CA Unpub Decisions

Defendant was convicted following a court trial of sexual offenses, and the trial court sentenced him pursuant to the one strike law (Pen. Code, § 667.61)[1] to 15 years to life for one of his convictions. Defendant argues that the sentence violates the ex post facto clauses of the United States and California Constitutions, because his offenses were committed before the effective date of the one strike law, and the Attorney General concedes that the trial court erred. We find the concession appropriate, vacate defendant's sentence, and remand the matter for resentencing under the law in effect prior to the effective date of the one strike law.

Defendant Edward Wayne Domingues was convicted after jury trial of 16 counts of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1); counts 1-16),[1] six counts of lewd conduct on a child age 14 or 15 (§ 288, subd. (c)(1); counts 17-22), and nine counts of lewd conduct on a child under 14 (former § 288, subd. (b); counts 23-31). The jury further found true allegations as to counts 1 through 16 that defendant committed the offenses against more than one victim (§ 667.61, subds. (b) & (e)), and as to counts 23 through 31 that the complaint was filed within one year of when the victim reported the offense to a law enforcement agency (§ 803, subd. (f)). The jury separately found true an allegation that defendant had a prior strike. (§§ 667, subds. (a), (b)-(i), 1170.12.) The trial court sentenced defendant to prison for the indeterminate term of 480 years to life consecutive to the determinate term of 241 years eight months.

In this marital dissolution proceeding, the trial court failed to value the community property stock in a closely held corporation in which the husband was heavily involved, instead ordering the stock to be divided in kind pendente lite so the wife could sell her share to a â€

A.H. (Mother) appeals from the order made at the six-month review hearing (Welf. & Inst. Code, § 366.21),[1] at which the juvenile court terminated reunification services as to her daughter A.H. Mother contends there is insufficient evidence to support the juvenile court's findings: (1) she had been provided with reasonable reunification services; (2) she had failed to make substantive progress in her case plan; and (3) there was a risk of detriment if A.H. was returned to Mother's custody. We find no error and affirm the order.

Defendants Gil Kim and Judy Kim appeal from a default judgment after the trial court imposed terminating sanctions against them for flouting the discovery process. Two brothers, Sung Ok and Jae Ok, and their corporation, Sojo, Inc., (collectively, plaintiffs) sued the Kims for fraud, conversion, breach of contract and related causes of action for misappropriating plaintiffs' $1 million capital contribution to a business partnership. In the default judgment entered following the terminating sanctions, the trial court awarded plaintiffs just over $1 million, including more than $800,000 in compensatory damages, and the remainder in prejudgment interest, attorney fees, and costs.

Angus Petroleum Corporation (Angus) appeals from an order dismissing its petition for writ of prohibition by which it sought to prevent the Department of Conservation, Division of Oil, Gas and Geothermal Resources (the Department), from taking further action to enforce an administrative order directing Angus to disconnect water injection lines from 13 oil wells, at which it was resuming production after many idle years, until it obtained a current valid permit. The petition was dismissed because Angus failed to exhaust its administrative remedies.
The wells at issue are a subset of the wells that were subject to an earlier administrative order considered by this court in The Termo Co. v. Luther (2008) 169 Cal.App.4th 394 (Termo). In Termo, we reversed the trial court order denying Angus's petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5), because the trial court had applied the wrong standard when reviewing the Department's order directing the plugging and abandonment of the then idle wells. We concluded because the order affected a fundamental vested right, the trial court should have applied the independent judgment standard of review. In this appeal, Angus contends our holding in Termo excuses it from exhausting its administrative remedies. We reject its contentions and affirm the order.

We appointed counsel to represent Cresensiano Ochoa Carbajal on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. Carbajal was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
Counsel did not set forth any facts or provide the court with information as to issues that might arguably support an appeal to assist the court with its independent review pursuant to Anders v. California (1967) 386 U.S. 738. We have independently examined the record and found no arguable issues. (People v. Wende (1979)
25 Cal.3d 436.) We affirm the judgment.

A modification decision.

Plaintiffs Richard Kelter and Rio Vista West, LLC (collectively, Kelter) established a pension plan designed to claim income tax deductions for the contributions he paid into the plan. The Internal Revenue Service (IRS) later audited the plan, found it constituted an illegal tax shelter not entitled to income tax benefits, and notified Kelter he owed back taxes, penalties, and interest on the tax deductions he took for plan contributions.
Kelter sued the insurance companies, pension planners, financial advisors, accountants, attorneys, and other professionals who developed and sold him the pension plan. Kelter alleged these defendants knew the pension plan featured characteristics the IRS looked for in illegal tax shelters, but nonetheless intentionally misrepresented that the plan qualified for preferential tax treatment, while concealing the significant tax risks associated with the plan. Kelter sought to recover his contributions to the plan, all back taxes, penalties, and interest the IRS assessed, and the fees and costs he incurred during the IRS audit.

Respondent Jennifer Burke filed a complaint in Orange County Superior Court alleging pregnancy and gender discrimination and retaliation after she was terminated from her job with Century 21 Award (Award). Award moved to compel arbitration, arguing that because Burke had signed an acknowledgment that she had received an employee handbook purporting to include an arbitration agreement, she was required to arbitrate. The trial court disagreed, and because we concur that no valid arbitration agreement existed, we affirm the court's order.

Late in the evening on Super Bowl Sunday, 2006, four African-American males traveled from Oceanside to Irvine to meet a drug dealer, ostensibly to buy about $1,200 worth of cocaine. Around 11:30 that night, two of those four males were seen chasing the drug dealer, and at least one of those two shot the drug dealer dead. A third male was videotaped urinating in a nearby parking lot. The fourth was apparently not involved in the chase.

A jury convicted defendants Daniel William Heath and Denis O'Brien of multiple counts of many theft- and securities-related offenses in connection with a Ponzi scheme targeted at retirement-age victims.[1] Defendants contend their convictions must be reversed based on the statute of limitations, unconstitutional vagueness, jury instructional error, and cumulative error. Defendants further argue their respective presentence conduct credit must be recalculated in accordance with Penal Code section 4019, as amended effective January 25, 2010.[2] On this last issue, we agree and remand the case to the trial court with directions to recalculate defendants' presentence conduct credit. In all other respects, we affirm the judgment.

On June 21, 2010, a petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that Daniel had made a false report to a peace officer (Pen. Code, § 148.5, subd. (b)(2)). As a result, Daniel was placed on informal probation. Within the probationary period, a second petition was filed, alleging that Daniel had committed second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). On November 8, 2010, Daniel admitted the allegation, and his informal probation was terminated. On December 2, 2010, he was adjudged a ward of the court and placed on probation on various terms and conditions. He filed a timely notice of appeal.

On October 19, 2009, appellant, Emmanuel Limaco, was charged in a complaint with possessing a weapon in a penal institution (Pen. Code,[1] § 4502; count 1). The complaint further alleged that appellant had a prior strike conviction for assault with a firearm. (§§ 245, subd. (a)(2), 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
On January 6, 2010, the court granted the People's motion to add a charge that appellant manufactured or attempted to manufacture a weapon in a penal institution (§ 4502, subd. (b); count 2), and to add to the new charge the allegation that appellant suffered a prior strike conviction.