CA Unpub Decisions

D.G. (father) appeals from the juvenile courts order terminating his parental rights to his daughter, J.G., now age one, at the hearing held pursuant to Welfare and Institutions Code section 366.26[1] (.26 hearing). Father claims the court erred in not complying with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA; see 25 U.S.C. 1901 et seq.) For the reasons discussed below, Court affirm.

A jury convicted defendant Eusebio Gonzalez of second degree murder (count 1Pen. Code, 187, subd. (a)), gross vehicular manslaughter while intoxicated (count 2Pen. Code, 191.5, subd. (a)), driving under the influence causing injury (count 3Veh. Code, 23152, subd. (b)), and hit-and-run (Veh. Code, 20001, subd. (a)). As to counts 2 and 3, the jury found that defendant had previously been convicted of two prior offenses of driving under the influence. (Veh. Code, 23152, subd. (b).) As to count 3, the jury additionally found that defendant had proximately caused bodily injury upon both of his passengers. (Veh. Code, 23558.) The court sentenced defendant to 15 years to life. On appeal defendant contends that the trial court erred in admitting defendants inculpatory statements made to officers during his interrogation. Defendant additionally maintains that the court erred in failing to issue a sua sponte jury instruction that the requisite mens rea for the count 1 offense could be negated by evidence of his intoxication. Court affirm the judgment in full.

Appellant Joshua Lemus (Lemus) and some cohorts robbed a group of men at gunpoint. One of the other principals fired some shots toward the victims car some minutes later, as the victims left the scene. A jury found Lemus guilty of one count of second degree robbery (Pen. Code, 211)[1]and two counts of attempted second degree robbery ( 211, 663) and found true that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and that a principal personally used and personally and intentionally discharged a firearm ( 12022.53, subds (b), (c), (e)(1)). The trial court sentenced Lemus to state prison for a term of 22 years, consisting of a two-year base term for the robbery, plus a 20-year term for the weapon enhancement under Section 12022.53, subdivision (c). Lemus appeals, contending the trial court committed prejudicial error by failing sua sponte to instruct the jury that it was required to find that there was a facilitative nexus between the guns discharge and the commission of the robbery in order to find the Section 12022.53, subdivisions (b) and (c) weapon enhancements to be true. We agree the jury was required to find a facilitative nexus. However, we conclude the jury could reasonably infer that the gun was shot to facilitate the robbery because the robbery was not over at the time the gun was shot. Contrary to Lemuss assertion, the instructions given by the court informed the jury that it was required to find that the gun was shot to facilitate the robbery. There was no instructional error. Even if instructional error could be found, it would be harmless beyond a reasonable doubt. Court affirm.

Appellant Tu My Tong appeals from the judgment entered after the trial court confirmed an arbitration award in favor of her former attorney, Fred Rucker, for attorney fees and costs.[1] She contends that the trial court erred in refusing to consider her motions to vacate the award, filed February 5, 7, 11, and 13, 2008. She contends that the award should have been vacated, because the arbitrators failed to determine all issues and refused to allow her interpreter to translate simultaneously throughout the arbitration hearing. Finally, Tong contends that she was prejudiced in the arbitration by the exclusion of material evidence. Court reject Tongs contentions and affirm the judgment.

A juvenile criminal wardship petition was filed alleging that appellant A.B. resisted an executive officer with force or violence (count 1), committed a battery on a peace officer (count 2) and resisted an officer (count 3). (Pen. Code, 69, 243, subd. (b), 148, subd. (a)(1).) Appellant accepted a negotiated plea agreement. In exchange for dismissal of counts 1 and 2, he admitted count 3 as a misdemeanor.
Appellant was judged to be a ward and placed on probation for one year.

Jorge Cardona (appellant) appeals from the trial courts denial of his demurrer to the allegations contained in both charged offenses that the firearm found on his person was not registered to him. After denial of his demurrer and a court trial, appellant was convicted of carrying a loaded firearm that was not registered to him in violation of Penal Code section 12031, subdivision (a)(1)[1] (count 1) and of having a concealed firearm, not registered to him, on his person in violation of section 12025, subdivision (a)(2). Appellant admitted the allegation that he was out on bail or on his own recognizance within the meaning of section 12022.1 when he committed the offenses. The trial court sentenced appellant to the midterm of two years in count 1, suspended execution of sentence, and placed appellant on formal probation for a period of three years under terms and conditions of probation, which included serving 60 days in jail (time served). The trial court stayed the sentence on count 2 pursuant to section 654. The trial court also stayed a two year sentence on the out on bail allegation.

Appellant Dennis Paul Owsuik appeals from the judgment entered following a jury trial in which he was convicted of passing a forged prescription (Bus. & Prof. Code, 4324, subd. (a)), second degree commercial burglary (Pen. Code, 459),[1] and obtaining a controlled substance by fraud (Health & Saf. Code, 11173, subd. (a)). In bifurcated proceedings, he admitted that he had a prior serious felony conviction of robbery within the meaning of the Three Strikes law ( 667, subds. (b)(i), 1170.12) and that he had three prior felony convictions for which he had served two separate prison terms ( 667.5, subd. (b)). The trial court denied his Romero motion, which requested that he be sentenced as a first-time offender (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to a total term of five years in state prison, consisting of a doubled middle term of two years, or four years, enhanced by a term of one year for the service of a separate prison term.
Court modify the abstract of judgment to reflect a sentence imposed of the middle term of two years, doubled to four years on count 1. The identical terms are imposed on count 2 and count 3, imposed concurrently, and stayed pursuant to section 654. The judgment is modified to reflect 166 days of presentence custody credit and 82 days of presentence conduct credits, for a total credit of 248 days. Finally, a one-year term is imposed for the prison prior on count 1. In all other respects, the judgment is affirmed.

In 2006, a dispute arose between plaintiff Delois, then a tenant of defendants in a live/work space on Harrison Street in San Francisco, and defendants. The dispute, described in more detail below, was purportedly resolved by a written agreement between the parties. But various and sundry factors led to alleged breaches of that agreement; in any event, plaintiff did not vacate the premises on the date agreed upon in the settlement agreement and, as a result, defendants did not forgive the past due rent or return the security deposit as they would have done pursuant to that agreement.

Regulo Jesus Payan, also known as Leopoldo Ruiz and Mario Gutierrez, appeals from the judgment entered upon his conviction by jury of first degree murder (Pen. Code, 187, subd. (a)).[1] The jury found to be true the firearm allegation within the meaning of section 12022.5, subdivision (a). The trial court sentenced appellant to state prison for 25 years to life plus two years for the firearm enhancement. Appellant contends that the trial court erred (1) in allowing evidence of a prior felony conviction and his probationary status as evidence of flight, and (2) in allowing admission of hearsay evidence from Department of Motor Vehicles (DMV) records, obtained through the California Law Enforcement Telecommunications System (CLETS), linking appellant to a vehicle involved in the incident. Court affirm.

Plaintiffs, limited partners, appeal from a judgment after court trial, in favor of the corporate general partner and its board chairman, in a class action for negligence, breach of contract, breach of fiduciary duty, and breach of covenant of good faith and fair dealing. Plaintiffs assert error in the denial of their motion to file a second amended complaint, the respective grant and denial of motions for judgment on the pleadings with respect to an accounting cause of action, and numerous aspects of the trial courts decision and statement of decision. In addition, plaintiffs seek to challenge an order refusing to disqualify defendants attorneys for conflict, from which plaintiffs dismissed a prior appeal. Discerning no prejudicial error, Court affirm the judgment.

Jesus Acosta appeals from his convictions for sale of cocaine and possession of cocaine for sale. His sole contention is that the trial court abused its discretion by denying his motion for a continuance made for the first time on the day set for trial. Court find no abuse of discretion and affirm the judgment.

A jury convicted defendant Johnnie Lee Fields of the second degree murder and child homicide of his four-month-old daughter. (Pen. Code, 187, 273ab; see People v. Norman (2003) 109 Cal.App.4th 221, 224.) The trial court sentenced defendant to 25 years to life for child homicide and imposed but stayed a sentence of 15 years to life for murder. Defendant timely filed this appeal.
Defendant contends the trial court improperly allowed an excessive break during jury deliberations, made inconsistent evidentiary rulings, and failed to instruct the jury on involuntary manslaughter; he also contends his trial counsel was incompetent in several respects. Court shall affirm.

E. Gail Garatie-Symonds appeals from an order denying her petition to confirm that real property owned by her deceased husband, Henry R. Symonds III (husband), is an asset of an inter vivos trust. (Prob. Code, 1300, subd. (k); 850, subd. (a)(3)(B).)[1] Husband died intestate, but before his death, signed a declaration of trust and general assignments to fund the Henry R. Symonds III and E. Gail Garatie-Symonds Living Trust (trust). The trial court found that the general assignments do not satisfy the statute of frauds which requires that an express trust of real property not only be in writing but describe the real property so that it can be identified with reasonable certainty. ( 15206.) Court affirm.

A jury found defendant Jim Dean Wolfenbarger to be a Sexually Violent Predator (SVP). (Welf. & Inst. Code, 6600, et seq.; further unspecified section references are to this code.) The trial court committed him to the Department of Mental Health (Department) for an indeterminate term, and defendant timely appealed. Defendant raises a number of legal contentions that have been rejected by other cases, some of which are now pending before the California Supreme Court. Court reject each of his contentions and affirm the judgment.