CA Unpub Decisions

In February 2001, in case No. FWV021432, defendant, represented by counsel, entered into a plea bargain whereby he pled guilty to one count of false personation (Pen. Code, 529) in exchange for a three year grant of probation which included various terms and conditions and the dismissal of count 2 ( 530.5, subd. (a)).
Thereafter, defendants grant of probation was subsequently revoked and extended to a period of five years and the terms and conditions of probation were reinstated.
In January, 2006, the District Attorney of San Bernardino County filed new charges against defendant in case No. FWV036585, which charged one count of dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)), one count of cruelty to a child ( 273a, subd. (b)), and one count of corporal injury to a spouse or co-habitant ( 273.5, subd. (a)). As a result of the new case, probation was ordered revoked in case No. FWV021432.
Thereafter, on July 14, 2006, a plea bargain was reached whereby defendant admitted being in violation of his probation in case No. FWV021432 and defendant agreed to a state prison sentence of 16 months in exchange for the dismissal of the charges in the new case (No. FWV036585). In accordance with the plea bargain, defendant was awarded the appropriate custody credits and a timely notice of appeal was filed on defendants behalf in both cases.

Appellant (Father) is appealing from the termination of his parental rights pursuant to Welfare and Institutions Code section 366.26.The three minors who are the subjects of this appeal, Carla G., A.G., and J. G., were born to Father and their mother (Mother) between January 1999 and July 2002. Father and Mother, although not married, had been together since 1998, residing with their three children in the home of Mothers parents. In April 2004, at the age of 27, Mother died from a heart attack attributed to her morbid obesity. After Mothers death, Father took the children and moved out of the maternal grandparents home.
The Department filed a section 300 petition alleging minors came within subdivisions (a), (b), (g), and (j). The minors were detained and placed in the home of the maternal grandparents, where they remained until the termination of Fathers parental rights on July 27, 2006.
Even though court are not required to conduct an independent review of the record under In re Sade C., supra, 13 Cal.4th 952, court have done so. Court have completed that review and find no arguable issues. The judgment is affirmed.

Defendant (Joe) claims he is the biological and presumed father of one year old David E. Joe appeals from the orders and findings of the juvenile court denying him reunification services or visitation with David. Joe claims the court erred in finding that he was not a presumed father and failing to offer him reunification services or visitation with David. As explained below, court reject these contentions and affirm the judgment.

Appellant (Aunt) is the maternal aunt of the three minors who are the subjects of this appeal. She is appealing from the juvenile courts denial of her petition seeking appointment of herself as the minors guardian. Joseph A., J.A., and E.A. (Minors ) are currently in the care of a court-appointed guardian. Aunt filed her petition in April 2006.Even though we are not required to conduct an independent review of the record under In re Sade C., supra, 13 Cal.4th 952, we have done so. Court have completed that review and find no arguable issues. The judgment is affirmed.

Mother and father, the parents of J.R. (child) who is presently six years old, appeal from an order of the dependency court terminating their parental rights. After a review of the entire record, court affirm the judgment.

Appellant sued the court appointed attorneys who represented him in a misdemeanor case. He alleged that their mishandling of the case resulted in his wrongful conviction as well as his incarceration for 57 days in connection with competency proceedings under Penal Code section 1368. As an alternate, narrower theory of wrong and injury, appellants allegations indicate that respondents unjustified failure to attend doctors interviews caused the time he spent in jail in connection with the competency proceeding to be unnecessarily prolonged.
Appellant contends the superior court committed reversible error by treating his pleadings as only involving a claim for legal malpractice and by failing to overrule the demurrer as to cognizable theories of recovery for, among other things, (1) strict liability, (2) abuse of process, (3) false imprisonment, (4) defamation, (5) public nuisance, (6) intentional battery through the use of an abnormally dangerous activity, (7) trespass to chattel, and (8) invasion of privacy. Appellant also contends respondents conceded that his complaint should be presented to a jury because they stipulated to a trial date at a case management conference.
On appeal, respondents ignore the above enumerated legal theories and treat appellants pleadings as attempting to allege only a claim for wrongful conviction based on legal malpractice. This inappropriately narrow view of the pleadings apparently occurred in the superior court as well. The record on appeal does not show that those legal theories were addressed by respondents or considered by the superior court before the order dismissing the complaint was entered.
Accordingly, Court (1) affirm the order sustaining the general demurrer only as it relates to appellants claim that legal malpractice caused his wrongful conviction, (2) reverse the order as to other claims asserted, and (3) remand for further proceedings on the other claims. Appellants argument that the further proceedings require a trial to be held is rejected based on our conclusion that the parties agreement to set a trial date is not the legal equivalent of agreeing that the matter would be tried.

Appellant, challenges his conviction for assault with the infliction of great bodily injury on a person who was at least 70 years of age. (Pen. Code, 245, subd. (a)(1) and 12022.7, subd. (c).) Appellant contends the photo lineup procedure was impermissibly suggestive and thus he was denied due process by the admission of the victims extrajudicial and in court identifications. Appellant further argues that the sentencing court erred in imposing an upper term based on findings of aggravated facts not found true by the jurys verdict in violation of Blakely v. Washington (2004) 542 U.S. 296.
Contrary to appellants position, the identification procedure was not unduly suggestive. However, appellant was improperly sentenced under Cunningham v. California (2007) U.S. [127 S.Ct. 856]. Accordingly, the judgment of conviction affirmed and the judgment of sentence be reversed.

Appellant, challenges his conviction on two counts of threatening another person with immediate great bodily injury in violation of Penal Code section 422. According to appellant, the evidence does not support the finding that the victims were in sustained fear for their safety. Appellant further contends that the trial court erred in finding that his two prior Oregon convictions for attempted sodomy with a child qualified as strike priors under California law.
As discussed below, the sustained fear element of the criminal threat counts is supported by the record. Further, the evidence was sufficient to prove beyond a reasonable doubt that the prior Oregon convictions contained all of the elements required for a crime to be deemed a serious or violent felony in California. Accordingly, the judgment affirmed.

Appellant, filed a wrongful death action against respondents, State of California and Corcoran State Prison, alleging that respondents were negligent in the care, diagnosis and treatment of appellants husband while he was a prisoner. At trial, respondents moved to first try their immunity defense under Government Code section 844.6 (a public entity is not liable for an injury to a prisoner). The trial court found respondents were immune and entered judgment in their favor. Appellants motion for a new trial was denied. This appeal is from the order denying appellants application to amend the complaint. Appellant contends the court erred in finding that the Doe defendants had already been implicitly dismissed by appellant when, at the case management hearing, she failed to advise the court that additional parties might be added.
As discussed below, the trial court did not err when it denied appellants application to amend her complaint. Accordingly, the order affirmed.

In July 2004, appellant Kenneth Eagles was charged with four counts of unlawful sexual intercourse with a minor (Pen. Code, 261.5; counts 1 4) and one count of willfully failing to register as a sex offender ( 290, subd. (g)(2); count 5). In December 2004, pursuant to a plea agreement, the four counts of violating section 261.5 were dismissed and appellant pled no contest to the count 5 offense. In January 2005, the court suspended imposition of sentence and placed appellant on three years probation. The conditions of probation included that appellant serve one year in county jail and have no contact with Loretta T., the minor alleged to be the victim in the dismissed counts.On appeal, appellant contends 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 on count 5 based on circumstances in aggravation that were not found by a jury beyond a reasonable doubt. Court vacate the sentence and direct the court to proceed as set forth below.

On March 9, 2006, the trial court denied motions by appellant, Ana Alexandra Fuentes, to suppress, quash and traverse a search warrant. On March 21, 2006, Fuentes entered into a plea agreement in which she pled no contest to being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (e), count two) and maintaining a place for the sale of a controlled substance (Health & Saf. Code, 11366, count six).[1] Allegations that Fuentes possessed a controlled substance, was an ex-felon in possession of a firearm, and two misdemeanor allegations were dismissed. A prior prison term enhancement and an enhancement for being personally armed with a firearm also were dismissed. Under the terms of the plea agreement, a lid of three years eight months was placed on Fuentess prison term.
On April 3, 2006, the trial court sentenced Fuentes to the California Rehabilitation Center (CRC) for three years on count two plus a consecutive term of eight months on count six for a total term of three years eight months. The court imposed a restitution fine and granted Fuentes applicable custody credits.
The judgment is affirmed.

Appellant, the County of Kern (County), filed the underlying action against respondent, retired Kern County Sheriff Carl Sparks, for violation of the False Claims Act and negligent misrepresentation. The County alleged that Sparks falsely certified sheriffs department payrolls resulting in certain employees receiving unauthorized premium pay adjustments. At the conclusion of the Countys case in chief, the trial court granted Sparkss motions for nonsuit and a directed verdict.
The County contends the trial court erred. According to the County, there was sufficient evidence to support a verdict in its favor.
As discussed below, giving the Countys evidence all the value to which it is legally entitled, and indulging in every legitimate inference that may be drawn from the evidence, it must be concluded that the nonsuit/directed verdict motions should not have been granted as to the false claims cause of action. Sparks did not have the authority to give premium pay to a commander, and a reasonable jury could infer from the Countys evidence that Sparks acted recklessly when certifying that this unauthorized premium pay was proper. However, as a public employee acting in the scope of his employment, Sparks is immune from liability for negligent misrepresentation. Accordingly, the judgment reversed in part and affirmed in part.

After his motion to suppress evidence was denied, appellant pled no contest to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). He was sentenced to 16 months imprisonment. He filed a notice of appeal specifying that the sole ground for appeal was the denial of his motion to suppress evidence. (Pen. Code, 1538.5, subd. (m).) Court conclude that the motion to suppress was properly denied and therefore affirm the judgment below.

The court adjudged appellant, Bobby P., a ward of the court (Welf. & Inst. Code, 602) after Bobby admitted petition allegations charging him with petty theft (count 1 Pen. Code, 484, subd. (a)) and vandalism (count 2 Pen. Code, 594, subd. (b)(2)). On May 24, 2006, the court ordered Bobby to serve 15 days in juvenile hall, 15 days on the electronic monitor and placed him on probation on certain terms and conditions including certain gang conditions. On appeal, Bobby contends the court abused its discretion when it imposed gang conditions. Court affirm.