CA Unpub Decisions

Tracey Franklin (wife) appeals a marital dissolution judgment granting her former husband Darryl Franklin (husband) reimbursement under Family Code section 2640[1] for his separate property contribution to community property assets subsequently purchased during approximately 11 years of marriage. Wife contests the sufficiency of the evidence to support the trial court's tracing of £128,194,[2] which husband invested before marriage in a residence in London, England (the Spencer property). We reverse, finding husband's testimony of his intent to use separate property funds is insufficient evidence to trace his separate property interest to subsequently purchased community assets held at the time of dissolution.

Defendant Humberto Valdonvinos appeals the sentence imposed after he pleaded no contest to petty theft with a prior, in violation of Penal Code section 666.[1] Defendant's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Defendant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and therefore affirm the judgment.

Appellant sought and received a domestic violence restraining order (Fam. Code, § 6200 et seq.) against his adult son, Christopher, from the San Mateo County Superior Court. On this appeal, appellant, appearing in propria persona, seeks to overturn that part of the restraining order that denied his request for an order that Christopher be remanded to the â€

Appellant Kevin Walsh has appealed from orders setting respondent Chris Walsh's motion to vacate a judgment of marital dissolution for hearing, and determining the scope of the issues that can be raised in the motion to vacate. Respondent has moved to dismiss the appeal on the ground that the challenged orders are not appealable. Court agree with respondent and dismiss this appeal.

Armsberry Jones entered a plea of no contest to receiving stolen property in exchange for probation and the dismissal of other charges. He violated his probation and was sentenced to three years in prison, with 109 days of presentence custody credit and 54 days of conduct credit. The court also ordered Jones to pay $8,500 in victim restitution.
This appeal challenges the restitution order and the court's calculation of conduct credit. While Jones's restitution claim is meritless, his argument as to conduct credit is well taken. Court therefore affirm the judgment and order the trial court to amend the abstract of judgment to correctly reflect the credit to which Jones is entitled.

Armsberry Jones entered a plea of no contest to receiving stolen property in exchange for probation and the dismissal of other charges. He violated his probation and was sentenced to three years in prison, with 109 days of presentence custody credit and 54 days of conduct credit. The court also ordered Jones to pay $8,500 in victim restitution.
This appeal challenges the restitution order and the court's calculation of conduct credit. While Jones's restitution claim is meritless, his argument as to conduct credit is well taken. We therefore affirm the judgment and order the trial court to amend the abstract of judgment to correctly reflect the credit to which Jones is entitled.

Tried by jury on felony counts of criminal threats (Pen. Code, § 422)[1] and aggravated assault with a knife (§ 245, subd. (a)(1)) against domestic partner C. Caldie, Cory Anthony Butler was acquitted on both charges but found guilty of the second count's lesser included offense of misdemeanor simple assault (§ 240). On a motion for new trial, Butler claimed misinstruction of the jury and a verdict contrary to law (§ 1181, subds. (5) & (6)), arguing in essence that, due to jury reliance on misleading argument by the prosecutor, jurors improperly convicted him of a physical act that was neither charged nor a lesser included offense of the aggravated assault. The trial court denied the motion without comment, suspended imposition of sentence, and placed him on three years' summary probation.
On this appeal, Butler reiterates, with some elaboration, his new trial motion arguments. Court reject them and affirm the judgment.

Defendant Doyal M. Webber appeals his jury-trial conviction for the second degree murder of Lon Dell Wilson. Defendant contends his conviction must be reversed on the grounds of prosecutorial misconduct. Defendant also contends his conviction must be reduced to a verdict of manslaughter because the evidence was constitutionally insufficient to disprove his defense of imperfect defense of others. We conclude defendant's contentions lack merit, and affirm the judgment.

Jimmie D. Otto appeals from an order recommitting him to the Department of Mental Health (DMH) for an indeterminate period after a jury determined he qualified as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1] He argues that his right to due process was violated by the lengthy delay in bringing the case to trial and by the use of invalid protocols during his SVP evaluation. He also claims the amended version of the SVPA is unconstitutional in that it deprived him of due process of law, denied him equal protection, subjected him to double jeopardy and operated as an ex post facto law. We remand the case for further proceedings on his equal protection claim pursuant to People v. McKee (2010) 47 Cal.4th 1172, 1196-1211, but otherwise affirm.

A jury convicted appellant Jose Alfonso Leyva of first degree murder in which he personally and intentionally discharged a firearm, causing death. (Pen. Code,[1] §§ 187, 12022.53, subd. (d).) Although Leyva admitted having previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)), the trial court dismissed the prior strike conviction (§ 1385) and sentenced Leyva to prison for 50 years to life plus five years.
Leyva appealed and challenged his conviction. The People appealed and challenged dismissal of the strike. We affirmed Leyva's current murder conviction and firearm enhancement, but concluded the trial court erred by dismissing the prior strike conviction (a 1991 conviction for assault with a firearm under § 245, subd. (a)(2)) because it failed to (1) consider the appropriate factors concerning the current offense, together with Leyva's history and personal circumstances (see People v. Williams (1998) 17 Cal.4th 148, 161; People v. McGlothin (1998) 67 Cal.App.4th 468, 474), and (2) set forth its reasons â€

On December 21, 2009, a juvenile wardship petition was filed alleging that 15-year-old appellant, Gabriel M., committed two counts of second degree robbery (Pen. Code, § 211). On March 19, 2010, after a contested jurisdictional hearing, both counts were found true and Gabriel was sentenced to the Division of Juvenile Justice for a maximum term of confinement of four years.
Gabriel argues that there is insufficient evidence to support the identification of him as a perpetrator of the robbery. We disagree and affirm.

Following a contested jurisdictional hearing, the juvenile court found true that defendant and appellant E.G. (Minor) had committed an assault with a deadly weapon, to wit, a knife, by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))[1] and that Minor had personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). Minor was thereafter continued a ward of the court and placed in a suitable group home. On appeal, Minor contends (1) there was insufficient evidence to sustain his conviction because the juvenile court misunderstood the law of self-defense; (2) the juvenile court erred in excluding evidence that the victim was required to attend anger management classes as a condition of his probation; and (3) the court's minute order should be corrected to accurately reflect the restitution fines imposed. We agree with the parties that the court's minute order should be amended. We reject Minor's remaining contentions.

In July 2008, defendant and appellant Reynaldo Valdez Linares pled guilty to one count of assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[1] In return, the remaining allegations were dismissed, and defendant was placed on formal probation for a period of 36 months on various terms and conditions, including completing a 52-week domestic violence program.
In August 2010, following a formal probation revocation hearing, the trial court found that defendant had violated the terms and conditions of his probation by failing to complete the required domestic violence program. The court thereafter imposed the middle term of three years, suspended the execution of the sentence, and reinstated defendant on supervised probation with additional terms and conditions, including serving 180 days in county jail. Defendant's sole contention on appeal is that the trial court prejudicially erred in sentencing defendant without first obtaining a probation report. We reject this contention and affirm the judgment.

A jury found defendant and appellant Arnel Dacumos Tabafunda guilty of two counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1 & 2)[1] and one count of misdemeanor annoying or molesting a child under the age of 18 (§ 647.6, subd. (a); count 5).[2] Defendant was sentenced to a total term of eight years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his convictions on counts 1 and 2; and (2) the prosecutor committed prejudicial misconduct during closing argument. We reject these contentions and affirm the judgment.