CA Unpub Decisions

A modification decision.

A jury convicted defendant of two counts of lewd or lascivious acts on a child under age 14 accompanied by force or other coercion (Pen. Code, 288, subd. (b)(1)) and one count of lewd or lascivious acts on a child under age 14 (id., subd. (a)). The victim was defendants next-door neighbor. Defendant was sentenced to nine years in state prison. (The architecture of the sentence will be set forth in our review of defendants third claim, post, at pp. 3-3.)
On appeal, defendant contends that the trial court abused its discretion in denying him a continuance so he could be represented by privately retained counsel rather than his current counsel, the public defender; that the court abused its discretion in allowing the prosecution to introduce certain evidence; that defendant was entitled to have the jury find, using the beyond a reasonable doubt standard, whether for sentencing purposes his crimes occurred on separate occasions; and that the courts order to pay attorney fees must be reversed. Court affirm the judgment with a modification to set aside the award of attorney fees.

Over 20 years after a judgment on reserved issues was entered in her marital dissolution action, appellant Leilani Brewster brought a motion to modify the provision entitling her to a portion of the San Jose Police Department pension payable to her former husband, James Terry. James had died and Brewster sought payment of a portion of the survivors benefits, which had not been addressed in the judgment on reserved issues and were being paid to Joann Terry, Jamess second wife. Respondent San Jose Police and Fire Department Retirement Plan (Plan) filed opposition. The trial court denied the motion to modify the judgment on reserved issues, agreeing with the Plan that the court lacked jurisdiction to modify the judgment on reserved issues because the parties right to retirement benefits had been finally adjudicated and jurisdiction over the retirement benefits had not been expressly reserved.

This appeal arises from a collection action involving the overpayment of pension benefits. After the dissolution of her marriage to James Terry, a retired San Jose police officer, appellant Leilani Brewster received monthly payments of her community share of his pension benefits. When Terry died, Brewster continued to receive monthly payments although the San Jose Police and Fire Department Retirement Plan (Plan) provided that Terrys pension benefits were to cease upon his death. The Plan eventually discovered its error and filed an action against Brewster to collect the overpayments. After a court trial, judgment in favor of the Plan was entered in the amount of $36,494.82. On appeal, Brewster contends that the judgment should be reversed because (1) the evidence established that the Plan should be estopped from collecting the overpayment; (2) the Plan lacks the authority to collect an overpayment from Brewster because she is a third party non-beneficiary; and (3) the Plan has the authority to pay Brewster her share of the survivors benefits that are attributable to the community. For reasons that Court explain, Court find no merit in any of Brewsters contentions and therefore Court affirm the judgment.

Defendant Jose Chavez pleaded nolo contendere (no contest) in 1991 to one count of lewd and lascivious conduct upon a child under the age of 14 (Pen. Code, 288, subd. (a))[1] and was placed on probation. Nearly 16 years later, after satisfying the conditions of probation (including incarceration in county jail), defendant moved to withdraw his plea. He claimed that he did not receive the advisements concerning potential adverse immigration consequences required under section 1016.5 prior to a defendants entry of plea of guilty or no contest. The court denied the motion. Defendant claims on appeal that the court abused its discretion by denying the motion to withdraw his plea. Court reject that assertion and, accordingly, Court affirm.

Jesse G., a prison inmate serving an indeterminate life term, appeals from an order freeing his biological daughter, Danica G., from his custody and control under Family Code section 7800 et seq.[1] Respondent Joseph A., who is married to Danicas mother, Elizabeth A., moved to dismiss the appeal, contending that the notice of appeal was not timely filed under rule 8.104 of the California Rules of Court governing the time for filing a notice of appeal in a civil case.[2] Although this rule is not applicable because the time for filing a notice of appeal in this case is instead governed by rule 8.400 concerning appeals and writs in juvenile cases, we conclude that under the correct rule, the notice of appeal was not timely filed and appellate jurisdiction is accordingly lacking. Court therefore grant the motion to dismiss.

A modification decision.

Stephen Mann Jeffries (defendant) was convicted of two counts of vehicular manslaughter with gross negligence (Pen. Code, 192, subd. (c)(1))[1] based upon a collision caused by defendant that resulted in the deaths of two people and serious injury to four others. Defendant contends: (1) the convictions for vehicular manslaughter with gross negligence are not supported by substantial evidence; (2) the prosecution committed prejudicial misconduct; (3) the great bodily injury enhancements were barred by section 12022.7, subdivision (g); (4) there was no substantial evidence to support the great bodily injury enhancements; and (5) the jury instructions failed to inform the jurors of the general intent required for the section 12022.7 enhancements. Court find no prejudicial error and affirm the judgment.

Nyah Kep Abrahams was convicted, following a no contest plea, of possession of concentrated cannabis. On appeal, he contends he was unlawfully detained when he consented to a search of his car and, therefore, the trial court erred in denying his motion to suppress evidence seized from the car. He also argues that, in the event he was required to renew his motion to suppress before a different superior court judge, trial counsel was ineffective for failing to so renew the motion. For the reasons discussed in this opinion, Court dismiss the appeal.

These consolidated appeals by defendants Michael and Sheila Robertson (the Robertsons) challenge a June 26, 2006 judgment after court trial, in favor of plaintiff Holly Warneck (A115112), and a December 5, 2006 order awarding Warneck attorney fees and costs (A116506). Court uphold both decisions.

Richard Leroy Wilks (appellant) was convicted, pursuant to a plea agreement, of one count of committing a lewd and lascivious act on a child under the age of 14. On appeal, he contends the court improperly denied his requests (1) for a continuance, and (2) to reinstate him on probation. Court affirm the judgment.

Michelle M. Salazar (plaintiff) appeals the trial courts grant of summary judgment in favor of Livermore Valley Joint Unified School District (defendant) in this premises liability action. On appeal, plaintiff contends that a resolution passed by defendant did not comply with the requirements of Labor Code section 3364.5 and, therefore, appellant, a school volunteer, could not be considered an employee for purposes of workers compensation coverage. Court affirm the judgment.

Margarita V. (Mother) and Francisco H. (Father) challenge an order of the San Mateo County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select permanent plans for Francisco H., Jr., (born October 1997), Maria H. (born January 1999), Rogelio H. (born July 2000), and Karla H. (born June 2005). Court deny their petitions on the merits.

The County of Santa Barbara delineated a 95-acre segment of land as an environmentally-sensitive wetland and incorporated the wetland into a land use plan for the County which had the effect of limiting or preventing farming on the wetland area. A few months thereafter, the family that controlled Adam Bros. Farming, Inc. (ABFI) purchased a parcel of land called Rancho Meadows that included the wetland. The judgment is reversed as to the constitutional claims, but affirmed as to the injunctive and declaratory relief.