CA Unpub Decisions

When a dispute arose between plaintiff, Audrey Candis Leaf Faulk, and her stepmother, defendant Helen Mary Wagner Leaf, the latter transferred all of her interest in realty and a dog kennel business to G.R.W., Inc., a Nevada corporation. After plaintiff obtained a $1.1 million judgment against defendant, she filed the instant action to set aside defendants transfers as fraudulent. (Civ. Code, 3439.04.) The trial court entered judgment in favor of defendant finding that plaintiff had failed to carry her burden to show that defendant made the transfers with intent to defraud plaintiff. Plaintiff appeals. Court hold plaintiff has amply demonstrated actual intent to defraud. (Civ. Code, 3439.04, subd. (a)(1).) Accordingly, we reverse the judgment.

Milton C. appeals an order setting his maximum period of confinement (Welf. & Inst. Code, 731) after the court had sustained petitions (Welf. & Inst. Code, 602) finding he committed vandalism (Pen. Code, 594, subd. (b)(2)),[1]possessed tools for vandalism ( 594.2, subd. (a)), committed burglary ( 459), battery ( 243.2, subd. (a)), made false statements to police officers ( 148.9, subd. (a)), escaped from custody (Welf. & Inst. Code, 871, subd. (d)), committed grand theft ( 487, subd. (a)), unlawfully took a vehicle (Veh. Code, 10851, subd. (a)), and violated probation conditions.
Court conclude that the court did not have to order a supplemental social study. Court affirm.

Larry Anthony Williams appeals a judgment following conviction of carjacking, with findings of personal use of a deadly weapon during the criminal offense, two prior serious felony convictions, and service of a prior prison term. ( 215, subd. (a), 12022, subd. (b)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) Court reverse and remand for resentencing, but otherwise affirm.

Appellants Donald D. Hemme and Leslie D. Reader appeal from the denial of their suppression motions. Appellants were each charged with one count of felony possession for sale of a controlled substance within the meaning of Health and Safety Code, section 11378. (Count one.)
Appellants contend that the search of their motor home exceeded the permissible scope of the warrant and that the warrant itself was overbroad. They also contend that the trial court erred because it did not hear testimonial evidence at the suppression hearing. We conclude the suppression motions and motion to quash were properly denied, and Court affirm.

Jose J. Hernandez (Hernandez) appeals the judgment (order revoking probation) entered following a court trial which resulted in his conviction of inflicting injury on the parent of his children (Pen. Code, 273.5), two counts of battery ( 242), first degree burglary ( 459), and two counts of making criminal threats ( 422). The trial court sentenced Hernandez to a term of four years in state prison. Court affirm the judgment.

Plaintiff Aubrey LaBrie sued defendant Gessica Louise Eaton for injuries he suffered when defendants car hit his pickup from behind while both were traveling on Interstate 80. Plaintiff testified he had been driving in lane number one when the accident occurred. Defendant claimed plaintiff changed lanes from lane number two to lane number one, then quickly stopped, leaving her insufficient time to avoid the accident.
The jury determined defendant was not negligent. The trial court entered judgment against plaintiff, and it subsequently denied plaintiffs motions for judgment notwithstanding the verdict and for a new trial. Court conclude the trial court did not abuse its discretion in denying plaintiffs motion for new trial, and Court affirm the judgment.

Defendant appeals from the judgment of conviction after a jury found him guilty as charged of committing the following sex offenses against four children: nine counts of lewd or lascivious acts upon a child under the age of 14 (Pen. Code, 288, subd. (a); counts 1, 4, 6, 8, 9, 11, 14, 15, 16),[1]six counts of attempt to commit lewd or lascivious acts upon a child under the age of 14 years ( 664/288, subd. (a); counts 2, 3, 5, 10, 12, 13), and one count of penetration of a child under the age of 14 years with a foreign object. ( 289, subd. (j); count 7.) The jury found true a sexual offender penalty allegation that the offenses charged in counts 8, 14, and 15 were committed under one of the circumstances specified in section 667.61, subdivision (e).[2] The trial court found that a violation of section 288, subdivision (a) was committed against more than one victim ( 667.61, subd. (e)(5)) and sentenced defendant to a determinate prison term of 16 years plus an indeterminate term of 45 years to life. Court agree with defendant as to this last point and shall order the abstract of judgment be amended to correct the error. In all other respects Court affirm the judgment.

This case was initiated in San Luis Obispo County and was later transferred to Shasta County. Appellant George B., father of the minor, appeals from orders of the juvenile court entered following a 12-month review hearing. (Welf. & Inst. Code, 366.21, subd. (f), 395.) He contends the juvenile court erred when it failed to appoint counsel and a guardian ad litem and that the failure to comply with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA), title 25 of the United States Code section 1901 et seq., requires reversal. Due to procedural defects that occurred near the inception of the case, Court reverse and remand the matter for further proceedings.

What is the impact of the legislative amendment of a pertinent statute while a case is pending before the Supreme Court? Real party in interest Developers Diversified Realty Corporation (Developers Diversified) challenges the trial courts judgment granting the petition of California Earth Corps (Earth Corps) for a writ of mandate directing the California State Lands Commission (Commission) to set aside approval of a land exchange with the City of Long Beach (City). The Commission and the City agreed to transfer three acres of tidelands in Long Beach protected by the public trust doctrine (the Queensway Bay parcels) out of the public trust in exchange for 10 acres along the Los Angeles River (the Queensway exchange), which would then become public trust land. The transfer would enable the City and Developers Diversified to move ahead with the Queensway Bay Development Plan, which would entail construction of a large retail and entertainment complex on the waterfront.
Developers Diversified filed, and the City joined in, a motion in the superior court for a new trial or entry of a different judgment, arguing that revised section 6307 required a different judgment. The superior court denied Developers Diversifieds motion and issued the writ. Developers Diversified appeals, arguing the superior court should have applied the law in existence at the time of its decision and vacated the judgment. Court affirm the judgment.

Defendant William Kearns appeals the trial courts order prohibiting him (pursuant to Code of Civil Procedure section 527.6) from contacting or harassing plaintiff T.J. and her daughter C. and ordering him to stay at least 100 yards away from T.J., her car and residence. Kearns contends the order was error because his conduct did not constitute harassment as a matter of law, and the imposition of a restraining order constitutes a disproportionate response to the harm allegedly suffered. Court find neither contention to have merit and affirm the judgment (order).

Defendant James Robert Sparkmon appeals from a judgment convicting him of vehicle theft following entry of a no contest plea. Defendant contends his suppression motion was wrongly denied. Concluding defendant did consent to a patdown search and that his consent was voluntary, Court affirm the trial courts judgment.

In exchange for dismissal of other counts against him, defendant Martin Velarde, Jr., pled guilty to making criminal threats and cruelty to a child by inflicting injury and admitted a special allegation that he personally used a deadly weapon. After initially sentencing him to an aggregate prison term of three years, the trial court recalled defendants sentence and instead placed him on probation for four years subject to various terms and conditions, including that he refrain from the use or possession of alcohol, enroll in an in/out patient substance abuse treatment program, attend daily AA/NA meetings for 90 days (as directed by his probation officer or treatment staff), and reside in a clean and sober living environment as approved by his probation officer. The judgment is affirmed.

The trial court sentenced defendant Catherine Elaine Tuschen to a three year prison term after she pleaded no contest to being an accessory after the fact (Pen. Code, 32) and destruction of evidence (Pen. Code, 135) in connection with the murder of Christopher McAuliffe. The trial court imposed the upper term of three years on the accessory conviction based on its finding of several aggravating factors.
On appeal, defendant argues the trial court improperly decided the aggravating factors based on a burden of proof that was less than beyond a reasonable doubt, and that there was insufficient evidence to find the aggravating factors beyond a reasonable doubt. Court conclude defendant has waived her claim of insufficiency of the evidence by failing to set forth in her brief all of the material evidence.

Under Penal Code section 237, false imprisonment is generally punishable as a misdemeanor; however, [i]f the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison, i.e., as a felony. (Pen. Code, 237, subd. (a).) Thus, the crime of which defendant was convicted is a felony, and the court has no discretion to treat it as a misdemeanor. (People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 330; see also People v. Manning (1982) 133 Cal.App.3d 159, 163, fn. 1.) Accordingly, the trial court did not err in denying defendants motion. The judgment is affirmed.