CA Unpub Decisions

Did the trial court abuse its discretion in denying a motion for leave to file a second amended complaint that would have raised causes of action for violation of the Consumers Legal Remedies Act (Civ. Code, 1750 et seq.) (CLRA), and for declaratory relief? court conclude it did not, as explained ante, and Court therefore affirm.

Officers executed a search warrant at the home of defendant Jebediah Lilburn and his wife after learning from an informant that the two were selling marijuana and prescription medication from their home. The warrant yielded drugs and weapons. Thereafter, defendant pled guilty to one count each of possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)), child endangerment (Pen. Code, 273a, subd. (a)), and possessing marijuana for sale (Health & Saf. Code, 11359), in exchange for the dismissal of two other counts and a grant of probation.
Court dispense in this opinion with a recitation of the facts related to the offenses because the record on appeal contains neither a preliminary hearing transcript nor a probation report.

After two petitions were filed in juvenile court charging him with unlawful driving or taking of a vehicle, purchasing or receiving a stolen vehicle, and driving without a valid license, Alvin T., then a minor, filed a motion to suppress evidence on the ground that a police officers stop of his vehicle violated his Fourth Amendment rights. The juvenile court granted the motion to suppress and dismissed the petitions.
The People appeal, contending that the stop of the minors car was justified because of his suspected truancy violation. Court agree with the People and shall reverse the order dismissing the petitions.

including that he serve 180 days in county jail.

In April 2003, defendant admitted violating the terms of his probation. The trial court revoked then reinstated probation on conditions including that defendant serve another 60 days in county jail. In May 2003, defendant again violated probation. The trial court revoked probation, sentenced defendant to three years in state prison for the drug conviction, suspended execution of sentence, and reinstated probation on conditions including that defendant serve 30 days in jail consecutively to the sentence he was already serving for the probation violation in April 2003. In August 2003, defendant violated his probation yet again. Before sentencing, he voluntarily entered a drug rehabilitation program. The trial court postponed sentencing to allow defendant to complete the 12-month program. When defendant completed the program, the court reinstated probation and extended it for another year.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed

S.J. (grandmother) is the paternal grandmother of R.J. and J.J. (minors), who were adjudicated dependent children of the court. The juvenile court summarily denied grandmothers request for de facto parent status. Grandmother appeals, contending (1) the juvenile court erred in denying her request without affording her an evidentiary hearing, and (2) the error violated her right to procedural due process under the Fourteenth Amendment to the United States Constitution. (Welf. & Inst. Code, 395.) Finding no error, Court affirm.

Defendant pled no contest to a robbery charge and was sentenced to state prison for the robbery charge, as well as for a previous conviction for sexual battery on a restrained person. On appeal, defendant asserts that the abstract of judgment must be amended to reflect (1) the presentence custody credits, as found by the trial court, and (2) the specific elements of a fine imposed. We agree and direct the trial court to amend the abstract of judgment accordingly. Court also direct the trial court to amend the abstract of judgment to reflect the proper Penal Code section for the previous sexual battery conviction.

A jury found Micah Armand Harris guilty of torture (Pen. Code, 206) (count 1); mayhem ( 203) (count 2); assault with an intent to commit certain specified sexual offenses ( 220) (count 3); and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) (count 5). With respect to count 5, the jury found that Harris personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The jury acquitted Harris of attempted forcible rape ( 261, subd. (a)(2)). On count 1, the trial court sentenced Harris to life in prison with the possibility of parole. On count 3, the court sentenced Harris to a term of four years in prison, to be served concurrently with the sentence on count 1. The court stayed imposition of sentence on counts 2 and 5, and imposition of the great bodily injury enhancement on count 5, pursuant to section 654.
On appeal, Harris claims there is insufficient evidence to support his conviction for torture. Harris also claims the trial court erred in admitting evidence of his commission of two uncharged sexual offenses, and the court violated his constitutional right to confrontation by restricting his cross-examination of the victim of one of the uncharged sexual offenses. He also claims the trial court erred in denying him probation. Court affirm the judgment

Douglas Beach Carter was convicted of arson within the meaning of Penal Code[1]section 451, subdivision (c), and admitted three "strike priors" within the meaning of section 667, subdivisions (b) through (i), and one prior within the meaning of section 667, subdivision (a)(1). Carter was sentenced to a prison term of 30 years to life. He appeals, arguing the trial court erred in denying his motion to exclude evidence based on a claimed unlawful detention and arrest, the evidence of arson was insufficient, the prosecutor engaged in misconduct, the court erred in admitting evidence concerning a prior offense and the trial court abused its discretion in refusing to strike any of his strike priors.

Jacob Colby Rendon was convicted of assault with force likely to produce great bodily injury and battery causing serious injury. As to the assault charge, it was found true he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). Rendon was granted probation with a condition he serve one year in jail. He appeals, arguing the evidence was insufficient to support the battery conviction and the true finding on the great bodily injury allegation and the trial court erred in the manner it instructed on battery.

A jury convicted defendant Michael Olson of petty theft with a prior qualifying conviction (Pen. Code, 484, 666),[1]possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and possession of narcotics paraphernalia (Health & Saf. Code, 11364). The trial court stayed imposition of sentence and placed Olson on five years' formal probation. On appeal, Olson argues (1) the evidence was insufficient to support the possession of methamphetamine conviction; (2) the court erred by excluding evidence that, when Olson was arrested in a van for possession of methamphetamine, his passenger had a prior drug conviction; and (3) the court erred by excluding evidence supporting Olson's belief he had permission to take the property for which he was convicted of theft.Court affirmed.

In August 2006 Andrea Jeanne Bertaux pleaded guilty to two counts of grand theft, one count of fraudulent use of another's access card and one count of burglary. The court sentenced Bertaux to five years' probation, with the condition that she serve 365 days in jail. The court ordered that she pay restitution in the amount of $40,254.11.

Bertaux filed a motion disputing the amount of the restitution order. A restitution hearing was held, after which the court increased the restitution order to $75,935.67.

On appeal, Bertaux asserts the court erred in ordering restitution in the amount of $75,935.67 because (1) there was no evidence connecting her to the theft of the victim's vehicle; and (2) the victim did not suffer any lost work product because he took paid leave. Court affirm.

John Blair was convicted of second degree murder, and was sentenced to 17 years to life in 1983. Twenty-three years later, the Board of Parole Hearings (Board) found Blair suitable for release on parole. Governor Arnold Schwarzenegger reversed this decision, finding Blair's release would pose an unreasonable risk of danger to society. Blair petitions for a writ of habeas corpus challenging the Governor's reversal. Applying the review standards set forth in In re Dannenberg (2005) 34 Cal.4th 1061 and In re Rosenkrantz (2002) 29 Cal.4th 616, we conclude there was some evidence supporting the Governor's decision. Court therefore deny the petition.

Regina A. and Andres A., the parents of Adrian A. and Andrew A., appeal the judgments terminating their parental rights under Welfare and Institutions Code[1]section 366.26. Regina's major contention is the juvenile court erred by allowing Adrian, who was then 11 years old, to testify by telephone at the section 366.26 hearing. Regina also contends the court should have granted her request to continue the hearing. Additionally, Regina claims the court erred by not finding the parent-child beneficial relationship exception to adoption. Andres contends there was insufficient evidence supporting the court's finding that Adrian and Andrew were likely to be adopted in a reasonable time. Andres, who is in prison, also contends his parental rights should not have been terminated because he did not receive court-ordered visitation.

Tonya Cohen appeals an order reducing her former husband Glenn Nusbaum's child support obligation to $1,617 per month. Specifically, Tonya[1]challenges the court's finding that income from the sale of Glenn's chiropractic business should not be considered in determining the amount of his child support obligation, asserting (1) the court was barred by the doctrine of res judicata from making this finding based upon a prior stipulation of the parties that money from the sale of his chiropractic business was income for purposes of determining his child support obligation; and (2) the court abused its discretion in excluding that money in determining Glenn's child support obligation. Glenn, in addition to opposing this appeal on the merits, asserts the res judicata issue has been forfeited because Tonya failed to raise it below.
We conclude Tonya has not forfeited the right to assert the court's modification of Glenn's child support obligation is barred by the doctrine of res judicata. However, we also conclude (1) res judicata does not apply because there was no final judgment in this matter; and (2) the court did not abuse its discretion by excluding income from the sale of Glenn's old chiropractic practice as he reinvested that money in a new business. Accordingly, Court affirm the court's order modifying Glenn's child support obligation.