CA Unpub Decisions

Petitioner M.G. is the father of A.G. (born in 1997), N.G. (born in 1999) and C.G. (born in 2004). He seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) challenging the juvenile courts order on a petition for modification (Welf. & Inst. Code, 388) filed by the Humboldt County Department of Health & Human Services (the Department) setting the matter for a section 366.26 hearing. The petition for extraordinary writ is denied.

Defendant Andranik Manukovich Atshemyan appeals from the judgment entered after a jury found him guilty of leaving the scene of an automobile accident (Veh. Code, 20001, subd. (a); count 1) and second degree murder (Pen. Code, 187, subd. (a); count 2) and found true the allegation, as to count 1, that defendant personally inflicted great bodily injury upon two victims (id., 12022.7, subd. (a).) The trial court sentenced defendant to state prison for 15 years to life. This appeal followed.
Defendant contends (1) the court improperly denied his request to order a new panel of prospective jurors due to juror misconduct; (2) there was no evidence to support a finding of guilt on count 1 for leaving the scene of an accident; (3) his conviction for second degree murder should be reversed, in that the prosecution failed to meet its burden of proof on the element of implied malice; and (4) the court erroneously refused to provide jury instructions which would clarify the requirements of gross negligence and implied malice. Concluding there is no merit to defendants contentions, Court affirm.

Appellant Marlin L. Royal appeals from his conviction of aggravated kidnapping. He contends that the trial court erred in instructing the jury with CALJIC No. 9.54, rather than CALCRIM No. 1203. Respondent contends that appellant forfeited this issue by failing to object to CALJIC No. 9.54 or request CALCRIM No. 1203, and by expressly agreeing to all CALJIC instructions to the exclusion of CALCRIM instructions. We agree with respondent that appellants failure to object to CALJIC No. 9.54 and his agreeing to the instructions given resulted in a forfeiture of the issue.
Appellant also contends that Penal Code section 654 prohibited concurrent sentences on count 2 (robbery), and thus the sentence imposed as to count 2 must be stayed.[1] Appellant contends that section 654 also precluded both the enhancement imposed on count 1 (kidnapping for robbery) pursuant to section 12022.53, subdivision (b), and the punishment imposed for count 3 (possession of a firearm -- 12021, subd. (a)(1).) He argues that either the enhancement in count 1 or the sentence for count 3 must be stayed. Respondent agrees. Court reject appellants contention that the enhancement in count 1 or the sentence for count 3 must be stayed. However, we agree that the sentence imposed as to count 2 must be stayed, and we amend the judgment accordingly, and affirm the judgment as amended.

Father and paternal grandparents appeal from an order of the juvenile court granting mothers petition for modification, supported by Department of Children and Family Services (DCFS), which returned the children to her care and removed them from the paternal grandparents custody. Court affirm.

Kenneth James Shaw appeals from an order granting Lea Anne Shaw's motion to set aside a post-judgment enforcement order.[1] The court set aside the order for lack of personal service. (Fam. Code, 215 formerly (Civ. Code, 147 & 4809).) Ken argues that Lea waived the service defect when she and her attorney appeared to contest the matter on the merits. Court disagree and affirm.

Following a court trial, appellant Carlos Santiago Semidey (Semidey) was found guilty of first degree residential burglary (count 2) (Pen. Code, 459),[1]and felony vandalism of a 1997 Honda Civic (count 3) ( 594, subd. (a)).[2] It had been further alleged that Semidey had suffered a prior serious or violent felony conviction under the Three Strikes law ( 667, subds. (b)(i); 1170.12, subds. (a)(d)), that he had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Semidey admitted a prior conviction of assault with a deadly weapon, which qualified as a strike under the Three Strikes law, as well as a prior serious felony conviction under section 667, subdivision (a)(1). With respect to the prior prison term allegation, both Semidey and the prosecutor agreed that the enhancement did not apply because he had been out of prison for more than five years before committing the instant offenses.

Appellant Waites Earl Williams, Jr., appeals from the final judgment in this action to dissolve his marriage to respondent Arnetta Dean Williams. He also appeals from an order denying his motion for reconsideration of the judgment. Court affirm.

Cross-complainant James Ha (Ha) appeals from an order awarding attorneys fees to cross-defendants Hyon Mi Yi, Brian Choe, Hyon Sam Yi, Donna Lee Faure and Jonathan Kim (collectively respondents). Court affirm.

Appellant Allen V. C. Davis appeals from the order of the probate court that directs payment of fees incurred by the court-appointed Probate Volunteer Panel (PVP) attorney out of the estate of the proposed conservatee, Lenabelle Berg Davis, Allens wife. Allen contends that for myriad reasons the probate court had no jurisdiction to order payment from Lenabelles estate. We hold, although the probate court had authority to direct the payment of fees from Lenabelles estate, that where Allen was not given notice of the hearing on the PVP attorneys fee request, the order must be reversed.

N.A. appeals from an order setting aside an earlier order that imposed a monetary discovery sanction against respondent. Appellant contends that the juvenile court had no jurisdiction to set aside its order after the time for appeal had expired. Court affirm.

Defendant was convicted by jury of forcible oral copulation (Pen. Code, 288a, subd. (c)(2))[1] and felony false imprisonment ( 236, 237, subd. (a)). The court found true allegations that defendant had a prior serious felony conviction ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served two prison terms. ( 667.5, subd. (b).) Sentenced to 24 years in prison (the upper terms of eight and three years doubled, plus two years for prior prison terms), defendant appeals. He contends there is insufficient evidence of menace to support felony false imprisonment. Court find sufficient evidence and affirm.

This appeal involves a simple settlement agreement intended to end a lawsuit filed by plaintiff Allan Askew against defendants California Live Floors, Inc., Dean Berkenbile, Dwana Berkenbile, and the Berkenbile Revocable Trust (collectively CLF) in order to foreclose on a mechanics lien. Askew constructed a building for CLF. The 2001 settlement agreement called for Askew to repair three deficiencies in CLFs building foundation in exchange for final payment of $10,881. The parties expected the terms of the agreement to be quickly fulfilled. However, as an ancient Roman writer observed, There are some remedies worse than the disease. (Publilius Syrus, Maxim 301, quoted in Bartletts Familiar Quotations (15th ed. 1980) p. 111.)

While in pursuit of a night of chicken fighting, Wang Lee was shot and killed. Defendant Yee Xiong was convicted of Lees murder. He was also found to have personally discharged a firearm to cause Lees death and committed the murder for the benefit of a street gang. Defendant appeals his conviction and the findings contending the court prejudicially erred in granting a prosecution challenge for cause to a prospective juror, that there is insufficient evidence he personally discharged the firearm, that Detective Bailey was not properly qualified as a gang expert, and based on his life sentence without possibility of parole, his parole revocation fine must be stricken. On this last point, we agree. In all other respects, Court shall affirm the judgment.

Appellant, J.C., Sr., father of the minor J.C., appeals from a juvenile court order of legal guardianship. (Welf. & Inst. Code, 366.26, 395.) He contends the court abused its discretion by delegating full discretion to the guardians regarding the conditions of visitation. Court shall affirm.