CA Unpub Decisions

A jury convicted defendant Derrick Graham of residential burglary (Pen. Code, 459). The trial court sentenced defendant to four years in prison. Defendant contends he was denied the effective assistance of counsel at his trial. Court need not reach the issue of whether counsels performance was deficient because defendant has failed to show prejudice. Accordingly, Court affirm.

Lori M. and Peter R. appeal an order terminating their parental rights and releasing seven year old Marshall R. for adoption by his paternal grandparents. Both parents assert the juvenile court erred in finding that the child would not benefit from a continued parent child relationship. (Welf. & Inst. Code, 366.26, subd. (c)(1)(A).) Court disagree and affirm the judgment.

This appeal and cross appeal are from the judgment dissolving the marriage of husband Joseph Latourelle and wife Jerianne Latourelle. Husband raises a myriad of issues, including challenges to the invalidity of the waiver of spousal support, the award of retroactive spousal support, the level of spousal support and child support, reimbursement of medical expenses, property allocations, the courts treatment of his pension plan and tax refund, and the award of attorney fees. Wife cross-appeals, contending the trial court erred in deeming invalid only that aspect of the prenuptial agreement pertaining to spousal support, and that it should have also found unenforceable the community property waiver provision in the prenuptial agreement.
Court find husbands various contentions unavailing. Nor is there any merit to wifes challenge to the validity of the community property waiver based on alleged unconscionability. Her related claim of undue influence in signing the agreement is similarly unavailing, as she repeatedly confirmed their separate property and acknowledged that she signed the prenuptial agreement to dispel criticism she was marrying only for money.
The judgment is affirmed.

In a court trial, the trial court found Edward Jordan (defendant) guilty of three counts of assault by means of force likely to produce great bodily injury and with a deadly weapon and of petty theft with a prior conviction of a theft-related offense. (Pen. Code, 245, subd. (a)(1), counts 1, 3 & 4; 666, count 2.) With respect to the current convictions, the trial court made findings that defendant inflicted great bodily injury during the assault in count 1 ( 12022.7, subd. (a)) and that the current convictions constituted serious felonies because of the use of a box cutter ( 1192.7). As to the prior conviction allegations, the trial court made findings that defendant had two prior convictions of a serious felony requiring five year enhancements ( 667, subd. (a)(1)), that he had three serious felony convictions that required sentencing pursuant to the three strikes law ( 667, subds. (b)-(i), 1170.12), and that he had served five separate prison terms for a felony ( 667.5, subd. (b)).
He appeals from the judgment and contends that the trial court improperly failed to grant his Marsden motion. (People v.Marsden (1970) 2 Cal.3d 118 (Marsden).)
The Attorney General contends that there is sentencing error requiring a remand because the record demonstrates that the trial court failed to properly impose or strike the eight section 667.5, subdivision (b), separate prison term enhancements.
Court find the contentions to be unpersuasive. However, the Peoples contention requires that we modify the judgment by indicating that the trial court properly made six findings of a prison term enhancement pursuant to section 667.5, subdivision (b), and that the six findings are stricken from the judgment. In all other respects, Court affirm the judgment.

Defendant appeals from a judgment following a court trial in favor of her father, plaintiff and respondent Edward L. Johns, in this quiet title action. Appellants brief fails to present coherent legal arguments, supported by a fair statement of the facts, showing reversible error as to any ruling by the trial court. Under settled rules of appellate procedure, she has failed to demonstrate error on appeal and Court therefore affirm the judgment.

This appeal involves a paternity and child support judgment rendered under the Uniform Parentage Act (UPA). (Fam. Code, 7600 et seq.)This case is one of three lawsuits between the parties that raise a single issue: child support. Unfortunately, the trial court allowed the biological fathers paternity action to go forward against the natural mother alone, without requiring the joinder of the children, as is mandated by statute. ( 7635.) While this resulted in a valid judgment between the mother and father, the judgment is not binding on the children, who are entitled to maintain a separate action for support against their biological father.
Apart from challenging the trial courts jurisdiction to render a judgment in the absence of the children, the mother also questions the constitutionality of a UPA provision allowing for confidentiality to be maintained during a paternity action. Court find that the statute passes constitutional muster. By the same token, a gag order issued two days after the trial amounts to a prior restraint on speech and must be reversed.

Appellant appeals from a judgment entered after a jury found him guilty of count 1, unlawfully taking or driving a vehicle (Veh. Code, 10851), and count 2, receiving stolen property (Pen. Code, 496). Court affirm.

This is a breach of contract case. Defendant The May Department Stores Company (hereinafter, May Co.) appeals from a judgment awarding liquidated damages of $10,000, plus attorney fees and costs, to plaintiff Luanne Nierenhausen for May Co.s breach of the terms of a settlement agreement resolving her claim of wrongful termination. May Co. issued an Internal Revenue Service (IRS) Form 1099 to Nierenhausens law firm, as required by the terms of the settlement agreement. But by also issuing a Form 1099 to Nierenhausen personally, reflecting the same payment made to her law firm, May Co. breached the settlement agreement.
May Co. contends, in essence, as follows: (1) it was required by law to issue a Form 1099 directly to Nierenhausen; (2) it did not breach the terms of the agreement because nothing in the agreement specifically prohibited it from issuing a Form 1099 to Nierenhausen; and (3) any interpretation that it breached the agreement by complying with tax laws contravenes public policy. Court find May Co.s contentions unavailing, because the plain terms of the agreement and federal law at the time only required one Form 1099, and agreeing to issue the Form 1099 to counsel was appropriate at the time of the settlement agreement when the issue of tax liability for attorney fees in personal injury matters was not yet resolved by the United States Supreme Court.

Convicted by jury of multiple felonies and firearm use, defendant Frank Garcia argues that rulings of the trial court denied him a fair trial and that he received constitutionally inadequate assistance of trial counsel. Court reject the contentions and affirm the judgment.

Defendant entered a plea of no contest to arson in violation of Penal Code section 451, subdivision (b). In a separate proceeding, the trial court found defendant had suffered a serious felony prior conviction ( 667, subd. (a)), a conviction pursuant to the three strikes law ( 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), and had served four prior prison terms ( 667.5, subd. (b)). Defendant was sentenced to 12 years in state prison, comprised of the low term of three years for arson, doubled pursuant to the three strikes law, enhanced by five years for the serious felony prior conviction, and one year for a prior prison term. The remaining prior prison term allegations were stricken.
In this timely appeal, defendant argues the record does not support the trial courts finding that his prior conviction under section 245, subdivision (a)(1), was a serious felony.
The judgment is affirmed.

The trial court denied a motion to vacate a judgment entered against defendant after he failed to appear for trial. Defendant contends that the court lacked jurisdiction to enter judgment because no proper notice of the trial date was given to him pursuant to Code of Civil Procedure section 594. Court affirm because (1) the motion to vacate was untimely and (2) the trial court did not abuse its discretion in denying the motion on the merits.

Plaintiff appeals from an order granting terminating sanctions in favor of defendant and respondent Vitracoat America, Inc. Perlman contends: (1) the trial court should have found he was disabled within the meaning of the Americans with Disabilities Act of 1990 (42 U.S.C.A. 12101 et. seq.) (ADA) and unable to appear for his deposition; and (2) the trial court abused its discretion by imposing terminating sanctions. Court find that Perlman waived his argument based on the ADA by failing to raise the issue in the trial court and there was no abuse of discretion. Therefore, Court affirm.

Defendant appeals from the judgment entered following his convictions
by jury on count 1 possession of a flammable substance with malicious intent
(Pen. Code, 453, subd. (a)) and count 2 unauthorized taking of a vehicle
(Veh. Code, 10851, subd. (a)). The court sentenced him to prison for four years four months, including upper terms on both counts. Court accept appellants claim that imposition of the upper terms was reversible error in violation of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856]. There was substantial evidence that appellant entered a fuel truck parked in a San Pedro terminal and drove the truck, loaded with fuel, around the terminal. When detained, appellant said, inter alia, he had intended to blow up the terminal, get his children, and blow up the Torrance office of the Department of Child and Family Services (DCFS). The trial court imposed the upper terms based on the fact that this conduct is particularly, since Oklahoma City and other things that have happened in this country, is just egregious[.] However, the above fact was not found true by a jury beyond a reasonable doubt, and the error warrants reversal under a harmless-beyond a reasonable doubt standard. Moreover, since reversible Cunningham error occurred, there is no need to reach the issue of whether the trial court abused its discretion by imposing the upper terms.
Court conclude the trial court may have imposed multiple punishment on both counts in violation of Penal Code section 654. The trial court indicated the offenses may not merge pursuant to [Penal Code section] 654, the court later imposed punishment on both counts, and there was substantial evidence upon which the trial court properly could have relied to do so. On the other hand, the court, referring to the offenses at issue in the counts, stated its all one and the same transaction, suggesting the court had concluded the offenses were committed as part of an indivisible transaction. However, if that was the courts conclusion, multiple punishment was error. Court remand the matter to permit the trial court to clarify its ruling and for resentencing. Court accept respondents concessions that appellants sentences in his two probation cases must be served concurrently to one another, and that appellant is
entitled to additional precommitment credit in those two cases.

The Los Angeles County Employees Retirement Association (LACERA) is an independent governmental entity providing retirement, disability and death benefits to eligible Los Angeles County employees based on the members contributions to the retirement system pursuant to the County Employees Retirement Law of 1937 (CERL, Gov. Code, 31450). This appeal focuses on CERLs distinction between safety members and general members, with the former making larger contributions to LACERA and receiving more generous retirement benefits than the latter. Two retired County police officers challenged LACERAs decision that they are general members and sought reclassification as safety members. Their request was denied, as was their subsequent demand for a hearing. The officers then sued LACERA, challenging the system as discriminatory (because Los Angeles County Sheriffs deputies are paid more than the Countys police officers) and claiming they have a right to a hearing. The trial court sustained LACERAs demurrer without leave to amend. Court agree with the trial court that the classification of LACERAs members is a matter for the Legislature, that (on the merits and by the bar of collateral estoppel) LACERA has no jurisdiction to reclassify a general member as a safety member, that no purpose would be served by a hearing, and that litigation of the discrimination claims is barred as a matter of law. Court affirm.