CA Unpub Decisions

Following a court trial, petitioner Kelly Morgan Culver was convicted of one count of the sale or transportation of marijuana. He asked trial counsel to file a notice of appeal on his behalf which counsel agreed to do. Unfortunately, the notice of appeal was filed on November 28, 2007, one day late due to an admitted oversight by trial counsel. A petition for relief for failure to file a timely notice of appeal has been filed. (In re Benoit (1973) 10 Cal.3d 72.) The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.
Good cause appearing, and the Attorney General having effectively waived the necessity of filing an order to show cause, the petition is granted. On petitioners behalf, attorney Lynelle K. Hee is directed to prepare and file a notice of appeal in Orange County Superior Court case number 07HF0301, and the clerk of the superior court is directed to accept the filing if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.

In case No. H028588, appellant and cross-respondent Sharon Cioffi (Sharon) appeals from a judgment on reserved issues in a dissolution case. Cross appellant and respondent John Cioffi (John) also appeals. Both parties raise issues regarding property distributed in the judgment. We conclude that the trial courts finding on the apportionment of certain stock options was ambiguous, and that there was insufficient evidence to support the trial courts finding that John waived his separate property interest in the proceeds from the options. Thus, the judgment is reversed. In case No. H029712, Sharon appeals from an order that determined the equalization payment due under the judgment in case No. H028588. Since the judgment in case No. H028588 has been reversed, the order in this case must also be reversed. The judgment in case No. H028588 is reversed. John is awarded his costs on appeal. The order in case No. H029712 is reversed. The parties are to bear their own costs on appeal.

A jury convicted defendant Steven Dorell Wilson of one count of assault with a deadly weapon (Pen Code, 245, subd. (a)(1)) [1] and seven counts of first degree robbery ( 211, 212.5, subd. (a)) arising out of a home invasion robbery. Each of the robbery counts involved a different victim. The jury found true enhancement allegations that defendant had personally used a handgun in committing the robberies ( 12022.53, subd. (b)). In a bifurcated proceeding, the court found true enhancement allegations that defendant had one prior conviction within the meaning of the Three Strikes Law ( 667, subds. (b)(i); 1170.12). Defendant was sentenced to 56 years in prison.
On appeal, defendant contends the court abused its discretion when it admitted evidence regarding a shooting that occurred at the scene of the robbery shortly after the victims testified at the preliminary hearing and when it limited defendants cross examination of two of the victims. Defendant asserts the prosecutor committed misconduct in various respects during closing argument. He argues that defense counsel was ineffective for failing to object to certain documentary evidence, for failing to request a limiting instruction regarding the evidence of the shooting, and for failing to object when the prosecutor argued the shooting proved identity in violation of the courts order. Defendant contends the court erred when it failed to stay the sentence on the assault with a deadly weapon under section 654 and that there was cumulative error that requires reversal. Court find no prejudicial error and affirm.

Defendant was convicted after jury trial of obliterating the identification information of a firearm (Pen. Code, 12090).[1] The jury also found true an allegation that defendant committed the offense for the benefit of or in association with a criminal street gang. ( 186.22, subd. (b)(1).) The trial court sentenced defendant to seven years in state prison. On appeal defendant contends: (1) the prosecutor improperly used peremptory challenges to exclude Hispanics from the jury; (2) the evidence is insufficient to support the finding that he obliterated the serial number on a firearm; (3) the trial courts instruction to the jury that it may presume he obliterated the firearms serial number simply because he possessed the firearm unconstitutionally relieved the prosecution of its burden of proof; (4) the evidence is insufficient to support the finding that he possessed the firearm for the benefit of or in association with a criminal street gang; and (5) imposition of the upper term based on facts not found true by a jury beyond a reasonable doubt violated his right to due process. The Attorney General concedes both contentions (2) and (3), and Court agree with the concessions. Accordingly, Court reverse the judgment and Court not discuss the remaining contentions.

The beneficiary of a trust filed a petition seeking to vacate a prior order terminating the trust. The beneficiary asserted that the trustee had committed fraud. After the beneficiarys petition was taken off calendar, the trustee filed a petition seeking discharge. The trustees petition was granted, and the beneficiarys estate appeals. The estate claims that the court erred in discharging the trustee without holding an evidentiary hearing on the beneficiarys petition. Court find that there is no appealable order before us regarding the beneficiarys petition and reject the estates remaining challenges to the courts order discharging the trustee.

Defendant Emily Morago Supnet pleaded no contest to possession of methamphetamine (Health & Saf. Code, 111377, subd. (a)) and possession of controlled substance paraphernalia (Health & Saf. Code, 11364). The trial court suspended imposition of sentence and placed defendant on probation for two years under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). The trial court imposed several conditions of probation, including that defendant not possess or consume alcohol or illegal drugs or frequent places where they are sold or consumed. Defendant contends that this condition is unconstitutionally vague and overbroad. Court agree and modify the condition. As modified, the order is affirmed.

Geraldo Salinas died as the result of multiple stab wounds. A jury found appellant Luis Rene DeLeon guilty of the second degree murder of Salinas and found true an allegation that DeLeon used a knife during the commission of the offense. (See Pen Code,[1] 187, subd. (a), 189, 12022, subd. (b)(1).) The trial court denied his motions for new trial and to reduce his conviction to manslaughter. DeLeon was sentenced to state prison for an indeterminate term of 15 years to life with the possibility of parole. On appeal, he contends that there was insufficient evidence of malice necessary to support the second degree murder conviction, requiring that we reduce his conviction to voluntary manslaughter. Court affirm the judgment.

Stephen S. appeals from jurisdictional and dispositional orders declaring his children dependents of the juvenile court and placing them in out-of-home care. He contends the evidence was insufficient to support either order. We conclude the children were properly within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). But there was no clear and convincing evidence that the children would be substantially endangered if returned home or that there were no means of protecting them short of removal. Court therefore affirm the jurisdictional order, reverse the dispositional order and remand the matter to the juvenile court.

Jose B., the father of two minor children, appeals from orders reducing the frequency of his visitation with his children and summarily denying his Welfare and Institutions Code section 388 petition to modify previous orders. Court affirm.

Defendant appeals from an order revoking his outpatient status pursuant to Penal Code section 1608. His counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Court affirm.

Plaintiff Behzad Amini appeals from a summary judgment entered in his lawsuit against defendants Southern California University of Health Sciences (the University) and various entities, administrators, and faculty members of the University. Amini, who was a first-year chiropractic student, alleged that defendants discriminated against him in grading his midterm examinations in one of his classes, failed to follow the procedures set forth in the Student Handbook when investigating his discrimination complaint, retaliated against him by suspending him, and failed to follow proper procedures when they suspended him. The undisputed evidence before the trial court showed, however, that Amini cannot establish discriminatory animus or retaliation by defendants, and that Amini was not injured by any failure by defendants to follow proper procedures. Accordingly, Court affirm the judgment.

Azeez Momoh appeals the judgment entered after a jury convicted him of attempted willful, deliberate, premeditated murder (Pen. Code[1], 664/187, subd. (a)); first degree burglary ( 459, 460, subd. (a)); assault with a semiautomatic firearm ( 245, subd. (b)); threatening a witness ( 140, subd. (a)); dissuading a witness by force or threat ( 136.1, subd. (c)(1)); two counts of false imprisonment by force or violence ( 236); misdemeanor false imprisonment ( 237, subd. (a)); and possession of a firearm by a felon ( 12021, subd. (a)(1)). Momoh admitted three prior convictions as to the section 12021, subdivision (a)(1) charge, and also admitted the allegations that he had served three prior prison terms ( 667.5, subd. (b)). The jury also found true the allegations that Momoh personally inflicted great bodily injury in committing the attempted murder ( 12022.7, subd. (a)), and that he personally used a firearm in committing the assault with a firearm and one count of false imprisonment, and in threatening and dissuading a witness ( 12022.5). Prior to sentencing, the trial court dismissed count 7 (false imprisonment of Rian Frazier) due to insufficient evidence ( 1118.1). Momoh was sentenced to a total term of life with the possibility of parole plus 23 years two months, consisting of: life for the attempted murder plus three years for the great bodily injury enhancement, a consecutive upper term of nine years for the assault with a firearm count plus an additional 10 years for the firearm enhancement, eight months (one-third the midterm) for the false imprisonment of Marquis Smaulding, and six months for the misdemeanor false imprisonment. He contends (1) the evidence is insufficient to support his attempted murder conviction; (2) the evidence is insufficient to support his conviction for felony false imprisonment of Marquis Smaulding; (3) the trial court abused its discretion in admitting certain gang evidence pursuant to Evidence Code section 352; (4) the court violated its sua sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter; (5) the court had a sua sponte duty to give a pinpoint instruction on provocation; and (6) he was sentenced to the upper term in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. Court affirm.

In this dissolution proceeding, the trial court struck the responsive pleading of appellant Frank Cuykendall and entered a default judgment in favor of respondent Robin Breda. Frank[1]contends that the court abused its discretion by (1) imposing a terminating sanction, (2) awarding spousal support in the amount of $630 until Robin remarries or dies or the court otherwise orders, (3) determining the value of Frank's law practice to be $300,000 and awarding Robin an equalizing payment of $150,000, and (4) awarding attorneys' fees in the amount of $20,000. Court affirm.

James Riley Hicks appeals the judgment recommitting him to the California Department of Mental Health for treatment as a sexually violent predator (SVP). (Welf. & Inst. Code, 6600 et seq.) We conclude, among other things, that the trial court did not err by admitting a police report containing a child victim's statements or by allowing expert testimony on ultimate issues. Admitting probation reports with sentencing information was not reversible error. Hearsay permitted in SVP proceedings does not violate the Sixth Amendment. The SVP Act (SVPA) is not an ex post facto law and does not violate equal protection. Court affirm.