CA Unpub Decisions

A jury convicted defendant of reckless driving to evade an officer and burglary. The court suspended imposition of sentence and placed him on probation for three years, including a condition he serve 365 days in custody. Defendant appeals requesting the court to independently review the record. Judgment affirmed.

Defendant entered negotiated guilty pleas to one count of forcible lewd and lascivious conduct with a minor under the age of 14 years and one count of oral copulation upon an unconscious minor under the age of 14 years. The court denied a motion to withdraw the guilty pleas and sentenced defendant to prison for the eight-year upper term on each count to run concurrently. Defendant appeals requesting the court to independently review the record. Judgment is Affirmed.

Appellants appeal judgments of the juvenile court terminating parental rights to their children, under Welfare and Institutions Code section 366.26. Appellant also appeals a judgment terminating his parental rights to his child. Court affirmed the judgments.

The mother of minor, appeals following the juvenile dependency court's six-month review hearing held pursuant to Welfare and Institutions Code section 366.21. Mother contends the court erred by finding she received reasonable reunification services and by finding the Indian Child Welfare Actdid not apply. Mother also contends the court and the San Diego County Health and Human Services Agency had a duty to review the birth records of minor's father, and obtain information necessary to provide ICWA notice. Court affirmed.

Defendant entered a negotiated guilty plea to robbery, admitted personally using a firearm, a prior strike, and two prior serious felony convictions. The court sentenced him to a stipulated 20 years in prison. Defendant requested the court independently review the record. Judgment affirmed.

In 1985, defendant was found not guilty by reason of insanity to a charge of assault with intent to rape. Defendant was committed to Patton State Hospital (Patton) for six years. The commitment was extended in 1990, 1992, 1994, and 1996. In 1998, he was placed in a conditional release program known as CONREP. Defendant relapsed into alcohol and marijuana use. In January 2004, his conditional release was revoked and he was readmitted to Patton State Hospital (Patton). In November 2005, the People petitioned to extend defendant's commitment to Patton for two years. In February 2006, Jones petitioned for release from Patton on the ground he would not be a danger to others if released. Both counsels waived jury. After hearing witnesses, the court granted the People's petition and denied defendant's petition.

Following a jury trial, defendant was convicted of evading a police officer (count 1), driving under the influence of alcohol (count 2), and driving with a blood alcohol greater then 0.08 percent (count 3). The trial court later found true that defendant had suffered four prior prison terms. Defendant was sentenced to a total term of six years in state prison. On appeal, defendant contends (1) the trial court prejudicially erred in failing to instruct the jury sua sponte that reckless driving is a lesser included offense of felony evading a police officer, and (2) the trial court erred in imposing a fee for the cost of the presentence probation report without conducting a hearing on his ability to pay or taking a knowing and intelligent waiver of such a hearing. Court rejected these contentions and affirmed the judgment.

The Indian Child Welfare Act requires that notice of a state court juvenile dependency proceeding be provided to any Native American tribe with which the child may be affiliated, or to the Bureau of Indian Affairs if the tribe is not known. Federal guidelines, the California Rules of Court, and California case law require that any notice provided be filed with the juvenile court.
In the present case, proper notices were given but were not filed with the court. Notwithstanding that fact, the juvenile court found the ICWA did not apply to the case and terminated the parental rights of the mother of the subject minor child.
Court conclude: (1) the juvenile court should have required filing of the notices before finding the ICWA did not apply; (2) the failure to file the notices could be, and was, cured by the filing of the notices after this appeal was filed; (3) the notices satisfied the ICWA requirements; and (4) therefore, the court’s error was harmless.

Petitioner is the defendant in an action filed by real party in interest Palm Associates (Palm) to collect payment for Palm’s software development services. The superior court issued a right to attach order that included a provision requiring petitioner to turn over all of its computer equipment to the levying officer. Petitioner filed a petition for writ of mandate challenging the validity of the turnover order on the ground that a turnover order is not authorized for the property of a going business. This court issued a temporary stay of the turnover order and requested preliminary opposition from Palm. The parties subsequently entered into a stipulation and proposed order in which they agreed that the turnover order would have no force and effect and that petitioner had no obligation to transfer possession of its computer equipment. Thus, Palm has implicitly conceded that the writ relief sought by petitioner should be granted. Court found the concession appropriate and that no purpose could reasonably be served by plenary consideration of the issue. Therefore, court issued a peremptory writ in the first instance directing the superior court to vacate the turnover order.

A jury convicted defendant of robbery of an inhabited building, theft or unauthorized use of a vehicle, and false imprisonment. Enhancement allegations for personal use of a firearm were found true. The trial court found true the allegations concerning a prior Texas robbery conviction, and found that conviction qualified both as a strike and a serious felony. Defendant appeals. The judgment is affirmed, except that the true findings as to the allegations that defendant suffered a prior Texas robbery conviction pursuant to (1) the Three Strikes law and (2) section 667, subdivision (a)(1), are reversed. The sentence is vacated, and the matter is remanded for a retrial as to the allegations concerning the prior Texas robbery conviction and for resentencing.

Appellant a real estate broker, was a dual agent for both the buyer and the seller in the sale of residential property in Carmel. Appellant subsequently acquired title to the property and sued the seller, for breach of contract and fraud due to alleged misrepresentations by Barker about the condition of the property. After Barker passed away, respondent, the executor of Barker’s estate, obtained summary judgment on the grounds that Beutel was not a party to the real estate contract between Barker and the buyer and that Barker did not make any representations that were intended to induce appellant, to buy the property. The court also awarded the executor $16,837.50 in attorney fees.
On appeal, appellant contends the court erred in granting summary adjudication of the fraud cause of action and hence the summary judgment because this case involves indirect fraud or deception, which does not require contractual privity. Appellant alleges that under the Restatement Second of Torts, section 533, he was not required to prove that Barker intended that her misrepresentations or concealment be relied on by Beutel. Court concluded that this is not a case of indirect deception within the meaning of section 533 and that the court did not err in granting summary judgment. Court also affirmed the trial court’s order awarding attorney fees to the executor.

Appellant petitions for a writ of mandate to vacate an order setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Appellant argues the evidence is insufficient to support findings that it would be detrimental to return the child to her care and that reasonable services were offered to her. Court disagreed and denied the petition.

Defendant was convicted of possessing a firearm while a felon and street terrorism. The jury also found true an enhancement allegation that he committed the firearm offense for the benefit of a criminal street gang. Defendant contends there is insufficient evidence his conduct was gang related, he was improperly convicted of both a greater and lesser included offense, and his sentence for street terrorism should be stayed under Penal Code section 654. Court agreed with his sentencing claim but affirmed the judgment in all other respects.

Appellant appeals from the trial court’s denial of his petition to compel arbitration of the dispute in the instant case. Although enforcement of arbitration agreements is favored, respondents contend that denial of the arbitration petition was appropriate in this case, for three reasons. First, they argue that no enforceable arbitration agreement was entered into, as the purported agreement was contained in a document not signed by any party. Second, they argue that several of the claims asserted do not fall within the scope of those agreements. Third, the Edlers assert Robson waived any right to compel arbitration by participating in proceedings before the trial court. Court found none of these contentions persuasive. The court’s order denying his petition to compel arbitration is reversed.