CA Unpub Decisions

Plaintiff appeals from a judgment entered after the trial court granted the motion of Donald Masuda and the Law Office of Donald Masuda (collectively, defendant) to enforce a settlement agreement pursuant to section 664.6 of the Code of Civil Procedure, which states in pertinent part: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Further section references are to the Code of Civil Procedure).
On appeal, plaintiff contends the court erred in entering judgment because there was no evidence of [a] settlement. As Court explain, plaintiff has failed to establish error. Thus, Court affirm the judgment.

Robert Richard Evans appeals from a default judgment awarding injunctive relief against him in a lawsuit filed by (1) Regal Concepts, through its trustee Michael D. Houlihan, and (2) Lester Cooper (collectively plaintiffs). Court conclude that the default judgment is void because it was based on an improperly entered order striking Evans's answer to the complaint and an improper entry of default. Accordingly, Court reverse.

The Department of Motor Vehicles (the Department) appeals a judgment granting a petition for writ of mandate brought by petitioner Michael Louis Eberle, setting aside an administrative suspension of his driving privileges. (Veh. Code, 13353; all further statutory references are to this code unless noted.) Using its independent judgment, and taking into account the policies behind the implied consent law, the superior court analyzed the record and concluded that under the circumstances of this particular case, Eberle had not refused to comply with chemical test procedures and therefore the suspension should be set aside. (Code Civ. Proc., 1094.5.)
Court conclude the trial court's decision to grant the petition was based on substantial evidence, and the judgment affirmed.

After the court denied a motion for a mistrial, Terrill Anthony Bell entered negotiated guilty pleas to possession of a controlled substance for sale (Health & Saf. Code, 11351.5) and unlawful possession of body armor (Pen. Code, 12370, subd. (a)).[1] He admitted two prior strikes ( 667 subds. (b)-(i), 1170.12, 668) and serving a prior prison term ( 667.5 subd. (b), 668). He waived his right to a jury or court trial, the right to confront and cross examine witnesses, the right to subpoena witnesses, the right to present evidence, and the right to testify or remain silent, as to any sentencing factors that may be used to increase his sentence to the upper term. (See Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (January 22. 2007) U.S., 2007 WL 135687.) The court struck one prior strike and the prior prison term enhancement and sentenced him to prison for 11 years and four months: double the five year upper term for possessing a controlled substance for sale with a prior strike with a consecutive 16 months for unlawfully possessing body armor with a prior strike (double one third the middle term). The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304.) Court granted Bell permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Bell on this appeal. The judgment is affirmed.

On February 13, 1001, Zandra L. Edison entered guilty pleas to inflicting corporal injury on her spouse, (Pen. Code, 273.5, subd. (a)) and assault with a deadly weapon ( 245, subd. (a)(1)). She admitted personally using a deadly weapon ( 12022, subd. (b)(1)) and inflicting great bodily injury ( 12022.7, subd. (d)). The court suspended imposition of sentence and placed her on five years probation. In March 2004, the court revoked and reinstated probation after Edison admitted using force and violence on another. In October 2005, the court revoked probation after Edison admitted failing to report to her probation officer and to remain law-abiding. The court obtained a diagnosis and evaluation of Edison from the California Department of Corrections and Rehabilitation ( 1203.03) that recommended the court impose a prison sentence. The court sentenced her to prison for six years: the two year lower term for inflicting corporal injury on her spouse, enhanced three years for inflicting great bodily injury and one year for deadly weapon use. It stayed sentence for assault with a deadly weapon. ( 654.) The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Edison on this appeal.
The judgment is affirmed.

The People charged Defendant with 28 counts of lewd and lascivious conduct with more than one child under the age of 14 years (Pen. Code, 288, subd. (a), 1203.066, subd. (a)(7), 667.61, subds. (b), (c), & (e)),[1]three counts of exhibiting harmful matter to a minor with the intent to arouse sexually ( 288.2, subd. (a)), 36 counts of committing a lewd act on a child 14 or 15 years of age ( 288, subd. (c)(1)), and 11 counts of sodomy with a minor ( 286, subd. (b)(1)). Jankowicz entered guilty pleas to two counts of lewd and lascivious conduct with more than one child under the age of 14 years and one count of committing a lewd act on a child 14 or 15 years of age. The court denied a motion to withdraw the guilty pleas and sentenced him to prison for a stipulated sentence of 32 years to life: consecutive terms of 15 years to life on each conviction of lewd and lascivious conduct with more than one child under the age of 14 years and two years on the conviction of committing a lewd act on a child (one-third the middle term). The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b) (former rule 30(b).)
review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Defendant on this appeal.
The judgment is affirmed.

Defendant appeals from a judgment convicting him of two counts of first degree murder based on his stabbing of Jose Luis Vargas (count 1) and Ricardo Sanchez (count 3). He raises various contentions of error arising from the trial court's dismissal of a juror after the jury had started deliberations. He also argues the judgment must be reversed because of (1) the failure to strike and admonish the jury regarding inadmissible testimony, (2) his shackling during trial, and (3) the failure to record the reading of the jury instructions.
Court conclude the count 3 verdict must be reversed based on structural error arising from the dismissal of the juror. After the court dismissed the juror and the juror left the courtroom, the jury foreperson told the court that the jury had unanimously reached a verdict on count 3. Later, when the newly constituted jury reached a verdict on count 1, both verdicts were declared and accepted in open court. The dismissed juror was not present when the jury foreperson told the court that a verdict had been reached on count 3, nor when the count 3 verdict was formally acknowledged in open court. The dismissed juror's absence impacted Cruz's constitutional right to a unanimous jury by depriving him of his right to confirm that the guilty verdict on count 3 was the result of a unanimous vote. This error requires reversal of count 3.
Court reject Cruz's remaining assertions of error, and affirm the judgment as to count 1.

In this appeal, Joseph P. Guzzetta, the former city manager of the City of Desert Hot Springs (the City), challenges the trial court's dismissal of his lawsuit against the City, and its mayor, Matt Weyuker. Specifically, Guzzetta challenges the trial court's (i) sustaining of a demurrer to Guzzetta's cause of action for violation of the False Claims Act (Gov. Code, 12650, 12653, subd. (b)) on the ground that Guzzetta did not give the City notice of the claim as required under Government Code section 905; and (ii) striking of Guzzetta's remaining causes of action for defamation, false light invasion of privacy, and a violation of the Labor Code, under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16), which requires dismissal of meritless claims that would penalize an exercise of protected free speech rights.
Guzzetta contends that the trial court erred in sustaining the demurrer to his False Claims Act cause of action because the cause of action fell within an exception to the Government Code's notice of claim requirements. He also argues that the court's anti-SLAPP ruling was erroneous because the defamatory statements at issue did not constitute a valid exercise of free speech rights, and because he demonstrated a probability of prevailing on the stricken claims.
As discussed below, Court's evaluation of these contentions reveals them to be without merit. Consequently, Court affirm the judgment.

A jury convicted Joshua Wayne Shattuck of sodomy (Pen. Code, 286, subd. (c)(2)) (count 1); forced oral copulation ( 288a, subd. (c)(2)) (count 2); torture ( 206) (count 3); assault with a deadly weapon ( 245, subd. (a)(1)) (count 4); corporal injury to a cohabitant ( 273.5, subd. (a)) (count 5); and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (count 6). The jury also found that Shattuck committed torture ( 667.61, subd. (d)(3)) in connection with counts 1 and 2. The trial court sentenced Shattuck to prison for 25 years to life.
Shattuck contends that (1) the trial court committed prejudicial error by excluding evidence that was relevant to his defense, and (2) defense counsel provided ineffective assistance in failing to request that the trial court instruct the jury regarding voluntary intoxication.
As Court explain, we conclude that Shattuck's contentions lack merit. Accordingly, Court affirm.

A jury convicted Robert William Cress and Steven Wayne Phillips of first degree murder (Pen. Code, 187, subd. (a)) and found that Phillips discharged a firearm proximately causing death (Pen. Code, 12022.53, subd. (d)). A separate jury convicted Jose Morris Salcido of first degree murder. Cress and Salcido were sentenced to 25 years to life in prison, and Phillips to 25 years to life plus 25 years. The defendants appeal, making various claims which Court reject, save one concerning the restitution ordered by the sentencing court. Upon agreement of the parties, Court direct the trial court to modify its order concerning restitution. Otherwise, Court affirm all the convictions and sentences.

The trial court overruled Mayers evidentiary objections (or, more accurately, it assumed, for the sake of argument, that all of plaintiffs evidence was admissible). Nevertheless, it denied plaintiffs motion; it found that common questions of law and fact do not predominate over individual issues; the claims of the class representatives are not typical; and that class action is not superior to individual trials and will not confer a substantial benefit on both the court and the parties. Plaintiffs appeal.
Court hold that plaintiffs failed to submit any admissible evidence regarding the criminal investigation. In light of the admissible evidence, the trial court did not err. The order appealed from is affirmed.

Appellant stands convicted, following a jury trial, of the forcible rape of M. (Pen. Code, 261, subd. (a)(2)) and misdemeanor sexual battery of J. (id., 243.4, subd. (e)(1)). Sentenced to a total term of eight years in prison, he now appeals, raising various claims of trial and sentencing error. For the reasons that follow, Court vacate the sentence with directions.

The court readjudged appellant, Aurelio T., a ward of the court (Welf. & Ins. Code, 602) after it sustained allegations charging him with one count each of possession of a concealed weapon (count 1/Pen. Code 12101, subd. (a)),[1]possession of a dangerous weapon (count 2/ 12020, subd. (a)), carrying a concealable firearm by an active street gang member (count 3/ 12025, subd. (b)(3)) and allegations in counts 1 and 2 that the underlying offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). On April 13, 2006, the court committed appellant to 365 days in juvenile hall. On appeal, Aurelio contends: (1) the evidence is insufficient to sustain the gang enhancement in counts 1 and 2; (2) the evidence is insufficient to sustain the courts true finding with respect to count 3; and (3) the court erred in calculating his maximum term of confinement. Court find merit to Aurelios second and third contentions. In all other respects, Court affirm.

An order denying a motion to vacate a judgment is an order after judgment, and might be considered appealable under P. C. 1237(b). But when an appealable judgment of conviction is entered, the defendant has an adequate remedy by an appeal from it. If it were permissible for the defendant to move to vacate the judgment, and then appeal from an order denying the motion, the effect would be to give either of two entirely unwarranted privileges: (a) The defendant could appeal from the judgment and also from the order denying the motion to vacate, thus obtaining two appeals from virtually the same ruling. (b) The defendant could neglect to appeal from the judgment, and at any later time make the motion to vacate and appeal from the order of denial, thus indefinitely extending the time for appeal.
For these reasons the order is ordinarily nonappealable, regardless of whether there was an appeal from the judgment, or whether the errors asserted are the same as those that were raised on an appeal from the judgment, or were such as could have been raised on such an appeal but were not. . . . (6 Witkin, supra, at 53.)
This court concludes that the Order is not appealable. Any other result would allow a defendant to file successive motions to modify or vacate a conviction and, upon their denials, perfect multiple appeals in essence challenging a judgment long since final. (Cf. 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, 99.) This appeal is not taken timely from the judgment in 2001. Therefore, the appeal in the above entitled action is dismissed.