CA Unpub Decisions

A law firm obtained a judgment by default against its former client, who did not answer a lawsuit seeking unpaid legal fees. Four months later, the defendant asked the trial court to vacate the default. The defendants attorney accepted full responsibility for failing to answer the complaint. The court granted relief and set aside the default. Court affirm.

A jury convicted Jose Juan Ramos (appellant) of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)),[1] and found true allegations that he personally used a firearm in the commission of the offense ( 12022.5, subd. (a)) and committed the offense for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by a gang member ( 186.22, subd. (b)(1)(B)). The trial court sentenced appellant to 12 years in state prison, calculated as follows: the midterm of three years for the assault, plus four years for the firearm enhancement and five years for the gang enhancement.

L.T. (father) appeals from the findings and orders of April 21, 2009 sustaining a subsequent petition under Welfare and Institutions Code section 342[1](subsequent petition) and removing his daughter E.T. from his custody. He contends notice of the subsequent petition was defective and substantial evidence does not support the findings. We hold father forfeited his defective notice contentions and, in any event, notice was not defective. Court further hold substantial evidence supports the findings. Accordingly, we affirm the judgment.

Hudson Insurance Company (Hudson) issued automobile insurance to Cruz Sanchez on a month-to-month basis. SCJ Insurance Services (SCJ) serviced Hudsons policies by mailing monthly statements that invited policy renewal, taking receipt of premium payments, and applying them to the appropriate account.

A jury found defendant Jesse Moe Young murdered Donald Desaix with a knife while lying in wait. The court found he had five prior strikes and sentenced him to prison for life without the possibility of parole plus one year. On appeal, defendant raises the following four contentions: (1) the court abused its discretion in admitting evidence of an elevator incident that took place prior to the murder; (2) the court abused its discretion in admitting a statement he made prior to the murder in which he said he had been to prison; (3) there was insufficient evidence his 1995 conviction was a strike; and (4) there was insufficient evidence his 1966 conviction was a strike. We agree with only the last contention and modify the judgment accordingly.

Convicted of murder and attempted murder, defendant Por Ye Her appeals, contending the trial court erred in instructing the jury on voluntary manslaughter and voluntary attempted manslaughter and his trial attorney was ineffective in failing to object to certain evidence and argument. Finding no prejudicial error or ineffective assistance of counsel, Court will affirm the judgment.

In a bifurcated proceeding, the trial court found that defendant had served two prior prison terms and had one strike. The trial court sentenced defendant to a state prison term of eight years (three-year midterm on the transportation count, doubled under three strikes, and two consecutive one-year terms for the prior prison term enhancements, with sentence on the other counts, stayed pursuant to Penal Code section 654). Thereafter, the court recalled defendants sentence and resentenced him to a six-year prison term (imposing the two-year low term on the transportation count rather than the three-year midterm).

At a Welfare and Institutions Code section 366.26 hearing in October 2007, the Sutter County Juvenile Court terminated the parental rights of D. K. (mother) and R. K., Sr., (father) to their three children -- nine-year-old R. K., Jr.; seven-year-old D. D. K.; and five-year-old S. K. Mother timely appealed to this court. In an opinion filed in June 2008, we rejected mothers contentions that the evidence of adoptability was insufficient and that the juvenile court gave insufficient weight to the sibling bond. However, we found merit in mothers contention that the Sutter County Department of Human Services (the department) had failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.), in that it had utilized an erroneous address for the United Keetoowah Band of Cherokee Indians. (In re R.K. et al. (June 30, 2008, C057364 [nonpub. opn.]; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.) We ordered: The orders terminating parental rights are conditionally vacated and the matter is remanded for the purpose of providing ICWA notice to the designated agent for the United Keetoowah Band of Cherokee Indians at its most recent address listed in the federal register. If the tribe responds that the children are Indian children or eligible for enrollment, the court shall proceed as required by ICWA. If the tribe responds that the children are not Indian children or eligible for enrollment, the court shall reinstate the order terminating parental rights. (In re R.K., at p. 19.)[1]

A jury found defendant Kelly Vaughn Kimble guilty of stalking. The court found he had two prior strikes (including one for criminal threats) and had served a prior prison term. The court sentenced him to prison for 25 years to life plus 1 year. On appeal, defendant contends the court erred in using his criminal threats conviction as a strike. In his view, the court should have limited use of his criminal threats conviction to enhance his sentence pursuant to the punishment provision of the stalking statute itself.

Along with his four brothers, plaintiff Ronald L. Gaston is one of the beneficiaries of a trust created by his mother, Audrey G. Barnes.[1] Along with three of her brothers (and Audreys), Audreys sister, defendant Kitten Harmon, is one of the trusts four successor cotrustees. This appeal arises from Gastons unsuccessful attempt to oust his aunt as a trustee and put himself in her place. In concluding that Gaston had failed to prove facts that warrant the removal of trustee Kitten Harmon, the trial court found Kitten had not impaired the administration of the trust, taken excessive compensation, or failed to comply with other legal duties specified in the Probate Code. In seeking reversal of the trial courts refusal to remove Kitten as a trustee, Gaston argues only impairment of the administration of the trust. He contends there is no doubt that impairment of the administration of the Decedents trust occurred and is still occurring and so long as KITTEN remains as a trustee of the Trust, the same sad situation is likely to continue to exist. As will be seen, however, in making this argument, Gaston fails to follow the applicable rules of appellate review. Accordingly, there is no merit in his appeal, and we will affirm the trial courts order.

In October 2007, plaintiff and respondent Lloyd Lake (Plaintiff) brought a complaint against defendants and appellants Lamar Griffin, Denise Griffin and their son Reginald Bush, a renowned athlete (together Defendants), seeking recovery of monies on a common count theory (approximately $291,000). Plaintiff alleges that Defendants have become indebted to him, and to a general partnership of which he is a general partner ("New Era Sports" or New Era, a sports marketing company), for cash payments advanced to Defendants for living expenses and other things, by Plaintiff and/or New Era, during the period while Bush was a college athlete.

A jury convicted defendant and appellant Michael Araya of first degree burglary of an inhabited dwelling. (Pen. Code,[1] 459, 460.) On appeal, Araya claims the trial court erred in denying his motion for a new trial because it did not give effect to its own doubts as to Araya's guilt. As we explain more fully, the record shows the trial court did not entertain the serious doubts which would have permitted it to overturn the jury's verdict.

Francisca G. (mother) and Jose S. (the minor's father) (together the parents) appeal a judgment declaring their daughter E.S. (the minor), who is now about one year old, a dependent of the juvenile court under Welfare and Institutions Code[1] section 300, subdivision (j) (hereafter section 300(j)), and placing her in a licensed foster care home. The parents challenge the sufficiency of the evidence to support the juvenile court's jurisdictional findings and dispositional order. Specifically, the parents contend that (1) substantial evidence does not support the court's jurisdictional findings under section 300(j) that the minor's father sexually abused her half-sister Y.H., and there was a substantial risk the minor would also be sexually abused by him; (2) because substantial evidence does not support the court's jurisdictional findings, the evidence is also insufficient to support the court's dispositional findings and orders; and (3) even if substantial evidence supports the court's jurisdictional findings under section 300(j), the dispositional order must be reversed with instructions to return the minor to mother's care and custody because the order is not supported by clear and convincing evidence of substantial danger or risk of sexual abuse, nor does the evidence support a finding that no reasonable means were available to protect the minor without removing her from her mother's care. The minor's counsel joins respondent San Diego County Health and Human Services Agency (Agency) in urging this court to affirm the jurisdictional findings and dispositional order.

A jury convicted defendant Noel Velazquez of two counts of robbery within a residence (Pen. Code, 211, 212.5), one count of assault with a firearm (Pen. Code, 245, subd. (a)(2)), two counts of unlawful taking of vehicles (Veh. Code, 10851, subd. (a)), and one count of possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)). Defendant appealed his conviction challenging the admissibility of testimony about lab reports by an expert who did not personally perform the lab testing, as well as raising two sentencing issues. On January 23, 2009, we issued an opinion affirming the judgment, and the remittitur issued on April 13, 2009. After our opinion was filed and the remittitur had issued, the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527; 174 L.Ed.2d 314] (Melendez-Diaz). In that case, the Court concluded that certificates (or notarized affidavits) of state laboratory analysts stating that material seized by police and connected to the defendant was cocaine was testimonial hearsay that violated the defendants Sixth Amendment right to confrontation. Defendant Velazquez subsequently requested that we recall the remittitur and reinstate the appeal to reconsider the admissibility of the testimony about lab reports by the expert who did not personally perform the testing in light of Melendez-Diaz. We reinstated the appeal, invited supplemental briefing, and again affirm the judgment.