CA Unpub Decisions

M.S. appeals from an order terminating his parental rights to M. He contends that the order must be reversed because the court failed to find that he was a presumed father and order reunification services for him, and terminated his rights without making a finding of detriment. Court affirm.

Defendant, OneBeaconAmerica Insurance Company, has filed a mandate, certiorari and prohibition petition challenging the respondent courts July 31, 2009 order granting the summary adjudication motion of plaintiffs, ITT Corporation, formerly known as Grinnell Corporation and Grinnell LLC formerly known as Grinnell Corporation and Grinnell Fire Protection Systems Company, Inc. The summary adjudication order requires defendant to provide separate counsel to plaintiffs in asbestos suits. Court issue our writ of mandate.

M.H. (Mother) has petitioned this court for extraordinary relief pursuant to California Rules of Court, rule 8.452, seeking relief from an order terminating family reunification services in the dependency proceedings concerning her son D.H. (Welf. & Inst. Code, 361.5, subd. (b)(6).) Court deny the petition.

The minor, J. B., was committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) after he admitted to one of four charged counts of lewd and lascivious conduct with a child under the age of 14 years. The remaining counts were dismissed. The minor appeals on two grounds. He asserts the commitment was unauthorized under an amendment to Welfare and Institutions Code section 733, which did not become effective until after the commitment was ordered. (Welf. & Inst. Code, 733, subd. (c).)[1] And he argues that in exercising its discretion, the trial court improperly relied on its own familiarity with sexual offender programs within the DJF. We will conclude that his statutory argument fails because the statute applies prospectively only and that the court did not improperly rely on ex parte communications but simply applied its broad range of experience with the juvenile justice system. Court affirm.

A jury found defendant Marshall Miles guilty of possessing cocaine base and marijuana for sale (Health & Saf. Code, 11351.5, 11359). Finding that defendant had two prior drug convictions (Health & Saf. Code, 11370.2, subd. (a)) and had served two prior prison terms (Pen. Code, 667.5, subd. (b)), the court sentenced him to an aggregate term of 13 years in state prison.
On appeal, defendant contends the trial court (1) abused its discretion in permitting the prosecution to present evidence of three prior drug offenses committed by defendant, (2) erred in failing to give the jury a unanimity instruction, (3) improperly instructed the jury on flight as evidence of consciousness of guilt, and (4) violated his constitutional rights when imposing the upper term for the cocaine conviction. Court shall affirm the judgment.

Following a jury trial, defendant Ernesto Becerra Espinoza was convicted of robbery. (Pen. Code, 211.)[1] In addition, the jury found true the enhancement allegations that defendant committed the crime in association with a street gang ( 186.22, subd. (b)(1)), a principal was armed with a firearm ( 12022, subd. (a)(1)), and defendant had a firearm on his person or in a vehicle ( 12021.5). He appeals his robbery conviction and the true findings on the gang enhancement, contending there is insufficient evidence that the taking was accomplished by force or fear; that there is insufficient evidence he acted with the specific intent to promote, further or assist in criminal conduct by gang members; and that there is insufficient evidence of the gangs primary activities. Court affirm.

Defendant Charles Kevin Cunningham killed John Finley Scott after Scott confronted him about forging checks on Scotts accounts. At the time of trial, Scotts body was still missing. A jury found defendant guilty of first degree murder, grand theft, two counts of felon in possession of a firearm, and possession of ammunition. It also found he had served two prior prison terms. The court sentenced him to an indeterminate prison term of 25 years to life and a determinate prison term of six years four months. Defendant appeals, raising the following five contentions: (1) the court erred in failing to conduct a hearing on the admissibility of testimony of two bank employees, and counsel was ineffective; (2) the court erred in admitting evidence of his parolee status; (3) there was insufficient evidence of first degree murder; (4) the court erred in failing to instruct on voluntary manslaughter; and (5) the court erred in failing to stay one of his sentences for felon in possession of a firearm. Finding no merit in these contentions, Court affirm the judgment.

A jury convicted defendant Celso Portillo of two counts of robbery (counts I and II) and convicted defendant Daniel Aguilar of three counts of robbery (counts I, II and III) and one count of attempted robbery (count IV), and found Aguilar personally used a firearm in committing counts III and IV. (Pen. Code, 211, 664, 12022.53, subd. (b).) The trial court sentenced Portillo to four years in state prison, and Aguilar to 18 years in state prison. Each defendant timely appealed.

Aguilar contends no substantial evidence shows he used a gun in committing counts III and IV, or that he committed a robbery, as opposed to a theft, in the incident supporting count II. Portillo also contends the incident in count II was a theft, not a robbery, and further contends that no substantial evidence supports his liability as an aider and abettor of whatever crime was committed in that incident. Court reject each of these claims and affirm the judgments.

Defendant David Fulton appeals from an award of costs and attorney fees to plaintiff Jess L. Allen totaling $217,422 against Fulton and his company, Kart Saver, Inc., jointly and severally. Fulton contends the award of $212,473 in attorney fees was unreasonable because the court failed to: (1) state the reasons for the award; (2) acknowledge the only basis for the award was the personal guarantee which is a contract; (3) distinguish between legal, paralegal and clerical work; (4) issue an award that was proportional and reasonable to the liability sustained; and (5) apportion the award. As Court explain, Fulton has failed to carry his burden to show the attorney fee award was unreasonable.

Defendant Marie Cano pled no contest to possession of methamphetamine and to possession of marijuana, and admitted she had served four prior prison terms. The court sentenced defendant to a term of six years, suspended the execution of sentence, and placed defendant on Proposition 36 probation. Among the conditions of probation are that she must not . . . associate with anyone or be in the presence of anyone who is using illegal drugs and must stay away from all locations, which includes [her] automobile or any residence, building, structure or area where illegal drugs are being used or possessed. On appeal, defendant contends that the above condition of probation is constitutionally overbroad and must be rewritten to include a knowledge requirement. The People agree. Court accept the concession. (See In re Sheena K. (2007) 40 Cal.4th 875, 890-892.)

Watson, a prison inmate appearing without counsel, has not provided this court with a reporters transcript of the hearing, and the clerks transcript does not contain a document he relies on to support his appeal. It is Watsons burden, as the appellant, to provide this court with a record adequate to support his claims of error. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 628, pp. 704-706.) The fact he appears without counsel does not relieve him of the duty to follow legal procedures. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 129-130.) Court briefly address his claims seriatim.

Plaintiff Stu Chang brought this derivative action on behalf of Synergy Sports Placer County (Synergy),[2] a limited liability company (LLC), against defendants Daniel Johnson, Jr.[3] and Johnsons company Big Ranch Properties, LLC (Big Ranch).[4] Plaintiff inter alia seeks a declaration that Synergy is the rightful owner of certain real property, namely a large industrial building located in Rocklin, California, and an injunction compelling Big Ranch to convey its interest in that building to Synergy.
Defendants moved for summary judgment claiming inter alia that plaintiff lacked standing to pursue a derivative action on behalf of Synergy. The trial court granted the motion, ruling that plaintiff was barred from pursuing the action on Synergys behalf by the LLC law that prohibits a member of an LLC from instituting or maintaining any action in right of the LLC unless the member sets forth in the complaint his efforts to secure from the managers the action [he] desires or the reasons for not making that effort . . . . ( 17501, subd. (a)(2).) Plaintiff asserts that it would have been futile to make a demand on Synergy or its managers because Johnson, who he contends had become the majority owner and managing member of Synergy, never would have agreed to bring an action against himself or his company Big Ranch.

In December 1994, a default judgment was entered in Sacramento County finding Jeffery Troy Ellinwood to be the biological father of Kimberly A. Wilfongs daughter, born March 7, 1990. That same judgment found Ellinwood was unemployed and reserved jurisdiction over the issue of child support. Ellinwood did not receive a copy of that judgment.

A jury convicted defendant Jarvonne Feredell Jones of three firearms offenses and the trial court found he had served a prison term. (Pen. Code, 12021, subd. (a)(1), 12025, subd. (b)(6), 12031, subd. (a)(2)(F), 667.5, subd. (b).)[1] Defendant was sentenced to prison for four years, and he timely appealed. Defendant contends the trial court should have stayed the sentences for two counts and that the abstract reflects jail fees that were not orally pronounced at sentencing. The Attorney General partly concedes the former claim. Court shall modify the sentence and otherwise affirm.