CA Unpub Decisions

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) (rule 8.452) to vacate the orders of the juvenile court issued at the 18-month review hearing, terminating petitioners reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to his daughter L. and son R. Court conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court will dismiss the petition as facially inadequate.

Following a bench trial, the trial court entered a judgment for over $500,000 in favor of plaintiffs and cross-defendants Chad S. Pearson and his sister Pama L. Bangeman. Defendants and cross-complainants Greg Curfman and Dana Judd (defendants) appeal, arguing, among other things, the court erred in determining there was no enforceable agreement between the parties to sell a hardware store to defendants. Court disagree and find no merit to defendants remaining contentions, except for the award of $875.00 relating to court reporter fees, which shall be stricken. In all other respects, the judgment is affirmed.

Travis Christopher Boyette was convicted of possession of cocaine base for sale. He contends the trial courts jury instructions should have included a specific admonition that witnesses conduct could reflect on their credibility. Boyette argues that such an admonition was relevant to this case because on the day before trial, the two police officers involved in his arrest discussed the facts of the case via telephone, and, as a consequence, one of them changed his testimony from that which he had given at the preliminary hearing. Boyette asserts that by failing to instruct the jury it could consider this telephone conversation as evidence bearing upon the officers credibility, the court violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution. Court affirm the judgment.

Plaintiffs Leslie C. Fields, Misty Mountain Ranch for Children with Cancer, and Wylvale Limited Partnership (collectively plaintiffs) appeal from the trial courts order granting defendant OCRA (Isle of Man) LIMITEDs (OCRA) motion to quash service of summons pursuant to Code of Civil Procedure section 418.10. Court affirm.

A jury convicted Miguel Sandoval of willful infliction of corporal injury resulting in a traumatic condition (Pen. Code, 273.5, subd. (a))[1] and violation of a protective order ( 166, subd. (c)(1)). The trial court found he had suffered a prior juvenile adjudication for robbery, a violent felony qualifying as a strike under the Three Strikes law ( 667, subds. (d) & (e)(1); 1170.12, subds. (b) & (c)(1)), and had served a prison term for assault with a deadly weapon, which rendered defendant eligible for a one-year enhancement of his ultimate sentence ( 667.5, subd. (b)). Defendant contends the court violated his constitutional rights by admitting evidence of prior acts of domestic violence. He also argues his trial lawyers stipulation that the court need not report the courts oral instructions deprived his appellate counsel of effectively representing him on appeal, and the courts use of his prior juvenile adjudication to double his sentence under the Three Strikes law violated his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. As Court explain below, Court affirm the judgment.

In 1990, Thomas and Pamela Giffin terminated their 17-year marriage. Eleven years later, they agreed to a division of the community interest in Thomass Orange County Employees Retirement System (OCERS) account. The 2001 order stated both parties would receive their benefits for their lifetimes under the Option 4 survivor benefit election. Five years later, Thomas[1]retired and was unhappy to learn there was a cost associated with choosing Option 4. He sought judicial intervention to require Pamela to pay not just an equal share of the cost, but rather the entire cost. The court refused to consider the matter, stating it lacked jurisdiction to make substantive changes to the 2001 postjudgment order. We affirm the order. Thomass motion for judicial notice is denied. Pamelas motion to strike Thomass subpoena duces tecum on appeal is granted. Pamelas motion to strike the appendix from the opening brief is granted, but her motion to strike the brief is denied. Court grant her motion for $15,000 in sanctions, representing the amount she spent on attorney fees defending this frivolous appeal.

Nancy Thuy Nguyen and Ngoc Dao (referred to collectively as Homeowners) were sued for breach of contract by their former contractor, Pro Construction Company (Pro Construction). At trial, the Homeowners contended that AV Design & Construction, Inc. (AV Design) was also a party to the construction contract and the action could not proceed without it being joined. The trial court found AV Design was not a party to the contract and entered judgment against the Homeowners. On appeal, the Homeowners contend the trial court should have dismissed the action against it because it should have found that AV Design (1) was a party to the contract, (2) was an indispensable party to the action, and (3) was unable to maintain the action because its corporate powers were suspended at the time the contract was executed. Court find there is substantial evidence to support the trial courts conclusion that AV Design was not a party to the contract; accordingly, Court affirm.

A jury convicted Robert Erin Darling of driving recklessly while evading police, possession of a firearm by a felon, residential burglary, three counts of false imprisonment, two counts of cutting a telephone line, and kidnapping. The jury found defendant personally used a knife during the burglary and the kidnapping.
In this appeal, defendant reasserts his claims the trial court abused its discretion in refusing to dismiss or strike a strike and violated due process and the Sixth Amendment by making the factual determinations that resulted in consecutive sentencing. He acknowledges we rejected the same or similar claims in the earlier appeals but raises them to preserve his rights in any future legal proceedings.

Martin O. (father) petitioned under Welfare and Institutions Code section 388[1] to have his children, Benjamin (now age four) and Sandra (now age three), returned to his care. The court denied his petition. On appeal father contends it was in the childrens best interests to be returned to [his] care as the issue of drug and alcohol abuse had been resolved and it was apparent the children and father shared a parent/child bond. Court disagree and affirm the judgment.

A modification decision.

A jury convicted defendant Jose Reyes Guerra of one count of assault on a police officer with a deadly weapon (Pen. Code,[1] 245, subd. (c), count 1), one count of exhibiting a weapon to a police officer with the intent to resist arrest ( 417.8, count 2), one count of inflicting corporal injury on a spouse ( 273.5, subd. (a), count 3), two counts of making criminal threats ( 422, counts 4 and 5), two counts of battery ( 242, 243, subd. (a), counts 7 and 8), and one count of first degree burglary ( 459, 460, count 9). The jury acquitted defendant of a third count of making criminal threats ( 422, count 6). The jury found true enhancement allegations that defendant personally used a deadly and dangerous weapon ( 12022, subd. (b)(1)) during four of the counts, including the criminal threats. In a bifurcated proceeding, defendant admitted that he had two prior serious felony convictions ( 667, subd. (a)), two prior strike convictions ( 667, subds. (b)-(i), 1170.12) within the meaning of the Three Strikes law, and had served two prior prison terms ( 667.5, subd. (b)). The court sentenced defendant to 75 years to life consecutive to a 20-year term.[2]
On appeal, defendant challenges his convictions on the criminal threats counts, arguing that there was insufficient evidence that the persons threatened were in sustained fear for their own safety or the safety of their immediate family members, one of the elements required for a conviction under section 422. Court find sufficient evidence to support the jurys implied finding of sustained fear on both counts and affirm the judgment.

Defendant was convicted on five counts and acquitted on one count of pimping an adult prostitute in violation of Penal Code section 266h, subdivision (a).[1] The sole issue raised by him on appeal is whether the trial court properly required him to register as a sex offender. Respondent concedes that defendants offenses did not subject him to the mandatory registration requirements of section 290 and that the present record would not support an order made in the trial courts discretion under section 290.006 (former 290, subd. (a)(2)(E)) (section 290.006). Respondent contends, however, that because no objection to the order was made below, the correct disposition here is to remand to provide an opportunity for the prosecution to establish, if it can, the factual predicate for a discretionary registration order. Defendant counters that the registration provision simply should be stricken from the judgment without further recourse in the prosecutor. Since it appears that respondent has the better argument, Court direct a limited remand.

On November 15, 2006, the Santa Clara County District Attorney filed a third amended information charging defendants Donna Olsen (Olsen), Donald Bryant (Bryant) and Edward Anderson (Anderson) with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1); count one, victim Robert Barnes, count two, victim Scott Harville.)[1] As to Olsen, the information alleged that she had personally used a dangerous and deadly weapon in the commission of counts one and two. ( 667, 1192.7.)[2] In addition, as to count one, the information alleged that Olsen had personally inflicted great bodily injury on victim Robert Barnes. ( 12022.7, subd. (a), 1203, subd. (e)(3).)
Bryant raises five issues on appeal. First, he contends that the court erred in denying his motion for acquittal and the verdicts were unsupported by sufficient evidence. Second, the prosecutor committed misconduct by "falsely telling the jury" that Bryant said " 'I did it.' " Third, the trial court erred when it instructed the jury with CALCRIM 361. Fourth, the cumulative errors at trial deprived him of his constitutional right to a fair trial. Finally, Bryant joins in all arguments raised by Olsen that may accrue to his benefit. We find no merit in any of Bryant's contentions. However, since we find merit in Olsen's contention that this court should strike the no-contact order imposed at sentencing and because the court imposed the same order on Bryant, Court strike the no-contact order as to Bryant. Accordingly, as to Bryant Court modify the judgment and affirm as modified.

Defendant Martin Ortiz Camacho entered a negotiated plea of no contest to stalking in violation of a court order (with use of a knife) and misdemeanor battery. The trial court dismissed several counts consistent with the plea bargain. It then denied probation and sentenced defendant to the middle term of three years for the stalking conviction plus a one-year enhancement for use of the knife. On appeal, defendant contends that the trial court abused its discretion by denying probation in that it relied on improper factors in doing so. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant claims that his plea is invalid because the trial court failed to ascertain that there was a factual basis for it. Court affirm the judgment. Court also dispose of the habeas corpus petition by separate order filed this day.