CA Unpub Decisions

Defendant appeals a judgment finding him incompetent to stand trial, contending that since his period of commitment has now exceeded the maximum term he could have served for his criminal cases, he should be released. Court affirm the judgment but remand to the superior court for further proceedings.

Court review a judgment of dismissal after demurrer, regarding the " Writ of Mandamus . . . and Motion for Summary Judgment" filed in 2005 in superior court by plaintiff and appellant Michael Anthony Lane (a California prison inmate). In his pleading (the complaint), Lane seeks relief against respondents California Department of Corrections and Rehabilitation (the Department) and Jeanne S. Woodford (together defendants) for their alleged mishandling of his claims regarding the sum of $797.60, representing reimbursement of amounts taken from his inmate trust account at another prison, to satisfy then - existing restitution orders, between 1995 and 2002. Previously, in 2004, Lane obtained a small claims court judgment in that amount, which was honored by defendants. (Lane v. Dept. of Corrections (Super. Ct. San Diego County, 2004, No. SC157217).)
The trial court sustained without leave to amend defendants' demurrer, stating that "plaintiff's complaint seeks to overturn the judgment of the small claims court ...... and as such it is specifically barred by Code of Civil Procedure section 116.710, subdivision (a). " Other grounds of demurrer were not reached and since no possibility of amendment to cure the defect existed, the matter was dismissed.
Plaintiff appeals, contending the superior court should have jurisdiction over the complaint, because his complaint could be considered to be enforcement of a postjudgment order, or the superior court should have recognized that the small claims court could have considered and ruled upon plaintiff's increased damages requests (for punitive damages), such that the small claims judgment should have been vacated pursuant to his motion. Further, plaintiff complains that the defendants failed to comply adequately with certain administrative procedures for obtaining a written release (regarding lost personal property appeals) from plaintiff. (Cal. Code Regs., tit. 15, S 3084.7, subd. (e).)
Court agree with the trial court that the complaint fails to state any cognizable claim for relief and it is barred by section 116.710, subdivision (a). The demurrer was properly sustained without leave to amend.

Father, the biological father of child, who was born in September 2005, appeals from an order of the dependency court terminating his parental rights. The mother of the child is not a party to this appeal.
Counsel for father has filed a no-issue brief under authority of In re Sade C. (1996) 13 Cal.4th 952 and People v. Wende (1979) 25 Cal.3d 436 setting forth a statement of the case and a statement of the facts. Counsel asks us to undertake an independent review of the entire record.
Father was afforded an opportunity to file a personal supplemental brief which court have received and considered.
Finding no arguable issues, court affirm the judgment.

On October 4, 2004, appellant pled nolo contendere in case No. PCF129598 to possession for sale of methamphetamine (Health & Saf. Code, S 11379, subd. (a), count one), driving with a blood alcohol level of .08 or higher (Veh. Code, S 23152, subd. (b), count three), and driving with a suspended or revoked license (Veh. Code, S 14601.1, subd. (a), count four). On November 9, 2004, a jury convicted Tapia in case No. VCF132057 of second degree robbery (Pen. Code, S 211, count one), corporal injury to a spouse or cohabitant (Pen. Code, S 273.5, subd. (a), count two), assault with a weapon likely to cause great bodily injury (Pen. Code, S 245, subd. (a), count three), misdemeanor vandalism (Pen. Code, S 594, subd. (a), count five), and a misdemeanor count of dissuading a witness from reporting a crime (Pen. Code, S 136.1, subd. (b)(1), count seven).
On December 9, 2004, the trial court sentenced Tapia to prison for the low term of two years for assault with a deadly weapon plus one year consecutively for corporal injury to a spouse. The court imposed concurrent terms of two years for the second degree robbery conviction and two years for possession for sale of methamphetamine. Appellant's total prison term is three years. The court imposed a restitution fine and granted applicable custody credits.
On appeal, appellant contends there was insufficient evidence to sustain his conviction for assault with a deadly weapon. Appellant further contends his trial counsel was ineffective for failing to move for acquittal and to sever unrelated counts.

This is an appeal from the denial of a petition filed by a federal inmate seeking to change his name from Timothy Wayne Arnett to August Damian Kokopelli.
"One's name is a signboard to the world. It is one of the most permanent of possessions; it remains when everything else is lost; it is owned by those who possess nothing else. A name is the only efficient means to describe someone to contemporaries and to posterity. When one dies it is the only part that lives on in the world. [Citation.]" (In re Marriage of Gulsvig (Iowa 1993) 498 N.W.2d 725, 730 (dis. opn. of Snell, J.).)
The order of the superior court denying appellant's petition for a legal name change is reversed and remanded for further consideration applying the correct legal standards.

On January 17, 2006, appellant stole approximately $3,500 from two women who were preparing to make a night deposit at a bank in Tuolumne County. As a result, a jury convicted him of second degree robbery (Pen. Code, S 211), and he was sentenced to the upper term of five years in prison. Defendant now appeals, claiming imposition of the upper term violated his constitutional rights. For the reasons that follow, court affirm.

Mother appeals from an order terminating her parental rights (Welf. & Inst. Code, S 366.26) to her infant son. Appellant contends the court erred: first, by denying her petition for modification (S 388); and second, by not finding termination would be detrimental to the child. On review, court affirm.

The parties have stipulated that a judgment granting attorney fees to the prevailing party in an anti-SLAPP action be dismissed in order to facilitate a settlement. This appeal is a companion to our appeal in G036053, which involves the same settlement.
Court accept the stipulation pursuant to Code of Civil Procedure section 128, subdivision (a)(8), and grant their request for a stipulated reversal. (Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1328; In re Rashad H. (2000) 78 Cal.App.4th 376, 381.)
The order granting attorney fees to defendant is reversed pursuant to the parties' stipulation, and the remittitur shall immediately issue when this opinion becomes final in this court. The parties to bear their own costs and fees in this action, including on appeal.

Plaintiff appeals from an order denying his petition to vacate an arbitration award entered in a dispute with his uninsured motorist insurance carrier, defendant Continental Insurance Company. Plaintiff contends that the court erred when, on the eve of arbitration, it ordered him to pay half of the arbitrator's fee. Appelllant further contends that the court erred when it refused to vacate the arbitration award based upon the supposed error in requiring him to pay this fee. Court unable to reach the merits of plaintiff's contentions because the order directing payment was a collateral order from which an immediate appeal would have lain. As a result, court lack jurisdiction to review it on appeal from the order denying his petition to vacate, and the appeal must be dismissed insofar as it concerns that order. Nor can error in the denial of his petition to vacate be predicated on supposed error in an earlier, appealable order from which no relief was sought by appeal or otherwise. Accordingly, to the extent court have appellate jurisdiction, the orders appealed from affirmed.

A jury convicted defendant of one felony count of possessing a controlled substance, ethamphetamine, (Health & Saf. Code, S 11377, subd. (a)) and one misdemeanor count of possessing drug paraphernalia (Health & Saf. Code, S 11364, subd. (a)). Right before the trial commenced, defendant made a Marsden motion to discharge appointed counsel. After a hearing, the court denied the motion. At trial, defendant admitted he had one prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, SS 667, subds. (b) (i); 1170.12) and had served a prior prison term (Pen. Code, S 667.5, subd. (b)).
The trial court sentenced defendant to four years in prison on the felony count (twice the mid-term because of the strike prior) and a concurrent term of six months on the misdemeanor count. The court struck the additional punishment for the prior prison term.
Defendant contends the trial court erred in denying his Marsden motion. Court affirm.

Appellant and respondent stipulated that attorney would be appointed temporary judge of the superior court to settle their marital dissolution action. After the settlement conference held March 7, 2005, the parties reached a settlement agreement that resolved a number of issues. A stipulated judgment incorporating the settlement agreement was entered by Temporary Judge Victor Castro (hereafter Judge Castro). Among other things, the judgment ordered Lynda to pay Andrew monetary sanctions in the amount of $33,000.
Lynda subsequently brought a motion to set aside the sanctions portion of judgment on the ground of attorney mistake and inadvertence, pursuant to Code of Civil Procedure section 473, subdivision (b). Andrew contended that the motion must be heard by Judge Castro. The trial court agreed, and issued an order of July 11, 2005, referring the motion to Judge Castro, who denied the motion on November 14, 2005.
On appeal, Lynda contends that the trial court erred in referring the motion to set aside the sanctions portion of the judgment to Judge Castro. She also contends that Judge Castro erred in denying the motion. For reasons that court explain, court find no error and therefore affirm.

Following the revocation of his probation, defendant was sentenced to prison and ordered to pay a $400 restitution fund fine. On appeal, defendant challenges the imposition of that fine, asserting that it was not part of his plea bargain. As explained below, court agree that the fine must be reduced to $200, the statutory minimum, though not for the reasons that defendant proffers. Defendant also asserts the need to correct the abstract of judgment, a point that the People concede. Court order the judgment modified and affirm it as modified.

Defendant pleaded no contest to possession of a controlled substance in prison (Pen. Code, S 4573.6) and was granted probation on the condition, among others, that she "not . . . associate with persons who traffic in or use controlled substances." Defendant's sole contention on appeal is that the condition is unconstitutionally vague because it does not contain a knowledge requirement. Court agree. Court modify the condition to add the necessary language and, as modified, affirm the judgment.

Petitioner attempted to file a request for appointment of counsel to investigate and prepare a motion for postconviction DNA testing as allowed by Penal Code section 1405. For unexplained reasons, the superior court failed to file his motion and returned it to him instead. Petitioner has sought relief in this court by way of a petition for writ of mandate. Court issue a peremptory writ in the first instance directing the respondent court to file petitioner's motion and to consider its merits.
Petitioner has also filed a motion in this court, asking this court to directly appoint counsel for DNA testing. Court deny the motion.