CA Unpub Decisions

Pedro Canchola Montoya was convicted of transportation for sale of a controlled substance. (Health & Saf. Code, 11379, subd. (a).) He appeals from a judgment that placed him on formal probation for three years subject to various terms and conditions, one being that he pay the costs of probation. Montoya argues this was not part of the oral pronouncement of sentence and must be stricken from the judgment. Court agree, modify the judgment accordingly, and affirm as modified.

Nicole Betts appeals from the judgment of the superior court that dissolved her marriage to Jordan Betts, made child custody and support orders, and divided their property. She challenges only the portion of the judgment that finds a community debt to her father was satisfied, claiming it is not supported by substantial evidence. As a result, she contends, the equalization payment she was ordered to make to Jordan is too high. Court agree; accordingly, Court reverse and remand for a limited retrial.

J.S. appeals from a judgment continuing him as a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and ordering probation. J.S. contends four of his probation conditions are unconstitutional. As we explain below, two of his contentions have merit, and two of his claims are forfeited. Court affirm as modified the nonassociation condition and the no wireless communication devices condition consistent with this opinion. In all other respects, the judgment is affirmed.

State Compensation Insurance Fund (State Fund) obtained summary judgment in an action filed by plaintiff Power Fabricating, Inc., (Power), which sought declaratory relief and damages arising from State Funds failure to defend it in a separate action against Power brought by the widow of a worker who died in an industrial accident. Power contends it presented a triable issue of fact on whether the decedent was employed by Power, a related entity, or a joint venture between the two entities. Power asserts that if the trier of fact determines the decedent had been employed by either Power or the joint venturer, the widows claims could be covered under the employer liability insurance (ELI) provisions under State Funds policy, triggering a duty to defend. State Fund, contends, however, that the situation falls within the worker compensation provisions of the policy, not the ELI provisions, and that its full payment of death benefits to the widow discharged any responsibility to defend.
We agree with State Fund. ELI coverage can accrue only if (a) the worker was acting in the course and scope of employment of the insured; and (b) workers compensation law either does not apply to the situation or the employer may be sued in a capacity other than as an employer. Because Power failed to raise a triable issue of fact on any of the conditions required in (b), ELI coverage cannot be triggered. Court therefore conclude the trial court did not err in granting State Fund summary judgment.

Michael C. appeals from an order that denied a modification petition seeking increased visitation with his children, Melanie C. and Donovan C. The order was made at a continued selection and implementation hearing before another date was set for that hearing. Michael argues the juvenile court abused its discretion in denying the petition and a request for a bonding study. The Orange County Social Services Agency (SSA) moves to dismiss the appeal on the ground the order is not appealable because Micheal did not previously seek writ review. Court agree with SSA and dismiss the appeal.

We appointed counsel to represent defendant Guy Easley on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised the court he found no issues to argue on his behalf. Court provided defendant 30 days to file written argument in his own behalf after receiving notification of his change of address. That period has passed, and Court have received no communication from him.

Plaintiff Charlene DeBert sued neighboring property owners Robert Isaacs, Colleene Isaacs, and Green Mountain Water Company (Green Mountain) for quiet title and related causes of action. She sought to establish a roadway easement. She and Green Mountain settled via a judicially supervised stipulated judgment in which Green Mountain agreed to grant plaintiff a nonexclusive ingress and egress easement over an existing dirt road on its property. The judgment contemplated that the existing road would be surveyed by a neutral licensed surveyor agreed to by the parties or, absent agreement, appointed by the trial court. Plaintiff disagreed with the surveyed description and filed a motion to set aside or modify the judgment grounded upon surprise, which was created by a serious blunder on the part of a neutral expert [the land surveyor]. The trial court denied the motion. It later granted Green Mountains motion for attorney fees incurred in defending the motion, which was based upon an attorney-fee provision in the stipulated judgment. Plaintiff appeals from the order denying her motion and the order granting Green Mountains motion. Both appeals are untimely. We therefore dismiss them. After a court trial, the trial court granted plaintiffs motion to amend the pleadings to conform to proof. At trial, plaintiff had advanced the theory that she held an express easement over the Isaacses property via a 1988 deed from the Isaacses granting a public road easement to Santa Clara County as part of a homesite-approval process. She also had sought reformation of the deed as a remedy. The trial court rendered judgment for the Isaacses. On appeal, plaintiff misstates the scope of review and, through that window, presents a one-sided repetition of her case. Court therefore affirm the judgment.

Defendant Houston was acquitted by a jury of misdemeanor battery but convicted of felony infliction of corporal injury on a spouse and felony assault (two counts). (Pen. Code 242, 273.5, subd. (a), 245, subd. (a)(1).)[1] The jury also made a special finding that the defendant used a knife in the commission of both assaults, and returned guilty verdicts on the lesser included offense of misdemeanor assault as to both of the felony assaults. ( 240.) Defendant was placed on probation on various terms and conditions including service of a county jail sentence. On appeal, defendant contends that the trial court erroneously (1) denied her motions for funds to retain the services of a Battered Womens Syndrome (BWS) expert; (2) denied her motion for a new trial on related grounds; (3) accepted verdicts on two counts of assault with a deadly weapon arising from a single incident; (4) stayed the convictions of the lesser included assault offenses instead of striking them; and (5) ordered her to pay the probation costs as a condition of probation. We modify the judgment to strike the convictions for the lesser included offenses and delete the probation condition that defendant pay for probation costs; however, Court affirm the order that defendant pay such costs and affirm the judgment as modified.

After trial, a jury convicted defendant Joe Manuel Lara of two counts of attempting by means of threats and violence to deter and prevent two executive officers from performing their legal duties and resisting the officers performance by force and violence. (Pen. Code, 69, count 1 (Roy Gutierrez); count 2 (Shawn Wynn).) In the jurys absence, defendant admitted having served separate prison terms for prior felony convictions of unauthorized use of tear gas and sale of phencyclidine (PCP). (Pen. Code, 667.5, subd. (b).) After a court trial, the court found that defendant had served a separate prison term following a felony conviction of battery on a peace officer. The court sentenced defendant to prison for three years, consisting of the midterm of two years on count 1, enhanced by one year for a prison prior with two years concurrent on count 2. The court struck the other two prison prior enhancements pursuant to Penal Code section 1385.
On appeal, defendant challenges the admission of evidence of two of his prior convictions. They were admitted to test the testimony given by defendants sister about his character for violence. Defendant also asks us to review the trial courts ruling under Pitchess v. Superior Court (1974) 11 Cal.3d 531. For the reasons stated below, Court affirm the judgment, finding no error.

Both parties in this marital dissolution action appeal from the judgment entered after a trial on issues related to division of property. Andre Willis[1]contends that the family court erred in assigning the community an interest in the parties' residence notwithstanding the quitclaim deed signed by Liliya Willis when escrow closed on the purchase. Liliya argues that the court abdicated its responsibility to value and divide 98 paintings she had created during the marriage. She further complains that she should have been awarded the entire amount of attorney fees she had requested. Court find no error and will therefore affirm the judgment.

Respondent Patricia Bernardi and the Open Monterey Project (collectively, Bernardi) filed a petition to enforce the California Public Records Act (CPRA) (Gov. Code, 6250 et seq.),[1] in which they sought public records from appellant County of Monterey (the County) relating to a pending subdivision proposal known as the September Ranch project. After more than a year of litigation, the trial court adopted the recommendations of the special master and ordered the County to produce some of the records that the County had previously refused to produce. Thereafter, Bernardi filed a motion for an order awarding attorney fees pursuant to section 6259, subdivision (d), the attorney fees provision of the CPRA. The trial court granted the motion and, in its order of March 29, 2007, awarded Bernardi total attorney fees of $244,287.50. On appeal, the County argues that the trial court abused its discretion in awarding an unreasonable amount of attorney fees to Bernardi. According to the County, the attorney fees award is excessive because it is not commensurate with Bernardis partial success in obtaining public records. For the reasons stated below, Court conclude that the trial court did not abuse its discretion and therefore Court affirm the order awarding attorney fees.

Defendant Vincent Patrick Gaeta pleaded no contest to charges of possession of methamphetamine for sale (Health & Saf. Code, 11378), possession of a short-barreled shotgun (Pen. Code, 12020, subd. (a)(1)), and possession of a firearm by a felon (id. 12021, subd. (a)(1)). He was sentenced pursuant to his plea bargain to two years and eight months in prison. On appeal, defendant challenges only the denial of his motion to suppress evidence under Penal Code section 1538.5. Court affirm.

Defendant Shane Walton appeals from an order revoking probation and committing him to state prison. He contends that that trial court erred when it found that the allegation that he possessed a concealed dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4)[1] was true. We agree and remand for resentencing in light of the courts other true findings at the probation revocation hearing. In view of our conclusion, Court do not reach defendants contention that his trial counsel was ineffective for failing to object when the court failed to state its reasons for imposing a prison sentence rather than reinstating probation.

Plaintiff Rodney W. Jessen and defendant Oie Lian Yeh entered into an agreement settling Jessens personal injury claim against Yeh for $25,000. Shortly thereafter, Jessen attempted to rescind the agreement when he learned that he did not also have a claim against his mothers underinsured motorist policy. Yeh refused to accept the rescission and filed a motion to enforce the settlement. (Code Civ. Proc., 664.6.) Jessen opposed, raising his mistake of fact as a defense. The trial court rejected the defense and enforced the agreement. Jessen argues on appeal that, given the undisputed facts of this case, he is entitled to rescission as a matter of law. Court disagree and affirm the judgment.