CA Unpub Decisions

Robert Cornelius entered into a written partnership agreement with his sister Darlene Vogt and her husband, Eldon Vogt, to acquire and manage a duplex rental unit. Cornelius withdrew from the partnership and sued the Vogts, alleging in his amended complaint causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duties, misrepresentation and negligence. In his trial brief and at trial he alleged that the parties orally modified the partnership agreement to provide for him to receive in exchange for his labors $260,000, which was the appraised value of a lot split, plus $100,000 that Darlene had promised him. The jury in a general verdict awarded him compensatory damages and interest, and separately found that the Vogts acted with malice, oppression or fraud and awarded him punitive damages.

In the original trial in this matter, judgment was entered in favor of Fry's. Thereafter, Fry's was awarded costs in the amount of $44,836. Apex appealed the judgment, and Court reversed as to one cause of action, based upon the court's instructional error, and affirmed the remainder of the judgment.

A jury found defendant Paul Alonzo Alvarez guilty of making a criminal threat (Pen. Code, 422)and carrying a loaded firearm in a public place by a nonregistered owner ( 12031, subd. (a)(2)(F)). Defendant was sentenced to a total term of two years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction for making a criminal threat, and (2) the trial court prejudicially erred when it failed to sua sponte instruct the jury on the lesser included offense of attempted criminal threat. Court reject these contentions and affirm the judgment.

Debbera DiCostanzo appeals from an order ruling that the John A. DiCostanzo Trust held title to certain property and that she had no interest in that property. When Court first reviewed the record, it appeared to us that this was not an appealable order.Court asked Debbera to submit a letter brief addressing the appealability issue. Court now conclude that the order is not appealable and hence that this appeal must be dismissed

Defendant pled guilty to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1))and illegal possession of ammunition ( 12316, subd. (b)(1)). In return, defendant was granted three years of formal probation on various terms and conditions. Defendants sole contention on appeal is that the trial court erred in denying his suppression motion.Court reject this contention and affirm the judgment.

Appellant Daniel Thomas stands convicted, following a jury trial, of first degree murder in which he personally and intentionally discharged a firearm, causing death, and which was committed for the benefit of or in association with a criminal street gang. (Pen. Code,[1] 186.22, subd. (b)(1), 187, subd. (a), 12022.53, subd. (d).)[2] His motion for a new trial was denied, and he was sentenced to a total unstayed term of 50 years to life in prison. He now appeals. For the reasons that follow, Court will affirm.

E.P. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) to her 17-month-old namesake.[1] Mothers court-appointed appellate counsel informed this court that she was not filing an opening brief pursuant to In re Sade C. (1996) 13 Cal.4th 952 for lack of an arguable issue to raise. In turn, this court extended time for mother to personally file a letter brief which she has since done. In her letter brief, mother asks for an opportunity to show she is in the process of changing her life. She mentions she has completed two months of a four-and-a-half month drug program. Mothers request does not amount, however, to an argument that the juvenile court committed an error affecting the outcome of this case. (In re Sade C., supra, 13 Cal.4th at p. 994). Consequently, Court affirm.

The Les present three complaints in a petition for rehearing. The most important is an assertion that they did not have the opportunity to brief the issue of whether the sale or transfer of shares by a non-majority shareholder in a pharmacy corporation is an exercise of control over the corporations affairs. (See Gov. Code, 68081.) The issue of breach of fiduciary duty for the Les Court now quote from the appellants opening brief attemp to transfer their shares to the other respondents (Mr. Hoang and Kimngan Hoang) on better terms than the ones states in [t]he notice of intent to sell was presented in the opening brief.

Catherine N. and Diana A. appeal the courts order terminating their status as de facto parents of 16 year old Jenny L. The court did not abuse its discretion and Court therefore affirm.

Between May 2002 and September 2003, defendant James Kelly Shepard engaged in three acts of intercourse and one act of oral copulation with a female who was 13 years old when the activity began. The crimes, first reported in 2006, led to the filing of this criminal action in March 2007 that charged defendant with one count of lewd conduct on a child under age 14 (Pen. Code, 288, subd. (a); all further statutory references are to this code), with an allegation he had substantial sexual conduct with the victim; two counts of committing a lewd act on a child under age 16 ( 288, subd. (c)(1)); and one count of oral copulation of a minor under age 16 ( 288a, subd. (b)(2)). On the first day of trial, defendant entered a plea of guilty to the charges and admitted the substantial sexual conduct allegation as to the first count. Shortly thereafter, he obtained new counsel and moved to withdraw the guilty plea. Defendant claimed his first attorney only met with him outside of court five times, failed to provide him with discovery materials and only briefly discussed the material with him. Citing the emotional trauma suffered by defendants own son and warning the prosecution would use [his] son against [him], defendant claimed his first attorney unexpectedly recommended he change his plea to guilty just before the commencement of trial, declaring it would be better for everybody. Claiming he felt overwhelmed and was given only five minutes to think about it, defendant asserted he broke down and agreed to plead guilty. Defendants first attorney also filed a declaration that countered the foregoing claims.

Defendant pleaded no contest to one count of domestic battery and admitted that he had personally used a deadly weapon in the commission of the crime in exchange for a probationary sentence on the condition, among others, that he serve six months in the county jail. (Pen. Code, 273.5, subd. (a), 12022, subd. (b)(1).)[1] This appeal follows the denial of his motion to withdraw his plea and the issuance of a certificate of probable cause. ( 1237.5.) The sole question on appeal is whether his appointed attorney rendered ineffective of counsel by failing to litigate defendants motion to withdraw his plea. Court find no ineffective assistance of counsel and will affirm.

The child whose interests are at issue here is J.M., a girl born in 2000. This is the second dependency proceeding involving the child.

This appeal is brought by the father of two dependent children. He seeks reversal of the juvenile courts order dismissing the dependency proceeding, arguing (1) the court failed to make the requisite statutory findings, and (2) the record lacks sufficient evidence to support the order. For reasons explained below, Court affirm.

Appellant R. G. challenges two gang-related probation conditions that were imposed after the juvenile court found true an allegation that R. had violated Penal Code section 245, subdivision (a)(1). He contends that these two conditions were vague and overbroad and unnecessarily impinged on his First Amendment rights. We conclude that one of the two conditions requires modification to closely tailor it to its purpose, while the other challenged condition is not unconstitutional. Court therefore modify and affirm the juvenile courts probation order.