CA Unpub Decisions

Normally, a fee splitting agreement between attorneys is not valid in the absence of the client’s written consent. In our prior opinion in this case, Barnes, Crosby, Fitzgerald, & Zeman v. Ringler, LLP (2012) 212 Cal.App.4th 172 (Barnes I), we held that a party may be equitably estopped from relying on this rule if one party actively prevented the other from obtaining the client’s written consent. We remanded for a trial on that issue.

On October 10, 2017, the Stanislaus County Community Services Agency (agency) filed a petition pursuant to Welfare and Institutions Code section 300, alleging that T.T. (mother) was incarcerated and unable to care for her newborn child, Hailey M. Hailey was detained the next day. On October 13, 2017, an amended petition was filed alleging that mother suffered from chronic substance abuse, failed to properly care for Hailey, failed to bond with Hailey, lacked suitable housing, failed to cooperate with a safety plan, was involved in an adoption scam, and remained incarcerated. The agency alleged mother had failed to successfully reunify with another child seven years previously and sought to bypass providing mother with reunification services. Mother filed a form indicating she did not have Native American ancestry.

Appellant Laura B. is the mother of two girls, E.T. and N.T. A Welfare and Institutions Code, section 300 petition was filed on behalf of the girls by the Fresno County Department of Children and Family Services (department). Father claimed Indian heritage, but the juvenile court found that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), did not apply.
Mother contends the juvenile court’s ICWA finding is reversible error because four tribes were defectively noticed. We affirm.

On March 15, 2016, Oakdale Irrigation District (District), which holds water rights to and diverts water from the Stanislaus River for distribution and use within its 64,000-acre service area, approved a “One-Year Pilot On-Farm Water Conservation Program and Transfer of Consumptive Use Water” (Project). Pursuant to the Project, participating landowners within District’s service area would fallow up to 3,000 acres of farmland during the 2016 irrigation season, potentially conserving up to 9,000 acre-feet of water. The water would be transferred to the San Luis & Delta-Mendota Water Authority and State Water Contractors in exchange for funds to finance the implementation of water conservation measures on the fallowed land. District concluded the Project would have no significant environmental effects based on its initial study and adopted a negative declaration. (Oakdale Groundwater Alliance v. Oakdale Irrigation District (Nov. 27, 2018, F076288) [nonpub. opn.] (Alliance I).)

Appellant M.P. appeals from a dispositional order issued pursuant to Welfare and Institutions Code sections 602 and 725 after the juvenile court found he had evaded a police officer, driven under the influence of alcohol, and was an unlicensed driver, all misdemeanors. M.P. was placed on probation, a condition of which required that he submit to searches of his electronic devices to ensure he did not associate with certain specified coparticipants in a previous matter. On appeal, he challenges the true finding of evading a police officer and the electronics search condition of his probation. The People move to dismiss the appeal for lack of jurisdiction based on technical deficiencies in the notice of appeal.
We conclude we have jurisdiction over the appeal and deny the People’s motion. We find the evidence insufficient to support the true finding on evading a police officer and therefore strike this finding.

Appellant/defendant Robert William Reed was driving a vehicle that went through a stop sign and police officers initiated a traffic stop. The officers determined defendant was driving a stolen car. During the search of the car, the officers found approximately 37 grams of methamphetamine and 20 clonazapam pills under the front passenger seat. Defendant was in possession of over $1,000 cash in various denominations. Defendant said he did not know the car was stolen or that the drugs were under the seat.
After a jury trial, defendant was found not guilty of receiving stolen property, the vehicle. He was convicted of transportation for sale and possession for sale of methamphetamine, possession for sale of clonazepam, and possession of narcotics paraphernalia. He was placed on probation.

At the conclusion of a jury trial on November 9, 2016, defendant and appellant Miguel Angel Villegas Pacheco was convicted of the first degree murder of his 14-year-old stepson, D.G. (Pen. Code, § 187, subd. (a)). On January 11, 2017, the trial court sentenced Pacheco to a prison term of 25 years to life.
Pacheco makes a plethora of arguments, contending (1) the case must be conditionally reversed and remanded due to alleged jury misconduct; (2) there was insufficient evidence of premeditation; (3) there was instructional error because CALCRIM. No. 521 misstates the law by describing premeditation as a decision to kill before completing the act causing death and CALCRIM No. 522 defining the law of premeditation-provocation was an incomplete statement of the law; (4) the prosecutor’s theories of premeditation were also misstatements of the law and defense counsel was ineffective for failing to challenge the prosecutor’s alleged misstatements.

Appellant/defendant Arthur Ray Swope was charged and convicted of two counts of robbery (Pen. Code, § 212.5, subd. (c)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)). He was sentenced to the second strike term of 21 years in prison.
On appeal, defendant argues the court abused its discretion when it denied his pretrial motions to dismiss the venire and for a mistrial. Defendant made the motions during voir dire after a prospective juror, who was a correctional officer, said he recognized defendant because he had previously been in custody. The court denied the defense motions. Thereafter, the court, defense counsel, and the prosecutor extensively questioned the prospective jurors about whether hearing that information would affect their deliberations. Defense counsel excused several individuals from the venire but kept the correctional officer on the jury and did not use all of his peremptory challenges.

Appellant Daniel Eugene Frazer was convicted by jury trial of two counts of first degree robbery. On appeal, he contends (1) as a self-represented, incarcerated defendant, he was denied adequate legal resources in violation of his constitutional rights; (2) the court erred when it denied his request for a trial continuance; and (3) the court erred by admitting cell phone records under the business records hearsay exception. We disagree and affirm.

Defendant and appellant, James David Welton, pled guilty to possession of a firearm by a felon. Defendant additionally admitted he had suffered a prior prison term. Pursuant to the plea agreement, the court sentenced defendant to an aggregate term of two years four months of incarceration.
After counsel from Appellate Defenders, Inc. filed a notice of appeal, this court appointed counsel to represent him.

A jury found defendant and appellant Willie Paul Howell guilty of failure to annually update his sex offender registration within five working days of his birthday (Pen. Code, § 290.012, subd. (a), count 1) and failure to register or reregister as a sex offender upon release from incarceration (§ 290.015, subd. (a), count 2). In a bifurcated hearing, a trial court found true the allegations that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)). Defendant stipulated to the allegation of a third prior strike conviction. The court subsequently dismissed two of the prior strike convictions. It then sentenced him to the upper term of three years on count 1 and eight months on count 2, doubled pursuant to the prior strike, plus one year on each of the prison priors, for a total of nine years four months in state prison.

Leonid Alex Shneyder appeals from the denial of his fourth motion to reduce his felony child pornography conviction to a misdemeanor under Penal Code section 17, subdivision (b). Defendant contends the trial court abused its discretion in denying his motion because of claimed factual errors in the materials presented to previous judges, and his contention the court merely relied on the decisions of previous judges. Our review of the record makes clear the trial court was well informed on the issue before it and acted within its broad discretionary authority in denying defendant's latest motion. We will affirm the order.

Defendant and appellant Timber Ridge Framing, Inc. (Timber Ridge) appeals from a summary judgment entered in favor of plaintiff and respondent Lexington Insurance Company (Lexington), on Lexington's complaint for breach of contract seeking to recover from Timber Ridge $50,000, the amount of two $25,000 insurance deductibles, arising from construction defect claims for which Lexington provided coverage. The trial court granted summary judgment on grounds Timber Ridge did not establish a triable issue of material fact as to any defense, including its defense that there was continuous and progressive damage and thus only one claim in each of two actions on which it owed a deductible, which it had already paid to another insurance company.

Plaintiff Patrick Preston appeals from the order, and judgment entered thereon, granting defendant City of Carlsbad (City) a nonsuit on his first cause of action for wrongful termination based on disability and failure to accommodate under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.); and his third cause of action for violation of Labor Code section 1050. Affirmed.