CA Unpub Decisions

A jury convicted defendant Weili Kao of three counts of corporal injury to a child (counts two through four) and one count of willful harm to a child (count five) as the result of defendants physical assault upon her stepdaughter, T.L. (Pen. Code, 273a, subd. (a), 273d, subd. (a); further section references are to the Penal Code.) The jury also found that defendant inflicted great bodily injury in the commission of counts two and three, and that she used a deadly or dangerous weapon in the commission of count four. ( 12022, subd. (b)(1), 12022.7, subds. (a) & (b).) It was unable to reach a verdict on the charge that defendant tortured T.L. within the meaning of section 206.
Defendant was sentenced to an aggregate term of 16 years and 4 months in state prison. On appeal, she challenges the sufficiency of the evidence and raises various sentencing errors.
On October 23, 2006, Court affirmed the judgment.

Plaintiff Karen DuVal appeals from a judgment of nonsuit (Code Civ. Proc., 581c) in favor of defendant Joy Alice Hellman in the trial of plaintiffs personal injury action. Plaintiff contends the trial court erred in (1) denying her motion to submit tardy expert witness information and (2) affirming that decision after granting her motion to reconsider it. Court affirm the judgment.

In a dispute over the purchase of residential real property, plaintiffs/buyers, Roy and Sylvia Thompson (collectively, the Thompsons), dismissed defendants/sellers Ken and Darcy Johnson (collectively, the Johnsons) after reaching a monetary settlement with certain other defendants prior to trial. The trial court found the Johnsons were prevailing parties and granted their motion for attorney fees. On appeal, the Thompsons contend the trial court erred in granting the motion for attorney fees. Court affirm the judgment.

Defendant Jennifer Jenvey admitted cashing three forged checks that had been stolen from mailboxes near her home, but told police that she was trying to earn a little extra money by cleaning the residence of James Luke and Suzanne English, and that she was given the checks by Luke to purchase cleaning supplies. Prior to her arrest, defendant returned to the liquor store and gave the owner back $450 for one of the cashed checks, plus $20 to cover the bank service fee.

Defendant was arrested and charged with three counts of felony forgery. In exchange for a promise of no state prison at the outset and the dismissal of two counts with a Harveywaiver (People v. Harvey (1979) 25 Cal.3d 754), she entered a negotiated plea of no contest to one count of forgery. The entry of plea form that she signed included a Harvey waiver.

At sentencing, the parties submitted the matter on the probation report. The trial court suspended the imposition of sentence and placed defendant on formal probation for three years. Consistent with the recommended terms and conditions contained in the probation report, defendant was ordered to serve 90 days in jail (minus applicable credits) and to pay specified fees and fines, including a victim restitution fine in the amount of $920 ($620 to be paid to Denise Preciado and $300 to be paid to First USA Management Services).

On appeal, defendant contends the $920 victim restitution fine was unauthorized and not supported by substantial evidence. Court affirm the judgment.

El Dorado County Department of Human Services (DHS) appeals from the juvenile courts orders granting Tracy K. and Brian K. (the parents), the mother and father of S.K. and A.K. (minors), reunification services and continuing placement of the minors in the home of the minors maternal grandmother. (Welf. & Inst. Code, 360, subd. (d), 361.5, 395; further unspecified section references are to this code.) DHS contends the order granting the parents reunification services was not supported by substantial evidence, and that the court committed reversible error in continuing the minors placement with their maternal grandmother. Court disagree with those contentions and affirm the orders.

A modification decision.

Joseph A. Simon entered a negotiated guilty plea to selling cocaine base (Health & Saf. Code, 11352, subd. (a)), and admitted a prior conviction of selling a controlled substance. (Pen. Code, 1203.07, subd. (a)(11).) The court sentenced him to the stipulated three year lower term in prison for selling a controlled substance and ordered him to pay a $600 restitution fine. Simon contends the trial court erred in ordering him to pay the $600 restitution fine. The judgment is affirmed.

A jury convicted defendant of two counts of lewd and lascivious acts upon a child under the age of 14. (Pen. Code, 288, subd. (a).) Sentenced to eight years in prison, he appeals. He contends there is insufficient evidence of count three; the evidence did not establish a violation of Penal Code section 288, subdivision (a) between October 28, 2004, and November 27, 2004. Court find the generic evidence that defendant touched her almost every weekend sufficient and affirm.

Convicted of assaulting his fianc and related crimes, defendant David Joe Smith contends: (1) the trial court erred in permitting the prosecution to offer evidence of a prior spousal abuse conviction; (2) the court erred in failing to instruct the jury on mistake of fact as a defense to a burglary charge; and (3) his trial counsel was ineffective in several regards. Finding no error or ineffective assistance of counsel, Court affirm the judgment.

Defendant Joseph Edward Egyed was employed as a mechanic at a motorcycle dealership. In July 2006, a peace officer encountered him, in an intoxicated condition, about five miles away from the dealership. He pointed to a nearby motorcycle and claimed that he had ridden it there from the dealership. The officer, who knew defendant, also knew that he did not own the motorcycle. Defendant told him that he was working on the motorcycle and was taking it for a test drive. The officer returned the motorcycle to the dealership where the owner confirmed that it had been stolen. Defendant later admitted to a deputy sheriff that the motorcycle belonged to a customer of the dealership and that he did not have permission to drive it.
A jury convicted defendant of unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) He admitted having served a prior prison term. (Pen. Code, 667.5, subd. (b).) He was sentenced to state prison for three years, awarded 194 days of custody credit and 96 days of conduct credit, and ordered to pay a $200 restitution fine (id. 1202.4, subd. (b)), a $200 restitution fine suspended unless parole is revoked (id. 1202.45), and a $20 court security fee (id. 1465.8). Defendant appeals. The judgment is affirmed.

Defendant Lucas Wayne Martin walked up behind Peter Brocklesby, who was sitting on a park bench, and stabbed him twice in the neck with a knife. Defendant was charged with assault with a deadly weapon, personally using a deadly weapon, and inflicting great bodily injury. (Pen. Code 245, subd. (a)(1), 969f, 1192.7, subd. (c), 12022.7, subd. (a); further section references are to the Penal Code.)
Having undertaken an examination of the entire record, Court find no arguable error in favor of defendant. The judgment is affirmed.

The trial court in this case denied the defendant insurer's motion to certify a group of its policyholders as a class of cross-defendants. In the underlying claim against the defendant, the plaintiff class representative alleged finance charges defendant collects on premium installments are also premiums which, in violation of Insurance Code section 381, the defendant did not set forth on the face of the insurer's standard form policies. By way of its cross-complaint the defendant alleged that if its finance charges should have been set forth as premiums in its policies, the class members' policies should be reformed to comply with the requirements of Insurance Code section 381.
In a related writ proceeding this court has issued a writ of mandate directing that the trial court enter an order granting the insurer's summary judgment on the plaintiff's underlying claim and the remittitur in this case has now issued. Accordingly, Court dismiss as moot defendant's appeal in this case.

James Joseph Fox entered negotiated guilty pleas to selling a controlled substance (Health & Saf. Code,[1] 11352, subd. (a)) and possessing a controlled substance for sale ( 11351). He admitted a prior conviction of possessing a controlled substance for sale. ( 11378, 11370.2, subd. (a).) After Fox entered the guilty pleas, he retained private counsel and the court relieved appointed counsel. Fox moved to withdraw the guilty pleas. The court held a hearing and denied the motion. It sentenced Fox to prison for the four-year middle term for selling a controlled substance, stayed sentence for possessing a controlled substance for sale (Pen. Code, 654), and struck the prior drug conviction enhancement. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

Plaintiffs, John A. Torres, Ronald L. Saathoff, Cathy Lexin, Terri A. Webster, Sharon K. Wilkinson and Mary Vattimo, and plaintiff-in-intervention, Bruce Herring, are former members of the Board of Administration of the San Diego City Employees' Retirement System (SDCERS).[1] The board members sued the City of San Diego (City) for specific performance and declaratory relief, alleging that under a City resolution and Government Code section 995 the City was required to pay for their defense in a civil action the San Diego City Attorney, Michael Aguirre, filed against them on behalf of the People of California, and in another civil action in which he filed a cross-complaint against them on behalf of the City. The board members obtained summary judgment against the City. The City filed a late notice of appeal and Court dismissed the matter.
Subsequently, the trial court issued an order awarding the board members attorney fees incurred in this action, under the City's resolution. The City has timely appealed the order, but also purports to raise issues pertaining to the summary judgment. We dismiss the appeal to the extent it concerns the summary judgment ruling as Court lack jurisdiction to consider it. Court affirm the order on the attorney fees incurred in this action.