CA Unpub Decisions

In this judgment roll appeal, plaintiff Anna M. Contreras contends the trial court erred in granting defendants motion for nonsuit during the jury trial of her complaint for false arrest, battery, and intentional infliction of emotional distress. Finding no error, Court affirm the order.

A jury found defendant Gary Wayne Goodsell guilty of possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). The trial court then sentenced defendant to five years probation under Proposition 36. (Pen. Code, 1210.1.) As a condition of his probation, the trial court ordered defendant to serve 60 days in jail, but stayed the incarceration pending defendants successful completion of probation. The trial court is hereby directed to strike the portion of defendants probation conditions that imposes 60 days of incarceration in the Sacramento County Jail. The judgment is otherwise affirmed.

Defendant Jacob Curtis Henson contends that, by operation of Penal Code section 1203.2a, the Yolo County Superior Court lacked jurisdiction to impose sentence on his previously suspended prison term in case No. 06 1918. The People concede the court acted without jurisdiction. Court agree and shall order reinstatement of the original sentence a grant of probation with execution of sentence suspended.

Defendant Eleazar Ibarrola pleaded no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))[1]and admitted two prior strike convictions for attempted murder ( 664/187) and robbery ( 211), both arising out of a single incident in 1994. This prior incident involved defendant and three other individuals stealing beer from two convenience stores. The cashier of the first convenience store was killed when one of defendants accomplices pulled a gun and shot him in the chest. The cashier of the second convenience store was also fired upon, but was not hit. On appeal, defendant contends that the trial court abused its discretion by refusing to strike one of his prior strike convictions. Court disagree and will affirm the judgment.

In August 2006, defendant Spencer Lee Warmington pled no contest to first degree burglary in case No. 05F7377 and second degree burglary in case No. 06F2409, in exchange for a grant of probation in both cases. Consistent with his plea, defendant was placed on formal probation for three years and ordered to pay various fines and fees. The judgment is affirmed.

B. H., mother of the minor, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, 388, 366.26, 395.)[1] Appellant contends the court abused its discretion in denying her petition for modification, the proof requirements of section 388 are unconstitutional as applied to her, and the court and the Department of Health and Human Services (DHHS) failed to inquire about the minors Indian heritage pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the order denying appellants petition for modification and reverse the order terminating parental rights and remand for further proceedings regarding the ICWA.

Jonathan Nissanoff, M.D., appeals a judgment entered after the superior court granted summary judgment on his breach of contract claim against Philip Balikian, M.D., based in part on the finding that the contract's liquidated damages provision was unenforceable. He contends that the superior court applied an erroneous standard in concluding that the liquidated damages provision was invalid. Court disagree and affirm the judgment.

Defendant pled guilty to identity theft (count 1Pen. Code, 530.5, subd. (a)),[1]resisting an executive officer (count 5 69), and false imprisonment by violence (count 7 236). On appeal, defendant claims his plea was constitutionally defective because neither the court nor defense counsel adequately apprised him of the nature and elements of the count 7 offense. Court find that defendants plea was voluntary and intelligent under a totality of the circumstances and, therefore, affirm the judgment in full.

Appellant Richard Paul Adams allegedly walked into a Kmart store, picked up boxes of new tools from a shelf and strode out without paying. Although he and the woman with him drove away, a Kmart employee was able to provide the police with a description of the vehicle. One month later, when a vehicle matching that description was pulled over, appellant lied to the police about his identity. Appellant was subsequently charged with petty theft with a prior felony conviction, in violation of Penal Code section 666[1](count 1), and falsely identifying himself to a police officer, in violation of section 148.9, subdivision (a) (count 2). Appellant pled no contest to count 2 and the case proceeded to trial on count 1. The trial judge instructed the jury with CALJIC No. 2.03, which allowed the jury to consider a willfully false or deliberately misleading statement concerning the crime for which he is now being tried as a circumstance tending to prove consciousness of guilt. The jury found appellant guilty on count 1. Appellant was sentenced to seven years in state prison, which included a six-year term on count 1 based on the upper term of three years doubled due to a prior strike conviction. Appellant appealed, contending that use of CALJIC No. 2.03 constituted instructional error, the upper term sentence violated his constitutional right to a jury trial, and his presentence custody credits were miscalculated. Court find no error and will affirm the judgment.

After appellant B.G. (mother) severely injured her infant nephew, the juvenile court removed her two children from her custody. On appeal, mother contends (1) the juvenile court erred by denying her motion to strike the testimony of a child abuse expert, Dr. Fields, and (2) without his testimony, the evidence was insufficient to support the courts order to remove one of her children from her custody. Court affirm the juvenile courts orders.

Appellant J.R. (mother) contends the juvenile court abused its discretion by terminating her visitation with her two children, C. and L. Court will affirm the juvenile courts order.

John Henry Bolton appeals from a judgment after a jury convicted him of first degree robbery and found true he personally used a firearm. Bolton argues the trial court erroneously denied his motion to suppress his prearrest statements because he was not advised of his Miranda[1] rights, the court erroneously admitted evidence of an uncharged robbery, the court erroneously admitted information found on two cellular telephones over his hearsay objections, and the prosecutor committed misconduct. None of his contentions have merit, and Court affirm the judgment.

Appellant challenges his commitment as a Sexually Violent Predator (SVP). He contends that he was denied due process by the consolidation of his recommitment petitions and the repeated continuances of the trial date and that the trial court should have dismissed the petitions. He further contends, and respondent concedes, that the trial court lacked the authority to retroactively convert his SVP commitment to an indeterminate term. Court reverse the order imposing an indeterminate term and remand with directions to dismiss the petitions.

In this marital dissolution proceeding, respondent Peter D. Moody (husband) brought a motion for entry of judgment based on his previously-recited settlement agreement with appellant Nancy Dow Moody (wife). (Code of Civ. Proc., 664.6.) The trial court entered judgment and ordered that wife pay husband $10,000 in attorney fees and costs under Family Code sections 271 and 2030. Wife contends the trial court abused its discretion in awarding these fees. Court affirm.