CA Unpub Decisions

Pending resolution of this appeal, the parties settled the action and filed a Joint Application For Order Transferring Jurisdiction Over Matter to Trial Court to Vacate Judgment. By letter to this Court dated December 20, 2006, the parties clarified their requested disposition of the appeal: "The intent of the parties is to return the matter to a pre judgment status and then dismiss the underlying action with prejudice. Furthermore, as part of the settlement, the parties have agreed to bear their own costs on appeal." By letter to this Court dated January 4, 2007, the parties informed the Court that " all conditions precedent to vacating the judgment have been satisfied."
Code of Civil Procedure section 128, subdivision (a)(8) provides, in part: " An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following:
" (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal.
" B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement."
This Court finds the conditions for a stipulated reversal have been satisfied and we therefore reverse the judgment and remand the matter to the trial court with directions to dismiss the action with prejudice.

In a 1975 marital dissolution judgment, the court ordered the government pension benefits of Arthur F. Schmitt, Jr., be divided with his former wife, Mildred McCarty, and, by a 1978 modification of that judgment, directed that McCarty receive approximately 41 percent of the gross pension when Schmitt retired. Schmitt was also ordered to provide an annual verification to McCarty of the total pension amounts received by Schmitt during the prior year. Schmitt subsequently directed the government to pay directly to McCarty $626 per month as her court-ordered share of the pension, and in 1984 those payments increased to $798 per month.Schmitt appeals the findings that McCarty's claims were not time barred or, in the alternative, were not based on an expired judgment. McCarty appeals, asserting the court erred by applying laches to reduce her claim.
The order is affirmed.

A modification decision.

Acting warden of Calipatria State Prison (CSP), Stuart Ryan (Warden), appeals an order granting a petition for writ of habeas corpus filed by Edward Dwayne Ashford, an inmate at CSP, seeking a "right to access legal materials as interstate compact prisoner." The superior court ordered that CSP provide him the materials sought, including free internet resources such as < http.://www.findlaw.com/> . Warden contends the court exceeded its jurisdiction in crafting such an order because Ashford's writ petition did not specifically seek relief in the form of internet access, and CSP did not have an opportunity to brief this issue. Court affirm in part and reverse in part with instructions.

The juvenile court declared minor a ward (Welf. and Inst. Code, S 602) after entering a true finding that he committed two counts of misdemeanor vandalism. (Pen. Code, S 594, subds. (a), (b)(2)(A).) The court placed him on probation including a condition he perform 40 hours of community service. Minor contends there is insufficient evidence to sustain the true findings.
The juvenile court's order declaring minor a ward is affirmed.

Appellant appeals an order denying his petition under Welfare and Institutions Code section 388 seeking to vacate the permanency planning hearing under Welfare and Institutions Code section 366.26 and to reinstate reunification services. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
Appellant's counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

A.P. appeals a judgment made at a permanency planning hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
A.P.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.The appeal is dismissed.

A jury convicted Defendant of involuntary manslaughter (Pen. Code, S 192, subd. (b)), during which he used a firearm. (Pen. Code, S 12022.5, subd. (a).) Defendant was sentenced to prison for seven years and appeals, claiming the trial court erroneously excluded certain evidence. Court reject his contention and affirm, while directing the trial court to make a notation on the verdict form and amend the abstract of judgement.

A jury convicted defendant of robbery (Pen. Code, S 211) and second degree burglary (S 459). The jury also found true that defendant had a previous felony conviction in 1977, within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). The court sentenced defendant to a total term of imprisonment of 10 years, which was composed of the upper term of five years in state prison on the robbery conviction, doubled to 10 years under the "Three Strikes" law. The court also imposed the upper term of three years on the burglary conviction, but stayed it pursuant to section 654.
On appeal, defendant contends that: 1) there was insufficient evidence to support the finding that he was the named person in the court documents presented as proof of his previous conviction; and 2) the court erred in imposing the upper terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court affirm.

Defendant appeals judgment entered against him after the court discharged a juror for failing to deliberate. After the trial court replaced the holdout juror, the jury convicted defendant of robbery. Court conclude the trial court abused its discretion by discharging the juror. The record establishes that the discharged juror deliberated for a reasonable period of time and her discharge constitutes prejudicial error.
Defendant's remaining contentions, in which he raises evidentiary challenges, are moot since court reverse the judgment on the ground the trial court committed prejudicial error in excusing the holdout juror.

This appeal involves the propriety of an aggravated sentence -- an additional one year that has already been served -- imposed after a contested probation revocation hearing.
Defendant appeals, challenging the use of the upper term. Court also consider a related petition for writ of habeas corpus. (E040609.) Court conclude the trial court erred in its use of the upper term. But court cannot hold there was ineffective assistance of counsel as urged by defendant because a more favorable outcome was not reasonably probable. Court affirm the judgment on appeal and deny the petition.

Plaintiffs appeal from a judgment entered in favor of defendants after their motion for summary judgment was granted. The Plaintiffs claim that the trial court erroneously granted summary judgment on a ground not raised by LMI's motion. They also claim that they produced evidence demonstrating a triable issue of material fact whether LMI negligently interfered with their prospective economic advantage. Court affirm.

Born December 1987, appellant is now 18 years old. His most recent arrest, in August 2005, resulted in his being charged with carrying a loaded weapon for the benefit of a gang. Appellant contends that the finding that he carried the weapon for the benefit of his gang is not supported by sufficient evidence of the specific intent required by Penal Code section 186.22, subdivision (b)(1). Court agree and reverse the gang enhancement.

Plaintiffs appeal from the trial court's judgment dismissing plaintiffs' complaint against defendants RMA Group, a geotechnical consulting firm, and geologists Gary Wallace and Elvis Duane Lyon after sustaining their demurrer to plaintiffs' second amended complaint. Plaintiffs purchased a lot from Long Pham and Hoa Pham, relying on representations that the property was graded properly and ready to build on. The lot, however, required additional grading and, as a consequence, new architectural plans. Plaintiffs filed an action against the Phams, their realtors, RMA, and other defendants. RMA filed a demurrer on various grounds, including that the 10-year statute of limitations barred plaintiffs' causes of action. RMA had performed its analysis and produced a grading report about 12 years before plaintiffs filed the current action.
On appeal, plaintiffs argue that the statute of limitations does not apply because RMA's conduct amounts to intentional misconduct or fraudulent concealment under Code of Civil Procedure section 337.15, subdivision (f). Because plaintiffs failed to state an adequate claim for fraud, court conclude that the trial court properly sustained the demurrer based on the 10-year statute of limitations.