CA Unpub Decisions

The juvenile court declared Edward C. a ward of the court (Welf. & Inst. Code, 602) after he admitted to various counts of assault, battery, vandalism, and criminal threats. Edward appeals the probation condition requiring him to obtain approval from the probation officer to change his residence, asserting that it is overbroad and therefore constitutionally invalid. Court disagree and affirm the judgment.

Patricia K. Witzman (Patricia) appeals an order granting in part a request by her former spouse, Scott H. Witzman (Scott), for modification of a child custody and visitation order.[1] The previous child custody and visitation order, which was a final custody determination, awarded to Patricia and Scott joint legal custody of their minor son and daughter (together the children). It also awarded "primary physical custody" to Patricia and visitation to Scott under a child-sharing schedule. In addition, because of son's severe allergic reactions to cat dander and the fact that Scott's parents had numerous cats in their home, the court prohibited Scott from permitting son to visit Scott's parents or sister. Claiming that Patricia was continuing to alienate the children from him, Scott sought sole physical custody, but not sole legal custody, of the children. The children's attorney submitted a report recommending that Scott and Patricia continue to have joint legal custody of the children and that they also have joint physical custody. It also recommended certain changes to the child-sharing schedule, revisions to the orders governing the children's visitation with their grandparents and aunt, and restrictions on the parents' behavior toward the children. Following a hearing, the court issued the challenged order, finding that Patricia's continuing behavior in alienating the children from their father was a substantial change in circumstances and adopting the recommendations set forth in the report submitted by the children's attorney. Patricia appeals the order, contending (1) there is no evidence of a substantial change in circumstances because any lack of progress on her part in altering her behavior was not a change of circumstances, and "[t]here clearly was no change in circumstances with respect to the orders concerning [son's] allergies to cat dander" or with respect to the child-sharing schedule; and (2) the court erred in admitting and considering the report submitted by the children's attorney, because it contained hearsay statements by the children and improper analysis by the attorney. Court affirm the order.

In November 2008 Jason Madrid entered a negotiated guilty plea to possessing marijuana for sale (Health & Saf. Code, 11359, subd. (a)) and the court placed him on three years' probation. In March 2009 Madrid filed a motion to withdraw the plea, contending counsel did not advise him correctly concerning the immigration consequences of the plea. In April the court denied the motion. Madrid appeals. Court affirm.

Elaine has a long history of psychiatric illness, psychiatric hospitalizations, and conservatorships. On March 2, 2009, she was admitted to a psychiatric hospital for the sixth time since the beginning of the year. An investigator for respondent, the San Diego County Health and Human Services Agency, through the Office of the Public Conservator (the public conservator) met with Elaine on March 10. Elaine acknowledged she had bipolar disorder and schizophrenia, believed she needed medications, and was willing to return to a skilled nursing facility and accept assistance from her case manager. On March 16 the court appointed a temporary conservator. Elaine was released to a skilled nursing facility on March 17 but was readmitted to the hospital 24 hours later. A similar release and readmission took place from March 23 to March 26.

Appellant Jean Nelson (wife) appeals from an order of the family law court denying her motion to vacate the judgment, reopen evidence, and award her a 100 percent interest in certain assets. The court also imposed sanctions on wife for bringing the motion to vacate. Wife failed to file a timely notice of appeal from the judgment itself; the only issue before us is the courts ruling on the postjudgment motion.
Wifes motion identified two grounds upon which to set aside the judgment and to reopen the evidence: First, mandatory relief from a default on an issue arising from trial counsels mistake, and second, husbands failure to comply with his duty to disclose certain accounts, which remained unadjudicated. The trial court properly denied the motion to vacate as to the first ground, but husband undeniably failed to comply with his duty of disclosure and the judgment had failed to divide the undisclosed assets. Because the trial court retains jurisdiction to divide unadjudicated assets, which are presumptively community property, we construe the second ground of wifes motion not as a motion to vacate the judgment, but as a postjudgment motion to divide the excluded assets. (Fam. Code, 2550, et seq.)[1] The trial court erred in failing to deal with the excluded assets. In addition, because wifes motion identified a facially meritorious claimthat certain community property assets had not been dividedthe order imposing sanction upon her was erroneous. Court therefore reverse the trial courts ruling and remand for further proceedings.

A jury convicted defendant Leonard Acosta, Jr., of corporal injury on a spouse resulting in a traumatic condition (count 1Pen. Code 273.5, subd. (a))[1]and assault with a deadly weapon (count 2 245, subd. (a)(1)). In a bifurcated proceeding thereafter, the court found true allegations that defendant had suffered two prior serious felony convictions and three prior strike convictions. The court sentenced defendant to an aggregate term of 35 years to life. On appeal, defendant makes two contentions: (1) the trial court erred in admitting evidence of defendants prior act of domestic violence, and (2) insufficient evidence supports the finding that defendant used a deadly weapon. Finding no error Court affirm the judgment in full.

Appellant Rebecca Nordstrom (Rebecca) challenges the trial courts judgment that Respondent David Nordstroms (Davids) accumulated vacation and sick leave had no cash value as of the date of separation and thus were not a community property asset. As discussed below, we affirm the trial courts judgment based on the rule set forth in In re Marriage of Lorenz (1983) 146 Cal.App.3d 464 (Lorenz), because David could not have exchanged his leave hours for money as of the date of separation.

Plaintiff and appellant Sid M. Safi Eslami sued defendants and respondents J. Negrete, L. Torres, and Don Williamson, and other law enforcement officers, for various causes of action arising from their alleged failures to properly investigate charges that plaintiffs landlord had broken into plaintiffs rental premises and caused various damages. The trial court sustained the officers demurrers to the second amended complaint without leave to amend. Court affirm.

Defendant and appellant Jason Adam Lopez pleaded guilty to two felony charges in one case, and admitted a violation of probation in another case. He appeals two sentencing matters: the stay of a sentence for receiving stolen property, and the order to pay $150 to reimburse defense attorney costs. The People concede the error as to both matters. Court therefore modify the judgment and affirm as modified.

In this matter, we have reviewed the petition and invited respondent and real party in interest to respond. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is, therefore, appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

Jason R. Brookss drivers license was suspended by the Department of Motor Vehicles (DMV) for driving a motor vehicle with 0.08 percent or more, by weight, of alcohol in his blood. The determination of Brookss blood-alcohol content (BAC) was based on two breath tests conducted at the time of his arrest. Both breath tests registered a BAC of exactly 0.08 percent. Brooks petitioned for a writ of mandate in Fresno County Superior Court, contending the suspension should be overturned on the ground that the breath test results were unreliable to show his BAC was 0.08 percent because, among other things, the breath test device had an inherent margin of error of .02 percent. The trial court denied the petition. Brookss appeal followed. Court affirm.

A modification decision.

A jury convicted appellant, Lamar Aubrey, of infliction of corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)) and assault with a deadly weapon ( 245, subd. (a)(1)). On appeal, Aubrey contends the court committed instructional error. Court affirm.

Manuel Vega appeals from a sentence of six years for felony elder abuse. He contends that the trial court should have sua sponte instructed the jury on the legal definition of the word likely as it is used in the phrase likely to produce great bodily harm contained in CALCRIM No. 830 (felony elder abuse). He also contends that the trial court erred in denying his motion for a new trial because of juror misconduct. Finally, he contends that the trial court erred in imposing two fines pursuant to Government Code section 70373. For the following reasons, we affirm the convictions and remand to the trial court to strike the two fines.