CA Unpub Decisions

Plaintiff Brea Imperial, Inc. (BII), appeals from an order awarding costs on appeal to defendant Automotive Wheels, Inc. (AWI), contending AWI wrongly recovered almost $180,000 in appeal bond premiums. But the court did not abuse its discretion by finding the bond was necessary. Nor did it abuse its discretion by finding it reasonable to allow AWI to recover all of the premiums. We affirm.

Kenneth W. Fuller appeals from an order dismissing his cross-complaint against Dan Neyenhuis. The dismissal followed – albeit in rather circuitous fashion – the trial court’s order sustaining Neyenhuis’ demurrer to Fuller’s first amended cross-complaint. The court did give Fuller 20 days leave to amend, but Fuller submitted his proposed second amended cross-complaint two days late – apparently due to counsel’s illness – and was thus obligated to seek a court order allowing it to be filed.

Appellant T.D., the mother of the minor T.L., appeals from the juvenile court's orders terminating parental rights. (Welf. & Inst. Code, §§ 395, 366.26; undesignated statutory references that follow are to this code.) She contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). We affirm.

A jury convicted Danny Thompson of two counts of kidnapping for the purpose of robbery (Pen. Code,[1] § 209, subd. (b)) and three counts of second degree robbery (§ 211). The jury found that Thompson personally used a firearm within the meaning of section 12022.53, subdivision (b) in committing each of these crimes.[2] In a bifurcated proceeding, Thompson admitted he had a prior serious felony conviction (§ 667, subd. (a)) and two prior strike convictions (§ 667, subds. (b)-(i)). The trial court sentenced Thompson to an indeterminate term of 75 years to life plus a determinate term of 45 years.

Raul Pardo Avina and George Gomez, Jr., who were jointly charged in a 35-count amended information and jointly tried before a jury, were convicted of numerous offenses committed in late April through late June of 2006, including many robberies, in Riverside County.[1] The court sentenced Avina to an aggregate prison term of 91 years and Gomez to an aggregate term of 58 years four months.
Gomez and Avina separately appeal. Gomez contends there is insufficient evidence to support his convictions of counts 8 (attempted robbery of Dean Goetz), 17 (robbery of Jesus Sustaita Hernandez), and 22 (robbery of Salvador Pimentel Valencia).

Appellant T.D., the mother of the minor T.L., appeals from the juvenile court's orders terminating parental rights. (Welf. & Inst. Code, §§ 395, 366.26; undesignated statutory references that follow are to this code.) She contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). We affirm.

A jury convicted Danny Thompson of two counts of kidnapping for the purpose of robbery (Pen. Code,[1] § 209, subd. (b)) and three counts of second degree robbery (§ 211). The jury found that Thompson personally used a firearm within the meaning of section 12022.53, subdivision (b) in committing each of these crimes.[2] In a bifurcated proceeding, Thompson admitted he had a prior serious felony conviction (§ 667, subd. (a)) and two prior strike convictions (§ 667, subds. (b)-(i)). The trial court sentenced Thompson to an indeterminate term of 75 years to life plus a determinate term of 45 years.

Raul Pardo Avina and George Gomez, Jr., who were jointly charged in a 35-count amended information and jointly tried before a jury, were convicted of numerous offenses committed in late April through late June of 2006, including many robberies, in Riverside County.[1] The court sentenced Avina to an aggregate prison term of 91 years and Gomez to an aggregate term of 58 years four months.
Gomez and Avina separately appeal. Gomez contends there is insufficient evidence to support his convictions of counts 8 (attempted robbery of Dean Goetz), 17 (robbery of Jesus Sustaita Hernandez), and 22 (robbery of Salvador Pimentel Valencia).

In this action, plaintiff Rebecca Bush sued the operators of a skilled nursing facility for elder abuse (among other causes of action) based on their alleged neglect in providing her care and treatment at the facility. In the same complaint, Bush's daughter, plaintiff Charmaine Jennings, sued the same defendants for negligent infliction of emotional distress based on her alleged observation of the harm they caused Bush through their neglect. When defendants moved to compel arbitration pursuant to a written agreement with Bush, the trial court exercised its discretion under Code of Civil Procedure section 1281.2, subdivision (c) (section 1281.2(c)) to deny their motions because of the possibility of conflicting rulings between Bush's claim for elder abuse, which was subject to arbitration, and Jennings's claim for negligent infliction of emotional distress, which was not.[1]

Convicted of lewd acts and battery on a child and sentenced to 12 years in state prison, the defendant appeals. He contends: (1) his battery conviction must be reversed because it was a lesser-included offense of a lewd act, (2) the trial court erred by imposing unstayed terms for a lewd act and the battery, (3) the court abused its discretion by failing to state separate reasons for sentencing choices, and (4) the court improperly imposed fees, for his court-appointed attorney and for booking, without evidence of the defendant's ability to pay. We conclude that the fee for his court-appointed attorney must be stricken. In all other respects, however, we find no prejudicial error and therefore affirm the judgment as modified.

Defendant George Phillip Cruz appeals from his conviction on eight counts of oral copulation or sexual penetration with a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (b).) He claims (1) his pretrial confession to the crimes was unlawfully extracted prior to receiving a Miranda warning;[1]
(2) his confession was unlawfully coerced from him; (3) his total state prison sentence of 120 years to life is cruel and unusual punishment; and (4) the trial court wrongfully imposed a court facility fee under Government Code section 70373 on six of his counts because he committed those crimes before that statute became effective.
Defendant has forfeited his challenges to the use of his confession. He admits he made no motion at trial to exclude his confession on any ground. A failure to challenge an alleged Miranda violation and the voluntariness of a confession at trial forfeits the claims on appeal. (People v. Williams (2010) 49 Cal.4th 405, 435; People v. Peters (1972) 23 Cal.App.3d 522, 529-530.)

Defendant Jerry Dale Sigman appeals his convictions for robbery (Pen. Code, § 211), escape from custody (Pen. Code, § 4530, subd. (b)), unlawful taking of a vehicle (Veh. Code, § 10851),[1] evading a police officer (§ 2800.1), possession of a firearm by a felon, (Pen. Code, § 12021, subd. (a)(1)), possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)), and misdemeanor hit and run (§ 20002, subd. (a)). Defendant contends (1) the trial court abused its discretion in ordering him shackled during trial, and (2) there was insufficient evidence to support his conviction for evading a police officer. Based on defendant's escape attempts and rule violations, the trial court did not abuse its discretion in ordering an ankle shackle attached to the floor during trial. The shackle was unobtrusive and the jury could not see the ankle shackle. With respect to the conviction for evading a police officer, there is uncontradicted and credible evidence that the marked vehicle chasing defendant had its forward facing red and blue flashing overhead lights activated. Accordingly, we affirm the judgment.

Subcontractor Pavement Recycling Systems, Inc. (Pavement) appeals from an order denying its motion for attorney's fees after it prevailed against general contractor Toro Enterprises, Inc. (Toro), on a cross-complaint for contractual indemnity. We reverse because Pavement was entitled to recover its attorney's fees under the terms of the subcontract.

Shawn Damon Barth appeals the judgment entered after he pled guilty to aggravated sexual assault of a child under the age of 14 (Pen. Code,[1] § 269, subd. (a)(1)) and continuous sexual abuse of a child (§ 288.5, subd. (a)), and admitted that each count involved substantial sexual conduct (§ 1203.066, subd. (a)(8)). The trial court sentenced him to 15 years to life in state prison on the aggravated sexual assault count, plus a concurrent 12-year term on the count for continuous sexual abuse of a child. In addition to various fines and fees, appellant was ordered to pay $100,000 in direct victim restitution pursuant to section 1202.4, subdivision (f)(3)(F), and an additional amount to be paid to the Victim Compensation Board by further order of the court.