CA Unpub Decisions

A jury convicted defendant and appellant David M. Pacheco (defendant) of first degree murder (Pen. Code, 187, subd. (a)[1]), two counts of attempted murder ( 664/187, subd. (a)), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). As to the murder and attempted murder convictions, the jury found true the special allegations that defendant personally used a firearm ( 12022.5, subd. (a)(1), 12022.53, subd. (b)), personally discharged a firearm (12022.53, subd. (c)), personally discharged a firearm causing great bodily injury and death (12022.53, subd. (d)), and personally discharged a firearm at an occupied motor vehicle, causing great bodily injury and death ( 12022.5, subd. (b)(1)). The jury also found true the special allegations that defendant was on probation when he committed murder and attempted murders (12022.1, subd. (f)) and that he committed those offenses for the benefit of a criminal street gang (186.22, subd. (b)(1)(A)). The trial court sentenced defendant to state prison for 130 years to life, plus eight months. On appeal, defendant contends that the trial court erred when it failed to instruct the jury, sua sponte, on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses of murder and attempted murder, and that there is insufficient evidence to support the criminal street gang sentence enhancement. Court affirm.

After minor and appellant, Octavio T., was arrested for possessing a firearm, the juvenile court declared him a ward of court, removed him from his parents care, and ordered him suitably placed. On appeal, Octavio T. contends that the trial court abused its discretion in ordering a suitable placement. Court disagree, and Court therefore affirm the judgment.

Defendant appeals an order imposing probation conditions that require him to submit to random polygraph examinations (the polygraph condition) and prohibit him from associating with minors without a probation approved adult present (the nonassociation condition). Palmer contends: (1) the polygraph condition is invalid because it does not meet the criteria for a valid probation condition under People v. Lent (1975) 15 Cal.3d 481, and is unconstitutionally overbroad; and (2) the nonassociation condition violates his freedom of association and familial privacy. The order is modified to remove questions relating to stalking programs from the polygraph condition; the order is otherwise affirmed.

Appellant, pled guilty to possession of cocaine base for sale (Health & Saf. Code, 11351.5) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i)). Following a timely appeal, this court found that the trial court erred in not appointing second counsel to represent Brown in preparing a motion to withdraw plea and remanded the matter to the trial court. On July 7, 2006, the trial court denied Browns motion to withdraw his plea. On appeal, Brown contends the trial court abused its discretion when it denied his motion to withdraw plea. Court affirm.

This criminal appeal arises from the murder of Sandra Kay Morris, who was shot to death on Thanksgiving Day 1989. Nearly 15 years later, a jury found defendant Milburn Lunghi guilty of the first degree murder of Morris with special circumstances and returned a verdict of life in prison without the possibility of parole. On appeal, defendant asserts that numerous errors occurred during the guilt phase of his trial and that the trial court erred when imposing a $200 parole revocation fine pursuant to Penal Code section 1202.45. Court reject all of defendants claims, save for that relating to the parole revocation fine which, as the People concede, is well taken. Court order the abstract of judgment amended to strike the parole revocation fine, and affirm the judgment in all other respects.

The Division of Apprenticeship Standards (Division or DAS) authorized the Plumbing, Heating and Cooling Contractors of the Greater Sacramento Area Plumbers Unilateral Apprenticeship Committee (PHCC) to expand the geographic area for its apprenticeship program. PHCC is a nonunion unilateral multi employer association that sponsors an existing apprenticeship program training apprentices the plumbing trade. Appellants, existing joint labor-management apprenticeship training programs, had objected to the expansion and filed an administrative appeal with the California Apprenticeship Council (Council). The Council affirmed the Divisions action. Appellants petitioned the San Francisco Superior Court for a writ of administrative mandamus (Code Civ. Proc., 1094.5) to overturn the decision of the Council. The trial court denied the writ petition. This timely appeal followed.
Appellants contend the trial court erred in refusing to issue the writ of mandamus because the Council abused its discretion by upholding the Divisions decision approving expansion where: (1) the Division failed to provide appellants with notice and the opportunity to comment upon substantial revisions to PHCCs application; (2) the Division Chief failed to make findings of fact required by the governing regulations; and (3) the required findings were not supported by substantial evidence in the record. Appellants further argue the trial court erred (4) in concluding that it lacked jurisdiction to set aside the Divisions order or to issue any rulings against the Division because the Division was not a party to the action, and (5) in using a balancing the equities test to refuse to terminate PHCCs present mode of operations.

Kevin W. appeals a disposition order removing his daughter from parental custody and placing her in foster care. He argues the agency failed to comply with substantive requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. 1901 et seq.) and state dependency law. Court affirm.

Louis J. Cisz III (the father) appeals from an order granting the petition of Doreyne Douglas (the mother) to change the name of the parties child from Cassidy Jane Cisz to Cassidy Jane Douglas. Court reverse.

Amanda B. appeals an order terminating her parental rights to her child Darrell H. Among other things, she contends that the beneficial relationship exception precluded termination of parental rights. Court affirm.

This appeal by Robert Padgett, deceased, through Donna Little, personal representative (appellant), challenges the trial courts conclusion that respondent Beverly Padgett is entitled to a share of her former husbands pension benefits. Respondent contends the order from which the appeal was taken is not appealable. Court agree and dismiss the appeal.

This large and complicated appeal arises out of the winding up of a partnership. Appellant Ralph W. Boshes (Boshes), one of the original partners of The Verdugo 5 partnership, asserts, inter alia, that the trial court erred in (1) finding that he did not have a right to purchase the partnerships real property at liquidation upon dissolution; (2) failing to conduct a proper accounting for the partnership; (3) determining that respondents Ronald Lasken (Lasken) and the London Trust[1]each held a 40 percent interest in the partnership and its property; (4) applying equitable doctrines against Boshes and his claims asserted in this litigation; and (5) imposing costs against Boshes and denying his request for attorney fees. Like the trial court, Court are largely unpersuaded by Boshess contentions.
Court agree with Boshes that the trial court erred in failing to conduct a proper accounting for the partnership. The matter is remanded to the trial court to conduct a complete accounting of the partnership; an account must be taken from the beginning until the end of the partnership. We also agree with Boshes that the trial court erred in ordering him to pay the balance owed to the receiver ($1,600) as of November 22, 2005; because that amount was not set forth in respondents memoranda of costs, Boshes was not given an opportunity to challenge that cost. Thus, that portion of the trial courts judgment requiring Boshes to pay $1,600 is reversed and remanded to the trial court for proper allocation.
In all other respects, the judgment is affirmed.

Appellant Jonathan Robert Cuccias appeals from a judgment dismissing his conversion action, entered during a bench trial after the court invited and granted a motion for judgment pursuant to Code of Civil Procedure section 631.8, on the ground that appellant was not the owner of the allegedly converted motor vehicle.[1] Appellant contends that the motion was an unauthorized sua sponte motion, and that the court erred in finding that his signature under penalty of perjury on the certificate of title to the vehicle effected a transfer of ownership as a matter of law, despite the absence of a transferee or the satisfaction of other formalities required by the Vehicle Code. Although we reject appellants contention that the courts manner of proceeding requires reversal, we agree the court erred in granting the motion, and Court reverse the judgment.

Mother, father and the siblings (James and Stacey) appeal from an order of the juvenile court terminating parental rights for Tiffany and B. following hearings under Welfare and Institutions Code section 366.26.[1] Collectively, appellants contend there was no substantial evidence to support the juvenile courts finding that the parental relationship exception of subdivision (c)(1)(A), the child veto exception of subdivision (c)(1)(B) and the sibling relationship exception of subdivision (c)(1)(E) did not apply to the facts of this case. Mother separately argues that if a child over 12 is ambivalent about being adopted, the court must find that the child is presently not adoptable and refuse to terminate parental rights. Finding no error, Court affirm.

A three-count petition alleged that 15-year-old Giovanny S. shot at an inhabited dwelling, shot at an unoccupied vehicle, discharged a firearm with gross negligence, and (as to all counts) personally used a firearm. (Welf. & Inst. Code, 602; Pen. Code, 246, 247, subd. (b), 246.3, 12022.5, subd. (a).) Following an adjudication hearing at which one witness testified that she saw Giovanny firing shots at a certain intersection at 2 p.m. one day, then get into a white Honda Civic (registered to a person living at Giovannys residence), and another witness testified that at 5:30 p.m. the same day and near the same intersection, she heard shots and saw Giovanny with a gun in his hand getting into the same car. The juvenile court sustained the allegation that Giovanny had discharged a firearm with gross negligence (a felony), and found true the allegation that he personally used a firearm. Giovanny was declared a ward of the court and ordered into a six-month camp program with the period of confinement not to exceed 13 years.
Based on our independent examination of the record, we are satisfied that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436.)
The order is affirmed.