CA Unpub Decisions

Pursuant to a negotiated plea agreement, appellant pled no contest to assault with a deadly weapon. The trial court granted the People’s motion to dismiss the balance of the information. The court, finding factors in aggravation outweighed those in mitigation, and sentenced appellant to the upper term of four years in state prison. Appellant’s sole contention on appeal is that the imposition of the upper term deprived him of his federal and state constitutional rights to a jury trial guaranteed by the Sixth Amendment and his right to due process guaranteed by the Fourteenth Amendment. Court disagreed with his contention and affirmed the judgment.

In a complaint filed in Tuolumne County Superior Court (limited jurisdiction), petitioner was charged with misdemeanor violation of Vehicle Code section 23152, subdivision (a) (count 1), and violation of section 23152, subdivision (c) (count 2). Two prior convictions were alleged pursuant to sections 23540 and 23542 and/or sections 23546 and 23548: violation of section 23152, subdivision (a) on October 15, 1996; violation of section 23152, subdivisions (a) and (b) on August 11, 1999. The present petition was filed on July 26, 2006. On August 4, 2006, this court issued the following order:
“Sentencing in Tuolumne County Superior Court action No. CRM20426, presently set for August 8, 2006, is stayed pending determination of the petition for writ of mandate in the above entitled action, or until further order of this court.”
Petitioner argues respondent erred in denying the petition for writ of mandate filed with the appellate division of the superior court because he ruled in his capacity as a single superior court judge, rather than as a member of an appellate division panel. Court agreed. Court held that Petitioner is entitled to appropriate relief. A peremptory writ of mandate is proper and should be issued.

A modification decision.

Court concluded the appeal of father from an interlocutory award of past due child support to his former wife, mother, should be dismissed because it was prematurely filed. At the time the notice of appeal was filed, the amount due had not been calculated by the Orange County Department of Child Support Services (DCSS) as ordered by the court. During the pendency of the appeal the amount was determined and is the subject of father’s motion to augment the record. However, both parties dispute the amount and would have requested a hearing on the issue had the case not been on appeal, which one or both parties believed deprived the court of jurisdiction. This and the language of the court’s order requiring the DCSS accounting show that the order is not final. Court therefore denied the motion to augment the record.
Mother filed a motion to dismiss, arguing primarily that the appeal is too late, and, only as a fallback position, that it is premature. Court determined the appeal was premature and dismissed on that basis.

A jury convicted of one count of assault with a deadly weapon. Defendant contends the trial court’s pretrial comments to potential jurors infected the venire and the court violated his right to an impartial jury by denying his motion to dismiss the panel. Defendant also claims the trial court’s failure to give a unanimity instruction created a risk the jury convicted him without agreeing which of his acts constituted assault. Finally, the Attorney General agrees with defendant’s claim that the abstract of judgment is erroneous and the trial court erred by not awarding him credit for good conduct. The court found defendant’s substantive contentions unpersuasive, but remanded for correction of the abstract of judgment and consideration of good conduct credits.

Appellant, a resident of Arkansas, sued respondent a Delaware corporation with its principal place of business in North Carolina, (Nucor) for personal injuries that occurred in California but were caused by the alleged negligence of one of respondant’s subsidiary companies or divisions in Utah. On appeal, Appellant challenges a trial court order granting respondant’s motion to quash service of summons for lack of personal jurisdiction. Court found no error and affirmed.

Appellant was charged in counts 1 and 3 with making criminal threats and in count 2 with misdemeanor battery. Jury found appellant not guilty of count 1, but guilty of counts 2 and 3. Appellant appeals only as to count 3, contending that the court erred when it failed to give an instruction on jury unanimity sua sponte and did not require the prosecutor to elect which facts it intended to rely on in proving a violation of section 422. Court agreed and reversed.

Appellant appeals from orders of the trial court dismissing the action, terminating the guardianship ad litem that had been established for her, and denying a motion for a new trial. Appellant believes the trial court erred procedurally and substantively when it appointed the guardian ad litem. It would appear that appellant feels offended that a guardian ad litem was appointed, because, she states, she was at all times mentally and physically competent.
Court affirmed.

This consolidated appeal is the subject of the pending motion to dismiss, U.S. Bank National Association (the bank) appeals from four orders issued by the probate court authorizing conservators, as coconservators of the estate of Elizabeth G. Jamerson, to use the proceeds from the sale of property in San Francisco to purchase property in Tulsa, Oklahoma, as part of a tax-deferred exchange. The bank contends it held an equitable lien against the San Francisco property and that the probate court erred in authorizing use of the sale proceeds to purchase the replacement property without first determining its right to assert a constructive trust over those funds. The conservators assert in their brief and in a separate motion upon which court now rule that the consolidated appeal is moot. Court agreed and, thus, dismissed the appeal.

In this consolidated appeal, defendants appeal from an order terminating their parental rights to their three children and Star’s parental rights to a fourth child by a different father. Appellant contends the juvenile court erred (1) in failing to consider the children’s wishes with regard to the termination of parental rights; (2) in concluding that the parental exception to termination did not apply; and (3) in failing to appoint a separate attorney to represent the nine-year-old child because her interests conflicted with the interests of the younger children. Appellant also contends that she did not receive the social worker’s assessment report in a timely manner and that she was given incorrect notice of the location of the termination hearing. Appellant asserts that there is no substantial evidence to support the court’s finding that the children were likely to be adopted. Court affirmed.

Counsel for appellant has filed an opening brief in which no issues are raised and asks this court for an independent review of the record. Respondent petitioned to extend the commitment of appellant as a sexually violent predator. Appellant waived a probable cause hearing, as well as a jury trial. A bench trial was held and the court found that appellant was likely to reoffend and should be recommitted. The court set the maximum commitment date. Appellant filed a timely notice of appeal. Upon independent review of the record court concluded there are no meritorious issues to be argued or that require further briefing on appeal.

Defendant has filed an appeal from the order compelling him to submit to DNA testing. Appellate counsel has submitted a brief raising no issues and asking this court to conduct an independent review. Counsel includes an issues statement, as authorized by Anders, supra, at page 744, essentially directing the court to the contentions made by defendant’s trial counsel.
Court thoroughly reviewed the record and found no arguable issues. The judgment is affirmed.

Defendant pleaded no contest to second degree burglary and admitted a prior strike allegation. Pursuant to a plea bargain, additional charges were dismissed. Defendant’s appellate counsel has filed a brief and asks this court to review the trial court proceedings. Court agreed with counsel that there were no issues that warranted briefing. Court affirmed the judgment.

Appellant appeals from a judgment entered in favor of respondent Professional Engineers in California Government - Los Angeles Section, a labor union, after a court trial.
Appellant contends that: (1) she did not receive a fair trial due to inadequate representation by counsel; (2) the trial court did not afford her due process; (3) the trial court abused its discretion and committed prejudicial error in ruling that she had not been deprived of her right to counsel; (4) the trial court abused its discretion and committed prejudicial error in failing to find that respondent discriminated against her on the basis of gender or national origin under Government Code section 12940; (5) the trial court abused its discretion in ruling that appellant suffered no economic loss in her removal as president-elect and that emotional distress damages were not recoverable; and (6) the trial court abused its discretion and committed prejudicial error in failing to recuse itself. Court affirmed.