we do not need to assess prejudice. We thus note only that two passengers riding on a commuter bus heard a loud bang. The window next to one of them shattered. The other saw the driver of a blue “Super Shuttle” van next to the bus with a pistol in his right hand pointed out the window. As the driver slowed down for traffic in front of him, he pulled the pistol back into the van. At trial, the second bus passenger identified defendant as the driver of the van. Based on Super Shuttle’s satellite tracking data, the only van in the vicinity of the bus at that time was one that defendant normally drove. We will include any other pertinent facts in the Discussion.

Deanna H., the mother of 18-year-old M.C., 13-year-old S.H., 11-year-old Anthony H. and eight-year-old Joseph H., appeals from an order of the Sacramento County Juvenile Court adjudging the children dependents of the court and removing them from parental custody. Ronald H., the presumed father of S.H., Anthony and Joseph, appeals from the same order.
On appeal, the parents contend the evidence is not sufficient to support the jurisdictional finding or the removal order. We shall affirm.

Defendant Jason Scott Jorgenson appeals from the judgment entered after he pleaded no contest to committing a lewd act upon a child. He contends on appeal the court erred in imposing DNA penalty assessments pursuant to Government Code section 76104.7, and asks the abstract of judgment be amended to state the statutory basis for the fines and fees imposed. The People concede the errors, and we agree with the parties.

Following a jury trial, defendant Jose Camdelario Duarte was convicted of first degree murder (Pen. Code, § 187, subd. (a))[1] with a deadly weapon enhancement (§ 12022, subd. (b)(1)) and arson of an inhabited structure (§ 451, subd. (b)). The trial court sentenced defendant to 34 years to life in state prison.
On appeal, defendant contends the trial court erred in denying his request to instruct on voluntary manslaughter as a lesser included offense of murder. We shall affirm.

Defendants, Tywana Marie Cathey (Cathey) and Christopher Mason, Jr. (Mason), while formerly married, remained linked in an on-going drug trafficking operation for which they were arrested, charged, and tried by jury.
Mason was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count one), possession of a firearm by a convicted felon (Pen. Code, former § 12021, subd. (a)(1), now § 29800, subd. (a)(1); count three),[1] and possession of ammunition while prohibited from owning or possessing a firearm (former § 12316, subd. (b)(1), now § 30305, subd. (a)(1); count four). He was further found personally armed with a firearm in the commission of count one. (§ 12022, subd. (c).) A count of cultivation of marijuana ended in deadlock. (Health & Saf. Code, § 11358; count two).