CA Unpub Decisions
California Unpublished Decisions
In April 2017 a stipulated final judgment of dissolution was entered dissolving the 18-year marriage of Howard Walther (appellant) and Kira Walther (respondent). Approximately three years later in March 2020, appellant filed the petition seeking to annul his already dissolved marriage. The petition seeks to nullify his dissolved marriage on the ground that respondent had committed fraud and bigamy. Proceeding in propria persona, appellant purports to appeal from a judgment of dismissal entered after the trial court had sustained respondent’s demurrer without leave to amend and had struck the petition as a “sham pleading.” We affirm because the stipulated final judgment of dissolution operates as res judicata on the issue of the legality of the parties’ marriage. It conclusively establishes that they were legally married and that the marriage cannot be annulled.
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Father challenges orders placing his daughter E.S. with an out-of-state nonrelated family member and later terminating dependency jurisdiction with a legal guardianship for the nonrelated family member. Father contends the court made the original placement order in violation of the Interstate Compact on the Placement of Children (ICPC or Compact, Fam. Code, § 7901 et seq.) and he maintains the evidence was insufficient to support the court’s finding that returning E.S. to his custody would be detrimental to the child’s health and safety. He also argues the court erred in denying his petition to modify the order terminating reunification services without a hearing. (See Welf. & Inst. Code, § 388.) We affirm.
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Appellant Felipa Baccari, a City of Long Beach police officer for more than 19 years, was terminated following her involvement in an off-duty incident of “road rage.” She challenged her termination by way of administrative review (Skelly v. State Personnel Board (1975) 15 Cal.3d 194), then filed a petition for administrative mandate. (Code Civ. Proc., § 1094.5.) Her challenges were both denied, albeit one of the administrative law judges thought the penalty was too severe. Baccari appeals, claiming the punishment doesn’t fit the crime. We disagree and affirm the judgment.
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The trial court denied the Penal Code section 1170.95 petition filed by Donvay LaMarr Burns (appellant) to vacate the voluntary manslaughter conviction entered against him pursuant to a plea agreement. On appeal, he claimed that the trial court erred when it followed People v. Cervantes (2020) 44 Cal.App.5th 884, 886 (Cervantes) and ruled that he was ineligible for relief because the statute applies to murder convictions but not voluntary manslaughter convictions based on no contest pleas. Alternatively, he contended that section 1170.95 violates equal protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and substantive due process.
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This is the second appeal arising from a default judgment entered in favor of plaintiff and appellant Keith Troy and against defendants and respondents G. De Cohen, Inc. (GDI) and Geraldine De Cohen. In our prior opinion, we reversed the trial court’s order setting aside the default, finding that respondents’ motion for discretionary relief under Code of Civil Procedure section 473, subdivision (b) (section 473(b)) was untimely. On remand, respondents again moved to set aside the default, this time based on the court’s equitable powers. The trial court granted the motion and set aside the default.
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In September 2014, respondent Lisa Wong filed for divorce from appellant Boschal Lee. After a court trial, the family court issued a judgment in September 2018 that resolved certain property division issues. Approximately one year later, Lee, through his former counsel, moved to vacate the judgment.
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Plaintiff and respondent City of Los Angeles (the City) imposes a transient occupancy tax (TOT) on individuals who stay in hotels located in the City for no more than 30 consecutive days. The City requires hotel operators to collect this tax from their guests and remit the funds to the City on a regular basis. Exempt from the tax is any occupancy as to which rent is paid by the Emergency Food and Shelter National Board Program.
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Michael Anthony Montano appeals the trial court’s denial of his petition to vacate his convictions for murder and attempted murder under Penal Code section 1170.95 (Section 1170.95). Montano alleged that the jury convicted him of both crimes under the natural and probable consequences doctrine, which has since been invalidated as a basis for murder or attempted murder liability by Senate Bill No. 1437 (2017 2018 Reg. Sess.) (SB 1437). After issuing an order to show cause and holding an evidentiary hearing, the court denied the petition. The court principally reasoned that in light of certain language in the jury’s instruction on the elements of attempted murder, Montano’s convictions necessarily reflected a jury finding that Montano was guilty of both charged offenses under a direct aiding and abetting theory. With respect to the attempted murder conviction, the court additionally reasoned that Section 1170.95 did not apply to attempted murder. Section 1170.95 has since been amen
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Defendant and appellant Carlos Garcia (appellant) appeals following his conviction of first degree murder and other charges. He contends that his trial counsel’s failure to request a pinpoint instruction on provocation constituted ineffective assistance of counsel, that insufficient evidence supports the jury’s finding the murder was in the first degree, and that denying him the opportunity for a youth offender parole hearing violates his constitutional right to equal protection of the laws. We affirm.
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Appellant Vanity L. (mother) is the mother of a three-year old daughter Z.C. and a two-year old son, V.C. Mother’s parental rights were terminated at a Welfare and Institutions Code section 366.26 hearing and she appeals, arguing that the juvenile court improperly applied the law of the parent-child beneficial relationship exception as set forth in our Supreme Court’s decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). We agree, and reverse
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Defendant Jason Edward Smith, Sr., appeals from the trial court’s imposition of a stipulated three-year prison term following Smith’s guilty plea to a single count of first degree residential robbery. After the trial court granted Smith’s request for a certificate of probable cause—allowing him to appeal from the preplea denial of his motion to dismiss under Brady v. Maryland (1963) 373 U.S. 83 (Brady)—Smith’s appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues and requesting that this court review the record and determine whether any arguable issue exists on appeal. Having done so, we affirm.
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A jury found defendant Pedro Jesus Gomez guilty of attempted murder in 2001. (Pen. Code, §§ 187, subd. (a), 245, subd. (b), 664.) The jury also found true the allegations that Gomez committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, and that he intentionally and personally discharged a firearm causing great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) The trial court imposed an aggregate term of life consecutive to terms of 25 years to life for the firearm enhancement and 10 years for the gang enhancement. The court also imposed a nine-year term on the assault count, plus two consecutive 10-year enhancements for the gang and firearm enhancements for a term of 29 years, which the court stayed under section 654.
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Appellant Zeus Murillo Serrano appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95, which was enacted as part of a measure that restricted liability for the crime of murder. (See Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) Under that section, a murderer may apply for resentencing if he was convicted under vicarious liability principles, but he is not entitled to relief if the record of conviction shows he acted with actual malice, i.e., the intent to kill. (See People v. Lewis (2021) 11 Cal.5th 952; People v. Gentile (2020) 10 Cal.5th 830.)
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