CA Unpub Decisions

On December 1, 2006, the Kern County District Attorney filed an information in superior court charging appellant Christopher David Kaplan as follows: Counts 1 and 2assault with a deadly weapon, a serious felony (Pen. Code, 245, subd. (a)(1), 1192.7, subd. (c)) with three prior prison terms ( 667.5, subd. (b)); Counts 3 and 4grand theft ( 487, subd. (a)) with four prior prison terms ( 667.5, subd. (b));
Count 6receiving a stolen vehicle ( 496d) with three prior prison terms ( 667.5, subd. (b)); and
Count 7unlawful possession of ammunition by an ex-felon ( 12316, subd. (b)(1)) with three prior prison terms ( 667.5, subd. (b)). On December 8, 2006, appellant declined a plea bargain entailing a prison term of six years four months. On December 18, 2006, the court struck the second prior prison term allegation as to counts 1, 2, 3, 4, 6, and 7 and bifurcated trial of the special allegations. Jury trial commenced the same day. On December 21, 2006, the jury returned verdicts finding appellant not guilty of counts 1, 2, 4, and 7, guilty of count 6 as charged, and guilty of attempted grand theft ( 487, subd. (a), 664) a lesser included offense of that charged in count 3. The court subsequently found the remaining prior prison term allegations related to counts 3 and 6 to be true. On January 24, 2007, the court denied appellant probation and sentenced him to a total term of four years four months in state prison. The court imposed the middle term of two years on count 6 and two consecutive one-year terms for the prior prison term enhancements. The court imposed the term of four months (one-third of the middle term) on count 3. The court imposed a $200 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and awarded 181 days of custody credits. The court also ordered appellant to pay a $20 court security fee as to each substantive count ( 1465.8). On the same date, appellant filed a timely notice of appeal.

Plaintiff Craig Harrison appeals the trial courts grant of summary judgment in his lawsuit against The Capital Group Companies (CGC), Susan Sherwood and Florence Mansfield (collectively defendants). He claims that triable issues of fact existed as to whether he was sexually harassed, but admits he did not allege any conduct of a sexual nature. He also claims the trial court abused its discretion in denying his motion to amend his complaint to add a defamation action. Because we find his arguments to be without merit, Court affirm.

The juvenile court did not abuse its discretion when it denied a hearing and relative placement under Welfare and Institutions Code section 361.3. (All statutory references are to the Welfare and Institutions Code.) Court affirm.

Defendant Norris was first committed to Atascadero State Hospital as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) in 2000.[1] (Welf. & Inst. Code, 6600 et seq.)[2] Subsequent petitions to extend defendants commitment period were filed, and the two most recent ones were consolidated for trial. Following the jurys verdict finding that defendant is an SVP, the court ordered his commitment extended for two consecutive two-year periods, from October 19, 2004, to October 19, 2008. Defendant appeals from that order. On appeal he contends that the court misinstructed the jury and violated his due process rights. Court affirm.

In this proceeding involving the dissolution of a lengthy marriage, the husband, Lewis G. Creary, petitioner below (Lewis), and the wife, Eleanor G. Creary, respondent below (Eleanor),[1] entered into a stipulation for entry of judgment as to status only in December 2004. Thereafter, the parties attended a settlement conference in September 2005 in which they agreed, inter alia, that Lewis would pay Eleanor $260,000 for her interest in the community residence. There was a recital on the record at the conclusion of the settlement conference, agreed to by the parties, that [a]ll other assets . . . will be awarded to the party who has that asset in [his or her] current possession. Lewiss attorney thereafter prepared a draft stipulated judgment purporting to confirm the parties agreement concerning the division of assets. Eleanors counsel objected to the draft, contending that it failed to divide the parties community property interests in Hewlett Packard (HP) and Agilent Technologies (Agilent) stock and certain HP stock options. (Hereafter, the HP stock and stock options and Agilent stock are sometimes collectively referred to as the HP and Agilent stockholdings.) Her counsel asserted that this property had an aggregate value of more than $425,000 and requested that the proposed stipulated judgment be modified to reflect an equal division of these assets. Lewiss attorney rejected this modification request.
The order denying both Eleanors motion to set aside judgment pursuant to Code of Civil Procedure section 473(b) and her alternative motion to adjudicate omitted marital assets under Family Code section 2556 is affirmed.

Petitioner Robert Welch (Robert) and real party in interest Jeanne Welch (Jeanne)[1] are former spouses. Years after their divorce, they stipulated to modify their marital settlement agreement (MSA), which had been incorporated into their judgment of dissolution. Although they intended to reduce their new agreement to a judgment or order, that was not done. Years later, Jeanne alleged that Robert had misrepresented his income to her when they entered into the new agreement and filed a civil action against him for fraud and negligent misrepresentation. After several rounds of pleadings, Robert demurred to the third amended complaint, arguing that Jeanne could not maintain a cause of action against him in tort because the alleged misrepresentations were made in connection with a family law proceeding. The trial court overruled the demurrer, reasoning that Jeanne could pursue her tort action because the statutory remedies in the Family Code, which would otherwise bar the action, did not apply because the parties new agreement had not been incorporated into a judgment or order. We issued an order to show cause and have determined that the writ should be granted. When the substance of the claims is examined, this matter properly belongs in family court, not a civil courtroom. We shall therefore issue a peremptory writ of mandate directing respondent court: (1) to vacate its order overruling Roberts demurrer and to enter a new order sustaining the demurrer with leave to amend to permit Jeanne to state whatever causes of action she may have, other than an action in tort, to vacate the new agreement and (2) to transfer this action to the family court and consolidate it with the family law action (case number 1-91-FL-014736). Court also vacate the temporary stay order issued in June 2007.

Odis Ray Johnson, defendant and appellant (hereafter defendant), appeals from the judgment entered after a jury found him guilty of inflicting cruel and inhumane corporal punishment on 19-month-old V. in violation of Penal Code section 273d, subdivision (d) (count 1), willfully harming a child in violation of section 273a, subdivision (a) (count 2), and further found true the allegations under section 12022.7 in connection with both counts that defendant personally inflicted great bodily injury on V. After denying defendants motion for new trial, the trial court sentenced him to serve a total of nine years in state prison, comprised of the midterm of four years on count 1, plus an additional five years on the great bodily injury enhancement. The judgment is affirmed and defendants petition for writ of habeas corpus is denied.

Defendant, minor Christopher R. (C.R.), appeals (1) the order of the juvenile court requiring him to register as a sex offender under Penal Code section 290; and in supplemental briefing, (2) his commitment to DJJ. Court affirm the commitment order but reverse the order requiring sex offender registration.

Defendant Alberto Gonzalez appeals from a plea of guilty to resisting an officer and driving under the influence of alcohol. He claims he received ineffective assistance of counsel (1) in negotiating the plea agreement; (2) in pursuing a motion to withdraw his guilty plea; and (3) in perfecting his appeal to the trial courts denial of his motion to withdraw.

This appeal arises out of a dispute between the producer of a road show production of the musical, Mamma Mia!, and a theater production company which staged and presented eight performances of the musical at a local venue. The producer, claiming additional compensation is due under its contract with the production company and insisting that the dispute is subject to arbitration pursuant to the contracts arbitration clause, petitioned the superior court for an order compelling arbitration. Finding there was a dispute as to the existence of a contract and thus no definitive agreement to arbitrate, the court denied the petition. Court affirm.

On March 15, 2007, the San Bernardino County District Attorney filed a two-count information against defendant. The information charged defendant with a violation of Vehicle Code section 10851, subdivision (a) (count 1), and a violation of Penal Code section 496d, subdivision (a) (count 2). The information also charged defendant with special allegations filed pursuant to Penal Code sections 666.5 and 667.5, subdivision (b). On April 27, 2007, pursuant to Penal Code section 1192.5, defendant, represented by counsel, pled guilty to unlawful taking of a car (count 1) and admitted three prison priors in exchange for a negotiated disposition and dismissal of the other charges.Defendant was correctly awarded 254 days of presentence credits but the abstract of judgment only reflects 250 days of presentence credits. The trial court is directed to correct the abstract of judgment and further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

On March 29, 2007, the San Bernardino County District Attorney filed a one-count information against defendant. The information charged that defendant made criminal threats in violation of Penal Code section 422. Defendant pled not guilty.
On April 5, 2007, defendant, represented by counsel, withdrew his plea and pled guilty to the charged offense. ( 1192.5.) Defendant also agreed to an upper term of three years. In accordance with the negotiated disposition, the district attorney agreed not to file a prior strike allegation. Thereafter, the trial court imposed the upper term of three years. The court also imposed a restitution fine of $200 pursuant to section 1202.4 and a stayed restitution fine of $200 pursuant to section 1202.45.

This is an appeal by Cinthia S. (hereafter mother) from the trial courts orders under Welfare and Institutions Code section 366.26[1]terminating her parental rights with respect to two-year-old S. and one-year-old M. Because mothers only claim on appeal concerns the adequacy of notice that San Bernardino County Department of Childrens Services (DCS) gave under the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA), we will not recount the factual or procedural details of the underlying dependency. Instead, we note only that the children were both removed from mothers custody, and DCS filed section 300 petitions with respect to each child after then one-month-old M. suffered a fractured skull, a fractured femur, and a fractured clavicle while in the care of mother.
Mother contends that the order terminating her parental rights must be reversed because the notice DCS gave to the Pawnee tribe after mother indicated that she might have Pawnee heritage did not include information about the childrens maternal great-grandparents and also did not include complete information about their maternal grandfather. Court conclude that mothers claim lacks merit for reasons we now explain. Therefore Court affirm the order terminating mothers parental rights.

This appeal arises out of two cases in Riverside County Superior Court, INF047099 and INF054080. Although separate, the two cases are chronologically and factually intertwined.
In case No. INF047099, a felony complaint was filed against defendant on May 5, 2004, charging him with violating Health and Safety Code section 11350, subdivision (a). The defendant was found to be eligible for a substance abuse program pursuant to Penal Code[1]section 1210.1. On May 26, 2004, defendant, represented by counsel, pled guilty to the charge. In exchange for his guilty plea, it was agreed that he would receive probation under certain terms and conditions, including the condition that he participate in and complete a substance abuse program pursuant to section 1210.1 (Prop. 36). Defendant was released on probation. Defendants Proposition 36 probation was later modified to summary probation at his request. Between June 16, 2005, and April 12, 2006, defendant was charged with various violations of his grant of probation. On July 21, 2005, defendant filed a Marsden[2]motion. The court held a hearing on the motion and denied it. Defendants remaining violations of probation that occurred between June 16, 2005, and April 12, 2006, arose out of case No. INF054080. Defendant admitted each of these violations, was given credit for time already served, and was reinstated on probation. The judgment is affirmed.