CA Unpub Decisions

Defendant terrorized his former girlfriend by leaving threatening telephone messages and firing a weapon outside the house in which she was staying. A jury convicted him of stalking (Pen. Code, 646.9, subd. (a) count 1; unspecified section references that follow are to the Penal Code), and making criminal threats ( 422 counts 2 5) and found that defendant used a firearm in making the threat alleged in count 5. ( 12022.5, subd. (a)(1)). The jury also convicted defendant of discharging a firearm in a grossly negligent manner ( 246.3 count 6), and being a convicted felon in possession of a firearm ( 12021 count 7), but acquitted him on another count charging possession of methamphetamine. (Health & Saf. Code, 11377.)
Sentenced to an aggregate prison term of 17 years, defendant appeals, challenging the validity of the firearm use enhancement in count 5 and his convictions on the firearm-related offenses in counts 6 and 7. Specifically, he asserts that the court erred in admitting evidence that defendant, when arrested, possessed another firearm, different from that involved in these charges. This evidence, he argues, was irrelevant and prejudiced the jury. Court conclude that any error was harmless.

Appellant, the minor, appeals from the juvenile courts order establishing a guardianship of the minor. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellant contends the juvenile court committed prejudicial error in finding the minor was served properly with notice of the selection and implementation hearing and in failing to inquire why the minor was absent from that hearing. For the reasons that follow, Court affirm the order.

In 1987, upon the dissolution of marriage between Mary Kay Gahn and Gary Ronald Gahn, their marital settlement agreement (MSA) provided that Gahn would buy Rule's interest in their residence for $15,000, and Rule would execute a transfer of the residence to Gahn upon receipt of $10,000. Gahn failed to pay Rule in full, and he never received the deed. In 2004, Gahn filed an action in superior court seeking to quiet title. The court transferred the case to the family court, which enforced the original MSA.
Gahn contends: (1) the superior court erred in transferring his civil complaint to the family court; (2) the family court deprived him of his constitutional and statutory right to a jury trial; (3) Rule's motion to enforce the MSA was time-barred by Family Code, section 291; and (4) the family court erred in awarding Rule attorney fees. Court affirm the order dated July 28, 2005.

Defendant pleaded no contest to theft from an elder (Pen. Code, 368, subd. (d)) and diversion of construction funds ( 487, subd. (a)). The court granted Culp probation on specific terms and conditions. Culp was also ordered to pay the victims direct restitution. Culp appeals, challenging the amount ordered to be paid in restitution as to three of the victims Harriet Williams, Eugene Dent, and Rose and Emil Krejci. We modify the amount of restitution to the Krejcis by reducing it to $29,611 and affirm the judgment in all other respects.

Hardage Hotels I, LLC (Hardage) sued Criimi Mae Services Limited Partnership (Criimi Mae), a special servicer under a $91 million loan agreement with Nomura Asset Capital Corporation (Nomura), for breach of contract, breach of fiduciary duty and conversion, alleging Criimi Mae wrongfully withdrew $73,000 of Hardage's funds from a third-party-controlled account established under the agreement for reimbursement of loan fees and expenses. The funds received by Criimi Mae were reimbursement for the cost of loan collateral appraisal, necessitated by a subsequent modification of the loan agreement. Hardage asserted it was not responsible for the appraisal costs under the terms of the loan modification agreement. On cross-motions for summary judgment, the trial court granted judgment in favor of Criimi Mae. It ruled that Hardage's claims failed as a matter of law because Hardage was contractually obligated to pay for the appraisals. Hardage appeals, contending that the trial court misinterpreted the applicable contractual language and that, in any event, extrinsic evidence submitted to the trial court created a triable issue of material fact, precluding summary judgment. Court disagree and, for the reasons stated hereafter, affirm the judgment.

Father appeals from an order granting the request of Carole Trepeck (mother) to move with their minor children to Michigan, which the family court entered after a five day custody trial. On appeal, father contends the court (1) denied him due process by refusing to permit him to present competent and material evidence on the issue of custody; (2) erred by quashing his subpeona of mother's therapist its entirety; and (3) erred in admitting the report of the court appointed custody evaluator under Family Code section 216and San Diego County local rules. Court affirm the order.

The appellants in this case are related insurance companies incorporated in the British Virgin Islands. They are in the business of selling automobile insurance policies which provide coverage to residents of Mexico for travel in California. In operating their business, appellants retained the services of an insurance agent in California who issued policies to subagents and received premium payments on their behalf. They also retained the services of a California claims adjuster who adjusted claims for accidents that occurred in California and were covered on policies they issued.
Because appellants do not have certificates of authority permitting them to transact business in California, the California Insurance Commissioner issued appellants a cease and desist order. Appellants challenged the order administratively and an administrative law judge upheld the commissioner's order. Appellants then filed a petition for a writ of mandate, which the trial court denied.
Court affirm.

The People appeal from an in limine order of the trial court dismissing allegations that Eben D. Glaser had previously been convicted in Washington state of a second degree robbery on August 8, 1989, which constituted both a serious and/or violent felony under Penal Code section 667, subdivision (a)[1]and a strike under the three strikes law ( 667, subds. (b)-(i); 1170.12). The People contend the challenged order is appealable under section 1238, subdivisions (a)(1), (a)(2), (a)(8), and (a)(10); and that the trial court erred as a matter of law in determining that the Washington state prior conviction did not contain all the elements of a California robbery for purposes of the serious felony enhancement and three strikes sentencing. Court agree and accordingly reverse and remand for further proceedings on those allegations.

A modification decision.

A jury convicted Fred Jason Wright of residential burglary (Pen. Code, 459/460). Wright waived jury and in a bifurcated hearing the trial court found true the prior strike convictions as alleged in the information (34 prior strike convictions were alleged ( 667, subds. (b)-(i), 1170.12, 668), four prior serious felony convictions were alleged ( 667, subd. (a)(1)), and it was alleged Wright had served one prior prison term ( 667.5, subd. (b), 668)). The court sentenced him to prison for 46 years to life: 25 years to life for residential burglary with two prior strike convictions, enhanced by four 5-year terms for prior serious felony convictions and one year for the prior prison term.
The judgment is affirmed.

Adrian G., Sr. (Adrian, Sr.) appeals the six-month review hearing order terminating his reunification services in the dependency cases of his children, Adrian G., Angel G., and Edgar G. Adrian, Sr., contends there is no substantial evidence that he received reasonable services and that the court should have continued his services because it continued services for the children's mother, T.C. Court affirm.

On June 6, 2006, an election was held to fill the remaining six-month term for the 50th Congressional District of the United States House of Representatives (the House) that became vacant following the resignation of Representative Randy Cunningham. On June 13, 2006, after Brian P. Bilbray received an apparent plurality of the votes cast and his closest opponent conceded, by unanimous consent of the members of the House Bilbray was sworn in and admitted as a member of the House.
On appeal, contestants assert that neither article I, section 5 of the United States Constitution nor the federal statutory law (which permits an election contest challenging the election by a losing candidate) deprives a state court of jurisdiction to entertain an election contest by a voter seeking to "declare elected" a candidate and to annul a certificate of election previously issued to a candidate.
The trial court properly dismissed the action because it involved resolution of a political question, requested relief beyond the jurisdiction of the court to grant and sought an advisory opinion. Court affirm the judgment of the trial court

A jury found Roderick Thomas Rossignol guilty of first degree murder (Pen. Code, 187, subd. (a)) and specifically returned findings that the offense was committed with premeditation and deliberation, but not during the course of a rape or attempted rape. The trial court sentenced Rossignol to prison for an indeterminate term of 25 years to life.
Rossignol appeals, contending that the evidence of premeditation and deliberation in this case was insufficient for first degree murder and that the trial court prejudicially erred by not giving CALJIC No. 8.73 and by requiring the jury to return special findings. In the alternative, Rossignol claims he was denied the effective assistance of counsel if either of the claimed errors regarding the instructions or verdicts is considered waived on appeal. Court affirm.

Defendants appeal from their convictions of the first degree murder of Johnny Rudas, with special circumstances of kidnapping and torture, and their sentences of life without parole. Both defendants contend the trial court erred in failing to give accomplice instructions as to witness Amanda Chamalbide. Jones contends the trial court prejudicially erred in (1) admitting her statement that was made in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) refusing her request to instruct the jury on the defense of duress; (3) giving accomplice instructions as to witness Jeff Bastion; and (4) admitting unnecessarily gruesome crime scene and autopsy photographs into evidence. Malagon contends (1) his trial counsel provided ineffective assistance by failing to object to evidence of Joness assertive conduct in leading the police to the murder scene; and (2) the trial court committed prejudicial error in denying his motions to (a) suppress certain physical evidence seized from his person during an unreasonable search, and (b) suppress his nonMirandized statements to the police at the time of his arrest. Malagon also argues cumulative error, and Jones joins in Malagons arguments to the extent they benefit her. Court find no prejudicial error, and affirm.