CA Unpub Decisions

After the trial court denied appellants motion to suppress evidence under Penal Code section 1538.5, appellant pleaded nolo contendere to possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 1) and possession of ammunition ( 12316, subd. (b)(1)) (count 2). Appellant also admitted two prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).
The trial court granted appellants Romero[2] motion and struck the prior conviction allegations. The court sentenced appellant to state prison for the low term of 16 months in count 1 and a concurrent term of 16 months in count 2. Appellant appeals on the ground that the arresting officer exceeded the scope of appellants consent when he searched the trunk of appellants car and opened a closed shoe box lying in the trunk. The judgment is affirmed.

Defendant pled no contest to grand theft (Pen. Code, 487, subd. (c)). He was placed on probation, which he subsequently violated on three separate occasions, the last of which resulted in revocation of probation and imposition of the midterm sentence of two years in state prison. On appeal, defendant contends the court abused its discretion in revoking probation and imposing the midterm prison sentence. Court affirm the judgment.

Pursuant to a plea agreement, defendant Michael Thomas Anderson pled no contest to possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine (Health & Saf. Code, 11383, subd. (c)(1)) and admitted a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). The trial court sentenced defendant to nine years in prison, imposed various fines and fees including a restitution fine of $1,800, and suspended an additional restitution fine of $1,800 pending successful completion of parole.
On appeal, defendant contends the trial court should have granted his suppression motion, and the imposition of the $1,800 restitution and parole revocation fines violated the plea agreement. Court reject the contentions and affirm.

The People charged defendant with five counts of caretaker theft from Margaret Schwab (Margaret), an elder (Pen. Code,[2] 368, subd. (e)); seven counts of grand theft of personal property ( 487, subd. (a)); 11 counts of using personal identification information of another ( 530.5, subd. (a)); 11 counts of obtaining property by false pretenses ( 532, subd. (a)); one count of perjury ( 118, subd. (a)); and 11 counts of forgery ( 470, subd. (a)).
Under a plea agreement: (1) Montesinos pleaded guilty to one count each of caretaker theft from an elder (count 1), grand theft of personal property (count 33), use of personal identification information of another (count 4), and obtaining property by false pretenses (count 15); (2) the People dismissed the remaining charges; (3) Montesinos's sentence was set for three years; and (4) it was agreed that restitution should include all funds in the Schwab Family Exemption Trust and the Marital Deduction Trust (together the Trust). Montesinos executed a Harvey waiver.
The court sentenced Montesinos to a three year prison term on count 1 and concurrent terms of two years each for counts 4, 15 and 33 and ordered him to pay restitution under section 1202.4, subdivision (f) as follows: $89,062.29 to various credit card companies; $25,200 to Dr. Gregory Schwab (Gregory), Margaret's adopted son, for lost wages; $16,128.45 to Gregory for attorney fees; $27,173.72 to the Trust for attorney fees; $13,855 to the Trust for a vehicle purchase; $6,476.64 to the Trust for auto insurance; $1,350 to the Trust for driving under the influence (DUI) fines; $6,159.36 to the Trust for medical insurance; $10,000 to the Trust for a missing wedding ring set; $14,261.59 to the Trust for storage fees; $109,800 to the Trust for the fair market rent of a condominium; $35,000 to the Trust for the loss of value in a retirement facility "buy in" for Margaret; and $162,508.37 to the Trust for trustee fees, trustee attorney fees, independent contractor fees, and additional professional fees. Defendant appeals, contending the court abused its discretion by ordering restitution for: (1) attorney fees not authorized by section 1202.4; (2) Gregory's lost wages at a rate not supported by substantial evidence and for hours not statutorily authorized; and (3) miscellaneous items where the ordered amounts and/or the required nexus between his criminal conduct and the economic loss were not supported by substantial evidence.
Court conclude the court abused its discretion by ordering restitution for the replacement value of the wedding ring set because there was insufficient evidence to establish the value of that property. We therefore modify the judgment to reflect a reduction in the total restitution order by $10,000. In all other respects, the judgment is affirmed.

In November 2004, plaintiff and respondent Zane Shanoski (Plaintiff) brought a complaint against appellant Arnold Joel Neiman (Defendant), seeking damages for misrepresentation, breach of the corporate securities act, and rescission of a contract for the purchase of securities. (Corp. Code, 25401.) The complaint was amended in July 2005. After about six months of discovery, motion practice, and trial preparation hearings took place, Defendant brought a motion to compel arbitration, based on a clause in a real estate buy-sell agreement between the parties that was entered into the same month as the securities purchase, June 2000. (Code Civ. Proc., 1281.2; all further statutory references are to the Code of Civil Procedure unless otherwise noted.)
The trial court denied the motion to compel arbitration, ruling that the fraud complaint did not arise out of the subject Residential Purchase Agreement (RPA), which contained the arbitration clause sought to be enforced (arbitration provision), nor was the securities transaction a "resulting transaction" within the meaning of that provision. The court ruled that the scope of the arbitration provision was not sufficiently broad to encompass the securities fraud issues alleged in Plaintiff's complaint. Additionally, the court found Defendant had waived any right to arbitrate through delay and other steps that were inconsistent with demonstrating an intent to arbitrate.
Defendant appeals the order denying the motion to compel arbitration, arguing the RPA was only one part of the overall transaction between the parties, and its provisions should be read together with other contractual agreements, resulting in a finding that the parties intended the arbitration provision to apply to the entire dispute. He further argues no waiver of any right to pursue arbitration occurred.
These contentions lack merit. On this record, the trial court appropriately admitted extrinsic evidence to clarify the intentions of the parties regarding the breadth and applicability of the arbitration provision, and it correctly found no basis to compel arbitration of the issues raised in the complaint. Further, substantial evidence supports the trial court's finding that Defendant waived arbitration through his failure to assert the right to pursue it in a timely manner, and there was prejudice to Plaintiff sufficient to justify denial of the motion to compel arbitration. Court affirm.

A jury convicted Roberto Antonio Ballard of (1) assault on a child, Angel De Leon, under eight years old resulting in his death in violation of Penal Code section 273ab; and (2) involuntary manslaughter in violation of section 192, subdivision (b). Ballard admitted he had served a prior prison term under section 667.5, subdivision (b). The court sentenced Ballard to a term of 25 years to life on the conviction for the assault resulting in death, plus an additional one-year term for the prior prison term enhancement. The court stayed his sentence for the involuntary manslaughter conviction under section 654. Defendant appeals, claiming the court abused its discretion by allowing him to be shackled in the jury's presence without first showing a manifest need for the restraint. For reasons Court explain, Court conclude Ballard forfeited this claim and Court decline to address its merits on appeal.

After the court denied a motion to discover citizen complaints against a police officer (Pitchess v. Superior Court (1974) 11 Cal.3d 531), Gary Lee Bjorstrom entered negotiated guilty pleas to possessing a controlled substance for sale (Health & Saf. Code, 11351 subd. (a)) and resisting arrest. (Pen. Code, 148, subd. (a).) He admitted a prior narcotics conviction (Health & Saf. Code, 11370.2 subd. (a)). The court denied a motion to strike the prior narcotics conviction and sentenced him to prison for six years: the three year lower term for possessing a controlled substance for sale, enhanced three years for the prior narcotics conviction. It imposed a sentence of credit for time served on the resisting arrest conviction. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
The judgment is affirmed.

In 1992, Calvin Dural Pritchett, Jr. entered a negotiated guilty plea to second degree murder (Pen. Code, 187, subd. (a)) and admitted he personally used a firearm (id., 12022.5, subd. (a)). The court sentenced him to prison for 20 years to life: 15 years to life for murder enhanced by the five-year upper term for personal firearm use. The court ordered Pritchett to pay a $10,000 restitution fine. (Former Gov. Code, 13967, repealed by Stats. 2003, ch 230, 2, eff. Aug. 11, 2003; Pen. Code, 2085.5.) On August 28, 2006, Pritchett filed a petition for writ of coram nobis. In the coram nobis petition, Pritchett claimed that his guilty plea was obtained through false representations by his trial counsel. The trial court denied the coram nobis petition.

Appellant appeal an order declaring their son, Daryl C., Jr., a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). They contend there was not substantial evidence to support a finding of court jurisdiction or to support the order removing Daryl, Jr., from their custody. Daryl, Sr., also asserts there was insufficient evidence to support the order requiring him to attend a domestic violence treatment program. Court affirm the orders.

Appellant appeals from the trial court's denial of her petition for a writ of mandate regarding the denial of disability benefits by the San Bernardino County Employees' Retirement Association (SBCERA). As Court explain, Court determine that the trial court's decision is supported by substantial evidence, and accordingly, Court affirm.

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Martin W. Staven, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Petitions denied.
Daniel R. and Alicia R. seek review of juvenile court orders denying reunification services regarding their daughter, Alicia R. (the minor), and setting a hearing under Welfare and Institutions Code section 366.26. Both parents contest the minor's placement with maternal cousins (the cousins) in Eureka, California. Daniel argues the court erred in denying him reunification services. Court deny the petitions.

Appellant mother of Chamise and Nolina, appeals from an order from the trial court offsetting $13,250 against William Pinks $18, 244.01 total child support arrearage, resulting in a remaining balance of $4,994.01 owed by William to Rosemarie. She contends that the trial court erred because it applied its equitable powers to reduce Williams child support arrears. She also alleges that Family Code[2]section 4504 cannot be applied retroactively to credit Williams Social Security disability payments towards his arrears. In addition, Rosemarie asserts there was insufficient evidence to support the trial courts $13,250 offset against Williams arrears. Finally, she argues that the trial court erred in interjecting a sua sponte objection to a question by counsel for the Department of Child Support Services (DCSS) about how defendants arrearage calculation differed from their calculation.
Court conclude that the trial court did not apply equity to reduce Williams child support arrears. Although in its order the trial court stated it was using its equitable powers to offset Williams direct pays for child support, in fact the trial court properly applied statutory authority by giving William credit for his direct payments to Rosemarie. We find that the issue of whether section 4504 can be applied retroactively was waived because Rosemarie did not specifically request the trial court to render a ruling on that particular issue. We also conclude that there was insufficient evidence to support the trial courts ruling that William was entitled to a $13,250 offset against his arrearage. Finally, we conclude that the trial court did not abuse its discretion in excluding the comparison between arrearage calculations because that testimony would have been irrelevant.

A jury found defendant and appellant Clarence Roberts, Jr., (hereafter defendant) guilty of attempted robbery (count 2) and robbery (count 3). After defendant waived his right to a jury, the trial court made true findings on allegations under the Three Strikes law that defendant previously had twice been convicted of robbery and on an allegation under Penal Code section 667, subdivision (a)(1) that defendant had previously been convicted of a serious felony. The trial court sentenced defendant to serve a determinate term of five years in state prison on the section 667, subdivision (a)(1) prior conviction, and in accordance with the mandate of the Three Strikes law, the trial court sentenced defendant to serve a term of 25 years to life in state prison on count 2 and count 3, to be served consecutively.
Defendant raises two claims of error in this appeal. First, he contends that the trial court should have instructed the jury on attempted theft and theft as lesser included offenses to the charged crimes. Next, defendant contends that the trial court erred in finding that the victim of count 2 was unavailable as a witness, and, based on that finding, admitting her preliminary hearing testimony into evidence at trial. Court agree with this latter assertion, for reasons Court explain below, and therefore reverse defendants attempted robbery conviction.

Petitioner challenges the superior courts order denying his request for appointment of counsel under Penal Code section 1405, subdivision (b).
In the interest of judicial economy, we elect to treat this appeal as a petition for writ of habeas corpus. (Cf. People v. Gallardo (2000) 77 Cal.App.4th 971, 976, 987-989 [notice of appeal ordered refiled as a petition for writ of habeas corpus and considered separately].) The People concede that, Assuming [petitioner] is in fact an indigent prisoner serving time for a felony conviction, and that he had not previously been appointed DNA counsel, the court erred in refusing his request. Because Court can infer these facts from the record, which includes the items of which we take judicial notice, Court grant the petition and direct the superior court to grant petitioners request for appointment of counsel.