CA Unpub Decisions

Chad Morton, a professional football player in the National Football League (NFL), sued Leigh Steinberg, the athlete agent who represented him, and six other individual and entity defendants for many causes of action, including but not limited to breach of contract, fraud, breach of fiduciary duty, unfair competition, and violation of the Miller-Ayala Athlete Agents Act. Steinberg filed a petition to compel arbitration, based on an arbitration provision in the representation agreement between Morton and Steinberg which required arbitration of disputes based on that agreement. However, the representation agreement was not the contract Steinberg was alleged to have breached. The trial court denied the petition to compel arbitration, and Steinberg appealed. Court affirm the trial courts order for two reasons.

Defendants Orbin Santos Leonel (Santos)[1] and Esteban Argomaniz (Argomaniz) were convicted by jury trial of attempted willful and premeditated murder (Pen. Code, 187, 189, 664) and shooting at an inhabited dwelling (Pen. Code, 246). The jury also found that the offenses were gang crimes (Pen. Code, 186.22, subd. (b)(1)(C)) and that a principal in the attempted murder offense had personally and intentionally discharged a firearm (Pen. Code, 12022.53, subd. (c)). Santos and Argomaniz were each committed to state prison for a term of 15 years to life, consecutive to a 20 year determinate term. The judgments are affirmed.

Juan Lomeli Morfin brought this appeal to challenge an order denying his motion to suppress under Penal Code section 1538.5. Because the court reporter's notes of the suppression hearing were destroyed, however, appellant contends that effective review is impossible. According to appellant, the destruction of the notes was unlawfully performed under Government Code section 68152, thereby compelling reversal of the judgment. Appellant is not entitled to the relief he seeks; Court therefore must affirm the judgment.

An information filed October 3, 2006, charged defendant Pedro Lizarraga Vega, with Kristina Darlene Jeffery, with one count of possession for sale of a controlled substance (Health and Saf. Code, 11378) and one count of transportation of a controlled substance (Health and Saf. Code, 11379, subd. (a)). After bringing unsuccessful motions to suppress and to dismiss, defendant pleaded guilty to the possession charge. The trial court dismissed the second count and placed defendant on three years of probation. On appeal, defendant claims the trial court erred in denying his motion to suppress. Court find no error and affirm the judgment.

Petitioners Annetta B. and Eugene W. are the mother and father of Tanisha B., Tyree W., and Taya B., dependent children of the juvenile court. A fourth child, Tavares, is not involved in this case. Pursuant to rule 8.452 of the California Rules of Court, the parents filed writ petitions seeking review of the juvenile courts order terminating reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. After considering the petitions under rule 8.452(i)(1) of the California Rules of Court, Court deny them.

Steven Robert Sutton entered a negotiated guilty plea to two counts of committing a lewd act upon a child (Pen. Code, 288, subd. (a))with substantial sexual conduct ( 1203.066, subd. (a)(8)) and three counts of child abuse ( 273a, subd. (a)). The court sentenced him to a stipulated 12 year prison term: the six year middle term for one count of a lewd act upon a child, two years (one-third the middle term) for the remaining count of a lewd act upon a child, and 16 months (one third the middle term) for each count of child abuse. Sutton appeals. Court affirm.

This is a juvenile dependency proceeding in which the juvenile court in Riverside County held a jurisdictional hearing, and made findings adverse to father, without father being present and without appointing counsel to represent him. The case was then transferred to San Bernardino and the dependency was eventually terminated.
On appeal, father contends that the Riverside court erred in proceeding without his presence, in person and/or by counsel, and that substantial evidence does not support the Riverside courts jurisdictional findings. Father contends that the San Bernardino court erred by failing to sua sponte reverse the Riverside courts jurisdictional findings. Finally, father contends the appeal is not moot, and the San Bernardino court erred in failing to comply with the Indian Child Welfare Act (ICWA).

This is a second appeal by defendant and appellant Amy Leanne Prien (hereafter defendant). In the first appeal,[1]we reversed defendants second degree murder conviction because it was prosecuted on an illegal theory, namely, second degree felony murder based on child endangerment as the inherently dangerous felony.[2] We also reversed three of defendants four felony child endangerment convictions because they were not supported by substantial evidence.[3] Because the issue was then pending before the California Supreme Court, we declined to resolve defendants challenge under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), to the upper term sentence the trial court had imposed on defendants remaining felony child endangerment conviction and a related great bodily injury enhancement. Instead, we remanded the matter to the trial court for a new trial on the murder charge, with the hope that in the interim between remand and retrial our state Supreme Court would resolve the Blakely issue. Court conclude, for reasons we now explain, that Court need not address defendants claim under section 170.6 because Judge Morgan did not actually resentence defendant. Court further conclude that any violation of defendants right to a jury was harmless beyond a reasonable doubt. Therefore, Court affirm.

A jury found defendant guilty of second degree robbery. (Pen. Code, 211.)[1] The court found true the allegation that defendant had three prior strike convictions. The court sentenced defendant to 25 years to life in state prison. ( 667, subds. (c) & (e), 1170.12, subd. (c).) Defendant contends the court abused its discretion by not striking one or more of his prior strike convictions. ( 1385, subd. (a).) Court affirm.

Defendant pled guilty to second degree robbery (Pen. Code, 211)[1]and committing elder abuse ( 368, subd. (b)(1) and admitted having suffered a strike prior. ( 667, subd.(b)-(i).) As part of his plea bargain, he agreed to an eight year prison term and he waived his right to appeal. Following denial of his motion to withdraw his plea, he was sentenced to the agreed-to term. There is no certificate of probable cause in the record before us. Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Court offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered.

On November 14, 2006, pursuant to Penal Code section 1192.7, defendant, represented by counsel, pled guilty to count one ( 215(a), carjacking), and count two ( 211, robbery) as charged in felony case No. FVA027071 filed by the District Attorney of San Bernardino County.
On March 2, 2007, defendants motion to withdraw his guilty plea was denied and, in accordance with the negotiated disposition, defendant was committed to state prison for six years less custody credits, and the remaining count and special allegations were dismissed and stricken on motion of the district attorney pursuant to section 1385. The judgment is affirmed.

Appellant, Bill Benedix, purchased a water system from respondent, Aquacell Technologies, Inc., on April 9, 2003. On July 25, 2005, appellant filed a small claims action against respondent alleging that a leak in the water system discovered on September 1, 2003, had caused water and mold damage to his home. On August 24, 2005, respondent filed the underlying action for abuse of process and negligence against appellant. Appellant filed a cross complaint on September 29, 2005, alleging various causes of action arising from the damages caused by the water leak including emotional distress, general negligence, products liability and fraud. Accordingly, the portion of the order sustaining the demurrer to the causes of action for general negligence and products liability will be reversed. In all other respects, the order of dismissal will be affirmed.

A jury convicted appellant Augustine Ruiz, Jr., of first degree burglary (Pen. Code, 459, 460, subd. (a)). The court imposed the upper term of six years.

Appellant contends (1) he was denied his rights to trial by jury and due process of law under the United States Constitution because the court imposed the upper term based on circumstances in aggravation that were not found by a jury beyond a reasonable doubt, and (2) the minute order of the sentencing hearing and the abstract of judgment incorrectly state that the court ordered appellant to pay the cost of the preparation of the presentence report in the amount of $900. We Court find merit in the second of these contentions, direct the trial court to prepare an amended sentencing hearing minute order and abstract of judgment, and otherwise affirm.

In 1973, a petroleum company entered into a lease allowing it to discover and produce oil and gas on two sections of land located in Kern County. In 1975, the petroleum company assigned Charlotte S. Harris and her husband, Walter Harris, a three percent overriding royalty interest in any oil and gas the company might produce under that lease. After Walter Harriss death in 1981, plaintiff and cross-defendant Charlotte S. Harris, as Trustee of the Harris Family Trust (Harris), succeeded to his interest in the assignment and received payments of the overriding royalty interest. In 1997, defendant and cross-complainant 25 Hill Properties, Inc. (25 Hill) obtained title to a portion of the land covered by the oil and gas lease, and in 2000, 25 Hill was assigned the lessees interest in the oil and gas lease, which granted it the right to continue oil and gas production. 25 Hill thereafter continued to pay Harris the overriding royalty interest. In November 2002, 25 Hill deeded its property to another entity, EK Trust, changed its ownership, and continued to produce oil and gas on the property covered by the oil and gas lease. In June 2005, 25 Hill stopped paying Harris the overriding royalty interest, asserting it was no longer obligated to do so because a merger had occurred in June 2000 which extinguished the oil and gas lease, as well as the overriding royalty interest. Harris sued, claiming 25 Hill had a continuing obligation to pay the overriding royalty interest, and 25 Hill filed a cross-complaint for restitution of the overriding royalty interest it paid from June 2000 to June 2005. On cross-motions for summary adjudication, the trial court held that no merger occurred, but even if the conditions for merger were created, a merger would not extinguish Harriss overriding royalty interest because to do so would be inequitable. Consequently, the court found 25 Hill remained obligated to pay the overriding royalty interest to Harris. 25 Hill appeals from the resulting judgment. As Court explain, Court affirm.