CA Unpub Decisions

Defendant Blake Andrew Thornton appeals his conviction for attempted battery in violation of Penal Code sections 664 and 4501.5, and resisting, delaying or obstructing a law enforcement officer in violation of Penal Code section 69. He contends, among other things, that section 654 barred the sentence imposed on count 1. Court agree, and will therefore stay his sentence on that count. Court otherwise affirm the conviction.

In this marital dissolution proceeding, the trial court granted Christopher Siegrists motion to enforce an alleged oral settlement agreement against Nancy Siegrist; it then entered judgment accordingly. Nancy argues that she never actually agreed to the settlement. Court find insufficient evidence that Nancy stipulated to settlement before the court, as Code of Civil Procedure section 664.6 requires. Hence, Court reverse.

Jamie E. (mother) appeals from an order of the juvenile court terminating her parental rights to S.E. and B.B. (the children) under Welfare and Institutions Code section 366.26. Her sole issue on appeal is that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Counsel for the children has joined in mothers argument.
The juvenile court is directed to order the Department to give notice to the BIA in compliance with the ICWA and related federal and state law. Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the children are Indian children.

Defendant Bao Quoc Nguyen challenges his convictions for first degree murder, attempted premeditated murder, and conspiracy to commit murder. Defendant contends: (a) the evidence was insufficient to support his convictions; (b) the trial court erred by not excluding a statement obtained from him in violation of his Miranda rights;[1](c) the prosecutor committed prejudicial misconduct; (d) lengthy preindictment delay violated his right to due process; and (e) the introduction of statements from an alleged coconspirator violated his Sixth Amendment right to confrontation.

We agree the evidence introduced at trial was insufficient to support defendants conviction for first degree murder. Specifically, defendant was convicted under a provocative act murder theory, but the prosecution produced no evidence demonstrating defendant or his accomplices instigated the gunfight with their rivals. Sufficient evidence, however, supported the attempted murder and conspiracy convictions. Moreover, defendant has failed to demonstrate either prosecutorial misconduct or any prejudice resulting from preindictment delay. Finally, the challenged coconspirator statements did not violate defendants right to confrontation because they were not offered for their truth. Accordingly, Court reverse defendants murder conviction, but affirm his convictions for attempted murder and conspiracy to commit murder. Court remand for resentencing.

Defendants Edwin and Beverly Aronson appeal from a judgment awarding their adult daughter, plaintiff Susan Aronson, damages of $61,584 for money she loaned them. Because plaintiffs action was barred by the statute of limitations, Court reverse the judgment.

Defendant Vladimir Ryazanskiy appeals from orders denying his motion for judgment on the pleadings on plaintiff Pacific Trust Escrow, Inc.s complaint for interpleader and granting plaintiffs motion for discharge from the action. Court conclude neither order is appealable and dismiss the appeal.

Petitioner Abraham Hernandez was sentenced to prison following his conviction by a jury of numerous crimes. It is undisputed that at the sentencing hearing petitioner told trial counsel he wanted to appeal, and that his attorney promised he would file a notice of appeal on his behalf. Although trial counsel prepared a notice of appeal, one was never filed and trial counsel does not know why. A petition for relief for failure to file a timely notice of appeal was quickly filed by Appellate Defenders, Inc. (See In re Benoit (1973) 10 Cal.3d 72.)
The Attorney General was served with a copy of the petition. He advises us he does not oppose the relief requested and thus relief may be granted without the filing of an order to show cause. Good cause appearing, the petition is granted without the necessity of the filing of an order to show cause.

The California Supreme Court has reversed this courts decision in this case and remanded the matter for us to remand the case to the trial court with specific directions. Court comply.

Appellants David Bennion and Constance Bennion brought an action for a property tax refund. Following a motion for summary judgment, the trial court entered judgment in favor of respondent County of Santa Clara. We conclude that Revenue and Taxation Code section 69.5 does not authorize appellants to transfer the base year value of their original property to a partial interest in their replacement dwelling. Accordingly, Court affirm the judgment.

Defendant Doris Katzen appeals from a judgment directing her to permit plaintiff Lindsay Connor to restore a ditch on Katzens property at Katzens expense and awarding Connor $32,805, including $10,000 in compensatory damages for emotional distress. Court affirm the judgment.

Plaintiff Eugene Forte filed an action against Monterey Superior Court Judge Robert OFarrell and others. Later, the trial court sustained Judge OFarrells demurrer without leave to amend on the ground of judicial immunity, among others. Forte appeals from the judgment dismissing the complaint as to Judge OFarrell. He claims the court erred in finding that Judge OFarrell was protected from suit by judicial immunity. Court affirm the judgment.

David J. Weiss, et al. (Weiss) filed multiple appeals from a judgment entered in favor of George Pellegrini, et al. (Pellegrini) in this consolidated action. While the appeals were pending in this court, Pellegrini filed a motion to dismiss two of the appeals as untimely and as taken from an unappealable order. Finding appeal H029667 to be taken from an unappealable order, we will dismiss it. Weisss appeal H029988 from the denial, by operation of law, of the judgment notwithstanding the verdict (JNOV) is untimely, so Court dismiss that appeal as well.

Defendant Carlos Humberto Salazar appeals following his guilty plea, asserting the conditions of his probation related to gang association and apparel are impermissibly vague and overbroad.
The probation order is modified to state that defendant: Not possess, wear, use or display any item prohibited by the Probation Officer and known to be associated with membership or affiliation in a gang, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandana, or any article of clothing, hand sign or paraphernalia. As modified, the judgment is affirmed.

Defendant Sammy Pea was convicted after jury trial of three counts of incest (Pen. Code, 285),[1] and after court trial of one count of rape ( 261, subd. (a)(2)). The court sentenced defendant to three years in state prison and imposed various fines and fees, including a $20 court security fee ( 1465.8). On appeal, defendant contends that (1) the court committed prejudicial error in refusing to entertain his peremptory challenge, (2) his conviction for rape and for one count of incest are barred by the statute of limitations, (3) the court erred in refusing to allow impeachment of the victim with the contents of a letter written to her by a former boyfriend, (4) the evidence is insufficient to support the incest convictions, and (5) the imposition of the court security fee violates prohibitions against ex post facto and retroactive application of statutes. Court disagree with these contentions and, therefore, affirm the judgment.