CA Unpub Decisions

Petitioner Sherri Matza and real parties in interest Edward Murphy and Michael Joseph O’Donoghue were partners who jointly owned a multi-unit residential property (the Faxon property). Matza and O’Donoghue are both defendants and cross-complainants in Murphy v. Matza, San Francisco Superior Court Case No. CGC-06-457921, which has been consolidated with other cases below. Murphy’s complaint against them sought the partition of the Faxon property and requested that the ownership percentages of each of the three partners be determined. Among her affirmative defenses, Matza asserted that she is entitled to an accounting of revenues and expenses during Murphy’s management of the property. O’Donoghue also raised affirmative defenses claiming that he is entitled to a greater share of the property because of offsets. Both Matza and O’Donoghue also filed cross-complaints seeking adjustments to Murphy’s share of the Faxon property.

D.C., mother of E.A., who is now just over six years old, petitions under California Rules of Court, rule 8.452 to vacate an order setting a selection and implementation hearing for E.A. pursuant to Welfare and Institutions Code section 366.26 (hereafter § .26).[1] The principal issue is whether the court had sufficient evidence on which to conclude that Mother received reasonable reunification services and there was no real prospect for reunification within the statutory period. The record shows that Mother was provided years of services to address her alcohol problem and its effects on E.A. We deny the petition.

A modification decision.

This litigation arises from the failure of a start up company, Demeter Energy Corporation (Demeter), and a falling out between the members of its board of directors. Demeter commenced litigation against appellant Scott Smith, one of the three directors, and other entities not involved with this appeal. Smith and a related entity, Mix Sonoma, filed a first amended cross-complaint against the other two directors, respondents Scott Buoy and Wendell Brown, and Demeter, which is also not a party to this appeal. Buoy and Brown successfully demurred to the first amended cross-complaint. Brown successfully demurred to a single cause of action in Smith’s second amended cross-complaint. The trial court denied leave to amend and entered judgments of dismissal for Buoy and Brown. Smith and Mix Sonoma claim they have successfully pleaded causes of action for breach of fiduciary duty and violation of Corporations Code section 25401. We agree and reverse.

Counsel for defendant originally filed a Wende appeal, i.e., a brief that, pursuant to People v. Wende (1979) 25 Cal.3d 436, stated the case and facts but raised no issues. We notified defendant of his right to submit written argument on his own behalf. He did not do so.
After the time to receive any reply from defendant himself had expired, we reviewed the record as required by People v. Wende, supra, 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106. When we undertook this review, we noticed a number of questionable probation conditions and sought supplemental briefing from the parties.
We will modify certain probation conditions and, with those modifications, affirm the judgment.

Defendant Octavio Hernandez appeals after pleading no contest to second degree robbery. (Pen. Code, § 211.) [1] He was sentenced to the five-year upper term.
On appeal, defendant contends that the trial court abused its discretion by imposing the upper-term sentence. For the reasons stated below, we will affirm the judgment.

Defendant Miguel Angel Gonzalez was convicted by jury of possession of a weapon by a prisoner. (Pen. Code, § 4502, subd. (a).)[1] Defendant admitted two prior strike convictions, and the trial court subsequently sentenced him to an indeterminate term of 25 years to life pursuant to the Three Strikes law.
On appeal, defendant contends that he received ineffective assistance of counsel because his trial counsel failed to bring a posttrial Romero[2] motion on his behalf based on his changed circumstances, including his disassociation from his gang, and that the trial court abused its discretion during the sentencing hearing by failing to realize that it possessed the power to dismiss prior convictions despite its earlier denial of his pretrial Romero motion. Defendant additionally argues that he is entitled to automatic resentencing under Proposition 36, the Three Strikes Reform Act of 2012, a voter initiative that amended sections 667 and 1170.12 and added section 1170.126. We affirm the judgment.

A jury convicted defendant Zosimo Julian Santiagovictoria of four felony counts related to the sexual molestation of his five-year-old niece (M.). Defendant argues on appeal that he was denied due process of law because the trial judge did not recuse herself from ruling upon M.’s competence to testify at trial after having ruled upon the same issue at the preliminary hearing 18 months earlier. He also argues, on both constitutional and statutory grounds, that the trial court erred in admitting into evidence M.’s preliminary hearing testimony and her pretrial interview with law enforcement. Finding no error, we shall affirm.

An information filed on May 16, 2008, charged Dana Kovacevich (appellant) with one count of assault on a child with force likely to produce great bodily injury resulting in death (Pen. Code, § 273ab, count one, hereafter child abuse homicide)[1] and one count of murder (§ 187, count two).[2]
Following a jury trial, appellant was found guilty as charged. Subsequently, the court sentenced him to 25 years to life in prison on count one and 15 years to life on count two. The court stayed the sentence on count two pursuant to section 654. Appellant filed a timely notice of appeal.
On appeal, appellant raises numerous issues related to the trial court proceedings, which we will outline later. In addition, he asks that we independently review the material considered by the trial court at an in camera Pitchess hearing.[3] For reasons that follow, we affirm the judgment.

Following his conviction for grand theft, appellant Anthony Nunez was ordered to pay restitution to the victim jointly and severally with his brother and codefendant Phillip Nunez.[1] Anthony argues he was less blameworthy than his brother, and therefore he should only have to pay restitution in proportion to his culpability. We disagree and affirm the judgment.

This gang confrontation and shooting case raises a single issue, centered on whether the trial court had a sua sponte duty to instruct the jury based on a recondite statement in People v. Garcia (2008) 162 Cal.App.4th 18, 31, that “an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.” (Italics added; see also id. at p. 22 [same statement in introduction of opinion].)
The answer is no. Whatever mysteries are inherent in Garcia’s “at least” comment, they have no application to the case before us. Garcia was a highly unusual case in which a gun was not used as a gun, but as a blunt instrument: the victim was hit in the face with its butt, fell to the sidewalk and died of head trauma. The Garcia court affirmed the conviction as against the defendant’s argument that he was entitled to instructions on involuntary manslaughter, but its task was made difficult by the semantic anomaly that the use of the butt of a gun as a blunt instrument made the crime, literally, an “assault . . . with a firearm,” hence an “inherently dangerous felony.” (Garcia, supra, 162 Cal.App.4th at p. 22.) This case, by contrast, presents a semantically clean set of facts: Martinez fired into a crowd. His attorney argued he was acting rashly because of the heat of passion given a sudden quarrel (the crowd was group of rival gang members intent on doing him harm), and therefore could be convicted only of voluntary manslaughter. But the jury found him guilty of second degree murder. We affirm. These facts present no Garcia issue and therefore required no Garcia instruction.

Respondent Ramsey Faris filed a cross-complaint against appellant Cingular Wireless LLC, now known as AT&T Mobility LLC (Cingular), for failing to defend him in the suit brought against him by The Consulting Group, Inc. (TCG) and Michael Flynn (collectively, plaintiffs) and to indemnify him. The trial court found in Faris’s favor and awarded him damages, including attorney fees, costs, and expenses of his original attorney, James M. Duarte. The parties stipulated the court could determine the amount of attorney fees, costs, and expenses (further damages in this case) accrued by another of Faris’s attorneys in a posttrial proceeding. The court filed what purported to be a judgment awarding Faris damages and stating Faris was entitled to recover the additional attorney fees, costs, and expenses, and left the amount to be awarded blank. Cingular filed a notice of appeal (No. G045602).

Alice L. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders denying her reunification services at a contested dispositional hearing (Welf. & Inst. Code, § 358)[1] and setting a section 366.26 hearing as to her 10-month-old son, Anthony. She contends the juvenile court’s order denying her reunification services under section 361.5, subdivision (b)(2) is error because there was insufficient evidence that she suffers from a mental disability as required by the statute. We disagree and deny the petition.

The court readjudged appellant, Alec R., a ward of the court after it sustained allegations in a subsequent juvenile wardship petition charging him with conspiracy to shoot at an inhabited dwelling (count 2/Pen. Code, §§ 182, subd. (a)(1) & 246) and resisting arrest (count 3/Pen. Code, § 148, subd. (a)(1)). On appeal, appellant contends the court erred when it denied his motion to dismiss these two offenses. We find merit to this contention with respect to the conspiracy charge. In all other respects, we affirm.