CA Unpub Decisions

Defendant Eduardo Oviedo Alamillo appeals his conviction for felony second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] stemming from his removal of two packages of beer from a market in Watsonville. Defendant’s only contention on appeal is that there was insufficient evidence of taking the beer by force or fear to support the robbery conviction. For the reasons stated here, we will affirm the judgment.

A modification decision.

San Jose Cannabis Buyer’s Collective LLC (SJCBC) and David Hodges (collectively defendants) operated a medical marijuana dispensary on premises Hodges leased from Steve Becerra doing business as Oxbridge Properties (Becerra). The City of San Jose (City) issued a compliance order (Order) stating that defendants’ medical marijuana dispensary constituted a nuisance and violated the City’s zoning regulations. When defendants continued to operate the medical marijuana dispensary despite the Order, Becerra filed suit. Defendants failed to answer Becerra’s amended complaint, and the clerk entered default against them. The trial court later entered default judgment against defendant Hodges only.
Defendants appeal from the trial court’s denial of their motion for relief from the default judgment. They claim the default was the result of their attorney’s mistake, such that the relief was mandatory under Code of Civil Procedure section 473, subdivision (b).[1] Defendants also argue that discretionary relief from default was warranted under section 473 because their attorney’s excusable neglect caused the default.
We dismiss SJCBC’s appeal because no default judgment was entered against it, and an order denying a motion to vacate a default is not independently appealable. We determine that Hodges’ request for discretionary relief was untimely. Finally, with respect to Hodges’ request for mandatory relief, we conclude the trial court did not err by finding that Hodges failed to show that attorney error caused the default. Accordingly, we shall affirm.

Petitioner Edward Ali Ayache was convicted of murder (Pen. Code, § 187, subd. (a); all undesignated statutory references are to the Penal Code) carried out for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)), active participation in a criminal street gang (§ 186.22, subd. (a)), and two counts of attempted murder (§§ 187, subd. (a), 664, subd. (a)). The jury found the murder and attempted murders were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), that Ayache personally discharged a firearm causing death (12022.53, subd. (d)) in connection with the murder, and that he personally discharged a firearm in connection with the attempted murders. Those offenses occurred on November 18, 2000. The jury also found Ayache guilty of three offenses alleged to have occurred on January 9, 2009: possession of a loaded firearm by a felon (§ 12021, subd. (a)(1)), active participation in a criminal street gang (§ 186.22, subd. (a); count six), and a misdemeanor, resisting or delaying a law enforcement officer (§ 148, subd. (a)).

Defendant David Ignacio Delena, Jr., molested his two stepdaughters. A jury convicted defendant of two counts of continuous and substantial sexual abuse of a child under the age of 14 with special allegations for multiple victims. (Pen. Code, §§ 288.5, subd. (a), and 667.61, subds. (b) and (e).)[1] The trial court sentenced defendant to two consecutive indeterminate prison terms of 15 years to life with the possibility of parole.
On appeal, defendant seeks to have the case remanded for resentencing. We affirm the judgment but remand the matter for resentencing on count 1 and for the court to exercise its discretion as to whether the sentences should be consecutive.

Defendant Ron Dwayne Martinez admitted he killed his girlfriend, Karyn Kleine, and dumped her body in the desert. A jury found defendant guilty of second-degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to a prison term of 15 years to life.
On appeal, defendant challenges the admission of testimony from two of his former girlfriends; the absence of a limiting instruction about Kleine’s nonhearsay statements; and the court’s prohibition on the testimony by Kleine’s former boyfriend. Defendant further asserts cumulative error violated his rights to due process and a fair trial justifying reversal of his murder conviction. We conclude there was no prejudicial error and no cumulative error and affirm the judgment.[1]

The trial court entered a default judgment totaling over $300,000 in favor of Carol Benassi (Benassi) and against her former business partner, JWN, Inc. (JWN). On appeal, JWN raises several arguments to support its theory the judgment is void. We conclude one has merit; the trial court lacked authority to strike JWN’s answer to the cross-complaint and enter its default simply because JWN failed to appear for trial. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857.) For this reason, the judgment is void on the face of the record and must be reversed and remanded.

The Anaheim Union High School District (the District) appeals from a judgment confirming an arbitration award in favor of the American Federation of State, County and Municipal Employees, Local 3112, AFL-CIO (the Union). The District contends the court was required to vacate the arbitration award because the arbitrator exceeded his powers when he ruled that the District violated the collective bargaining agreement between the parties by reducing the work year of certain classified employees without the consent of the Union and the employees. We affirm the judgment.

On April 4, 2011, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant, Ruby C., committed two counts of assault with a deadly weapon by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), counts 1 & 2).[1] It was further alleged that appellant inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), the offense was a serious felony (§ 1192.7, subd. (c)(8)) and a violent felony (§ 667.5, subd. (c)(8)). At the conclusion of a contested jurisdiction hearing on July 19, 2011, the allegations were found to be true. At the disposition hearing on August 8, 2011, the juvenile court ordered that appellant spend 365 days in custody with credit for 126 days. Appellant was placed on probation and ordered to pay direct victim restitution of $4,493.47.
On January 23, 2013, a petition was filed pursuant to Welfare and Institutions Code section 777, alleging that appellant failed to obey the lawful directives of her parent/guardian and the probation officer, failed to obey curfew, failed to refrain from possessing gang clothing, failed to attend school and obey school rules, possessed a dangerous/deadly weapon, was found in possession of marijuana, and failed to obey the law by violating section 148, subdivision (a)(1). On March 13, 2013, appellant admitted the allegations.
On March 27, 2013, after considering all of the less restrictive alternatives for placement, the juvenile court ordered appellant’s confinement with the Division of Juvenile Justice (DJJ). The court set appellant’s maximum term of confinement at five years and found she had 536 days of custody credits. Appellant was ordered to pay her victim restitution fine and an additional restitution fine of $100.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

This case arises out of an altercation between members and friends of two families who lived in the 4600 block of East Turner Avenue, Fresno.[1] As of June 2009, Maria Arceli Mendez (Arceli) and her husband, Jose Mendez (Jose), lived at 4677 with their children, who included Esmeralda Mendez (Esmeralda), Jose Balderas, Ruben Balderas (Ruben), and Josue Balderas (Josue). The Salas family lived at the two addresses directly east of the Mendez residence. Benito Sanchez Salas (defendant), his daughter, and Rebecca Hernandez (Hernandez) lived in the guest house at 4681, next door to the Mendez home. Defendant’s father Alberto Salas, Sr. (Alberto), mother Maria Nativad Sanchez (Maria Nativad), and brother Jose Salas (Sam) lived in the main house at that address. Defendant’s brother Antonio Sanchez Salas (Antonio) and Antonio’s son Junior Jesse Salas (Junior Jesse) resided at 4687, the house immediately east of 4681. Defendant’s brother Fabian Salas (Fabian) was staying at 4687 at the time. Defendant also had three other brothers: Miguel Salas (Miguel), Alberto Salas, Jr. (Junior), and Santos Salas (Santos).

On the evening of October 12, 2012, the victim went to a party at her friend William Bishop’s residence with her brother, sister, and another friend. Around 10 people were at the party; they were drinking for several hours and playing drinking games. At some point during the evening Bishop cut off the victim’s consumption of alcohol because he believed she had drank too much; he carried her to his bedroom where he placed her on the bed.
The victim testified she was intoxicated and fell asleep. She awoke to find defendant having sexual intercourse with her; her pants were down to her ankles. Her brother walked into the bedroom. Defendant began digitally penetrating the victim. The victim informed defendant she had to check on her brother; she got up and walked out of the bedroom.

Father appeals from orders of the juvenile court involving an infant son, J.O., born in November 2012 and who has been placed with mother. Father and mother are also the parents of a daughter, Ja.O., who was born in 2007 and has been adopted. Mother has another daughter, A.M., born in 2002, who is in her father’s custody.
Father contends insufficient evidence supports the juvenile court’s jurisdictional and dispositional findings and the court abused its discretion by denying him reunification services. We reject father’s contentions and affirm the judgment.

Defendant David Ignacio Delena, Jr., molested his two stepdaughters. A jury convicted defendant of two counts of continuous and substantial sexual abuse of a child under the age of 14 with special allegations for multiple victims. (Pen. Code, §§ 288.5, subd. (a), and 667.61, subds. (b) and (e).)[1] The trial court sentenced defendant to two consecutive indeterminate prison terms of 15 years to life with the possibility of parole.
On appeal, defendant seeks to have the case remanded for resentencing. We affirm the judgment but remand the matter for resentencing on count 1 and for the court to exercise its discretion as to whether the sentences should be consecutive.

Defendant Ron Dwayne Martinez admitted he killed his girlfriend, Karyn Kleine, and dumped her body in the desert. A jury found defendant guilty of second-degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to a prison term of 15 years to life.
On appeal, defendant challenges the admission of testimony from two of his former girlfriends; the absence of a limiting instruction about Kleine’s nonhearsay statements; and the court’s prohibition on the testimony by Kleine’s former boyfriend. Defendant further asserts cumulative error violated his rights to due process and a fair trial justifying reversal of his murder conviction. We conclude there was no prejudicial error and no cumulative error and affirm the judgment.[1]