CA Unpub Decisions

A jury convicted Nolan James Fulcher of possession of cocaine base and possession of cocaine (Health and Saf. Code, 11350, subd. (a); counts 1 and 2) and transportation of cocaine ( 11352, subd. (a); counts 3 and 4). In bifurcated proceedings, he admitted special allegations of three prior convictions, three prior prison terms, and a strike prior. ( 11370.2, subd. (a); Pen. Code, 667.5, subd. (b) and 667, subds. (b)-(i).) The trial court sentenced him to 10 years in prison as follows: the 4-year middle term for count four; 3 years for the section 11370.2, subd. (a) enhancement; and 3 years for the prior prison term enhancement. The remaining terms were stayed under Penal Code section 654. Fulcher contends the trial court erred in: (1) permitting the People to file a second amended information adding the transportation charges, and denying his motion to continue the trial and (2) denying his motion for acquittal on the transportation charges. Court affirm.

Banc of America Investment Services, Inc. (BAIS) and David Ohanian appeal from (1) judgments entered in favor of Michael Parziale, Daniel Morilak and Richard Ina (together, plaintiffs) on an order confirming an arbitration award; and (2) the trial court's order denying BAIS and Ohanian's motion for a preliminary injunction. Plaintiffs cross-appeal from the trial court's denial of their request for an award of attorney fees incurred in connection with their opposition to BAIS and Ohanian's petition to vacate the arbitration award. Plaintiffs also move to dismiss both appeals filed by BAIS and Ohanian.
As Court explain, Court conclude that we lack jurisdiction over both appeals filed by BAIS and Ohanian and over the cross-appeal, and Court accordingly dismiss all of the pending appeals. Court also deny plaintiffs' request that BAIS and Ohanian be ordered to pay the attorney fees incurred by plaintiffs in connection with their motion to dismiss.

Angel Caro (Father) appeals from a judgment of dissolution of his marriage with Sophia Ramos (Mother). He challenges the court's jurisdiction and venue, and contends the court abused its discretion in awarding sole legal and physical custody of his two sons to Mother, and in ordering his visits to be supervised. Court dismiss the appeal because it is untimely.

James B. appeals judgments terminating his parental rights to two of his children, Michael B. and M.B. He contends insufficient evidence supported the juvenile court's finding Michael and M.B. were adoptable, and the court erred by not finding under Welfare and Institutions Code section 366.26,[1]subdivision (c)(3)[2]that they were difficult to place for adoption. He also asserts the court reversibly erred by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (a)(1)(A) and the sibling relationship exception of section 366.26, subdivision (c)(1)(E). Finally, James asserts the court prejudicially erred by not inquiring sua sponte why Michael did not attend the section 366.26 hearing and by depriving James of the opportunity to be present. Court affirm the judgments.

A jury convicted Jose A. Sorto of possession of metal knuckles, a felony (Pen. Code, 12020, subd. (a)(1)); possession of methamphetamine, a felony (Health & Saf. Code, 11377, subd. (a)), being under the influence of methamphetamine (Health & Saf. Code, 11150, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, 11364). Sorto, who earlier had pled guilty to disobeying a court order relating to gang activity (Pen. Code, 166, subd. (a)(4)), admitted he had a prior serious/violent felony or strike conviction (Pen. Code, 667, subds. (b)-(i)) and had served a prior prison term (Pen. Code, 667.5, subd. (b)). The trial court sentenced Sorto to an aggregate term of 32 months in prison after reducing the methamphetamine possession to a misdemeanor and striking the prior prison term enhancement.
The judgment is affirmed.

Hartford Fire Insurance Co. (Hartford) filed the present subrogation action against PACCAR Inc. (PACCAR or Peterbilt) and Rush Truck Centers of California, Inc. (Rush) (collectively defendants). Hartford seeks to recover approximately $156,518.40, or the amount paid its insureds, Dix Leasing (Dix) and All American Asphalt (All American), for property losses they incurred as a result of an August 2002 fire that severely damaged two Peterbilt trucks. PACCAR manufactured the trucks and Rush, a retail seller, sold the trucks to Dix. At the time of the fire, All American was leasing the trucks from Dix. In its complaint, Hartford claims that a manufacturing or design defect caused the fire.
Defendants moved for summary judgment. They claimed that on November 22, 2002, after Hartford indemnified its insureds but before Hartford notified defendants of its subrogation claim, Dix settled with defendants in exchange for PACCARs payment of $85,000 and Dixs release of defendants from any and all claims related to the fire. The trial court granted the motion, concluding that (1) Dixs release of any and all claims barred Hartfords subrogation claim, and (2) there was no triable issue of material fact concerning whether defendants knew of Hartfords subrogation claim at the time they entered into the settlement agreement with Dix and obtained Dixs release of any and all claims related to the fire. Accordingly, the trial court entered judgment in favor of defendants on Hartfords complaint.
Hartford appeals and we affirm. On independent review, Court agree with the trial court that Dixs release of defendants from any and all claims relating to the fire bars Hartfords subrogation claim. Furthermore, it is undisputed that Hartford did not notify defendants of its subrogation claim or that it had paid its insureds for any losses to the fire until March 2003, several months after defendants and Dix signed the settlement agreement and release on November 22, 2002. Finally, there is no triable issue of fact concerning whether defendants knew of Hartfords subrogation claim, or that Hartford had indemnified its insureds for any losses resulting from the fire, at the time defendants and Dix signed the settlement agreement and release. The judgment is affirmed.

Defendant, represented by counsel, pled no contest to one count of committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a)); in return, the remaining allegations, including a prior strike, and a companion case were dismissed, and defendant was promised a stipulated prison term of six years in state prison. Immediately thereafter, defendant was sentenced in accordance with the plea agreement. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received. The judgment is affirmed.

A.C., mother, appeals from a juvenile court judgment terminating her parental rights respecting her five year old son, L.V. She contends the lower court erred in finding there was no beneficial parent-child relationship sufficient to overcome a finding that L.V. was adoptable. Court affirm.

On September 9, 2005, an information was filed in the Superior Court of Tulare County charging appellant Robert Mendoza and codefendant Eusevio Campos, Jr. with counts I, III, and IV, second degree robbery (Pen. Code,[1] 211), with enhancements as to both appellant and Campos that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)). As to count I, there were enhancements as to both appellant and Campos for personal use of a firearm ( 12022.53, subd. (b)), and that a principal personally used a firearm in a gang case ( 12022.53, subds. (b), (e)(1)). As to counts III and IV, there were enhancements as to appellant for personal use of a firearm ( 12022.53, subd. (b)), and as to Campos for a principal personally using a firearm in a gang case ( 12022.53, subds. (b), (e)(1)). As to count IV, it was further alleged that Campos personally used a deadly weapon, a knife ( 12022, subd. (b)(1)). Appellant was separately charged with counts II, V, and VI, second degree robbery, with enhancements for personal use of a firearm ( 12022.53, subd. (b)), and committing the offense for the benefit of a criminal street gang. As to all counts, it was alleged appellant served one prior prison term ( 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations. Campos entered into a plea agreement prior to trial. The judgment is affirmed.

Appellants attempt to rob a bank in Exeter resulted in an 11-hour standoff with police, during which appellant held hostages inside the bank. The standoff ended when a SWAT team rushed inside the bank and apprehended appellant. A jury found appellant guilty of five counts of second degree robbery (Pen. Code, 211; counts 1 through 5),[1]five counts of false imprisonment of a hostage ( 210.5; counts 6 through 10), two counts of false imprisonment ( 236; counts 11 & 12), and one count of commercial burglary ( 459; count 13). Allegations of five section 1170.12, subdivision (c)(2) prior felony convictions (commonly called strikes) and of five prior serious felony convictions ( 667, subd. (a)(1)) were tried separately to the court after conclusion of the jury trial. The court found the prior conviction allegations to be true. All five of those prior felony convictions were for armed bank robbery (18 U.S.C. 2113). The court sentenced appellant as follows: 25 years to life on the count 1 robbery conviction, enhanced by five consecutive 5-year section 667, subdivision (a) enhancements for each of appellants five prior felony convictions; concurrent terms of 25 years to life on all remaining counts except for the commercial burglary (counts 2 through 12), with five, 5-year section 667, subdivision (a) enhancements imposed and stayed on all of these counts; and 25 years to life on the commercial burglary (count 13), imposed and stayed pursuant to section 654, with five 5-year section 667, subdivision (a) enhancements also imposed and stayed pursuant to section 654. The total term imposed was 50 years to life. The judgment is affirmed.

Appellant Marco Malagon molested an 11 year old girl in 1999. He fled the state and was not arrested until 2006. Appellant was then charged with one count of lewd acts on a child (Pen. Code, 288, subd. (a)), but in a plea bargain the prosecutor amended the complaint to include a second count of sexual battery ( 243.4, subd. (a)), and in return for a stipulated sentence of four years in prison, appellant pled guilty to sexual battery. At the sentencing hearing in 2007, in addition to imposing the agreed four-year prison term, the trial court made the following orders: (1) appellant was to have no contact with the victim pursuant to section 1202.05, and (2) appellant was to be released to the U.S. Bureau of Immigration and Customs Enforcement Office (ICE) upon completion of his prison commitment. Appellant appealed, arguing the trial court exceeded its authority in issuing the latter two orders. Court agree and shall vacate the disputed orders but otherwise affirm the judgment.

In April 2007, the trial court terminated appellants parental rights to her three children. (Welf. & Inst. Code, 366.26.)[1] Assuming the childrens prospective adoptive parents were agreeable to ongoing visitation, the court simultaneously continued weekly visitation between the children, the mother, and the maternal grandfather. At a June 2007 hearing, the court granted a petition ( 388) filed by respondent Madera County Department of Social Services/Child Welfare Services (department) to reduce those visits to once a month. Appellant appeals claiming the court abused its discretion. In appellants view, the court should have denied the petition and ordered the parties into mediation to develop a postadoption contact agreement. On review, Court affirm.

The issue in this appeal is whether the trial court erred in denying Hollins Schechters (Hollins) motion to disqualify the law office of Day Eisenberg from representing two of Hollinss former clients. Court find no error and affirm.

The petition under Welfare and Institutions Code section 300, subdivisions (b) and (j), alleged failure to protect and abuse of a sibling. The mother argues the petition lacked sufficient facts to support jurisdiction and that substantial evidence did not support the courts dispositional orders. Court disagree and affirm.