CA Unpub Decisions

Nine of the fifteen general partners in a general partnership filed an action for dissolution of the partnership. A stipulated judgment was entered dissolving the partnership. Five general partners who were not parties to the dissolution action purport to appeal from the stipulated judgment. These nonparty partners never attempted to intervene in the trial court and never filed a motion to vacate the judgment. Accordingly, they lack standing to appeal from the judgment, and their purported appeal must be dismissed.

Appellant Jackie Love was charged by information with possession for sale of cocaine base (count 1) (Health & Saf. Code, 11351.5); possession of a firearm by a felon (count 2) (Pen. Code 12021, subd. (a)(1)); possession of ammunition (count 3) (Pen. Code, 12316, subd. (b)(1)); and misdemeanor possession of marijuana (count 4) (Health & Saf. Code, 11357, subd. (b)).
Appellant entered a plea of not guilty. She filed a motion pursuant to Penal Code section 1538.5 to suppress evidence seized during a search of her home. The trial court denied the motion and, pursuant to a negotiated plea, she entered a plea of no contest to possession for sale of cocaine base. The remaining counts were dismissed. The trial court suspended sentencing and placed appellant on three years formal probation with the condition that she serve 180 days in county jail. Appellant claims her suppression motion should have been granted and the evidence seized from her apartment excluded. She contends the matter must be remanded so she can withdraw her plea. Court disagree and affirm.

This case concerns a dispute among family members over the ownership of certain real property located at 6934, 6936, 6938, and 6940 Valmont Street, in Tujunga, California (the Valmont property). Defendants and appellants Manuel Banuelos (Manuel) and Hilda Diaz (Hilda) (Manuel and Hilda are referred to collectively as defendants) hold legal title to the Valmont property, and claim to be the sole legal and beneficial owners. Plaintiffs Soledad Banuelos (Soledad), Lazaro Banuelos (Lazaro), Felix Banuelos (Felix), and Elena Rodriguez (Elena) (collectively plaintiffs), claim that pursuant to the terms of an oral agreement, they and the heirs of Pablo Banuelos (Pablo), are beneficial owners of the Valmont property with Manuel. Felix and Elena are Manuels siblings; Soledad and Lazaro are Manuels parents; and Pablo, who is now deceased, was Manuels brother. The judgment is affirmed.

Barry McCoy appeals from the judgment entered following a court trial that resulted in his conviction of attempted second degree robbery (Pen. Code, 667/221)[1]arising out of the following facts. On May 17, 2006, appellant approached Sean Little in downtown Los Angeles and demanded change. Little said he did not have any money. Appellant called Little a liar, screamed in his face and again demanded change. Appellant took two steps away, turned around and punched Little twice in the chest. Appellant asked Little if he was going to do anything about it and said something derogatory to Little. Little was fearful that appellant was going to take his money. Appellant was sentenced to 32 months, consisting of the low term doubled. Court appointed counsel to represent him on this appeal.
After examination of the record, counsel filed a Statement by Counsel on Appeal Pursuant to People v. Wendein which no issues were raised. The judgment is affirmed.

Foster Lee Scott appeals from the judgment entered upon his conviction by jury of corporal injury on spouse or cohabitant (Pen. Code, 273.5, subd. (a)).[1] Defendant admitted having suffered a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of four years. Defendant contends that the trial court erred in failing to instruct the jury on the necessarily included offense of misdemeanor assault on a spouse without corporal injury within the meaning of section 243, subdivision (e)(1). Court affirm.

Quintin Monk (appellant) appeals from the judgments entered following his plea of no contest to one count of paying for prostitution in violation of Penal Code section 266e[1](count 10) and two counts of robbery in violation of section 211 (counts 5 & 7). The trial court sentenced appellant to the agreed-upon sentence of six years eight months in state prison. On count 10, the trial court imposed the low term of 16 months, doubled to 32 months due to appellants prior strike offense ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) On count 5, the trial court imposed one-third the midterm of three years, or one year, doubled to two years due to the prior strike. On count 7, the trial court imposed one-third the midterm, one year, doubled to two years because of the prior strike. The court ordered appellant to pay a total of $208,415 in victim restitution. The trial court dismissed the remaining seven counts.
Court appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an Opening Brief which contained an acknowledgment that she had been unable to find any arguable issues. On May 29, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. The appeal is dismissed.

Following a review hearing conducted pursuant to Welfare and Institutions Code section 366.22,[1]the juvenile court ordered that a hearing be held pursuant to section 366.26, to develop a permanent plan for the dependent child Andrew V. At that hearing, the juvenile court ordered parental rights terminated. Maximiliano V. (Father) appeals from the order terminating parental rights, contending that the juvenile court could not terminate parental rights without first making a finding that Father was an unfit parent, and that it failed to do so, thereby depriving Father of due process. We conclude that the court did in fact make the requisite finding by determining that returning Andrew to Fathers custody posed a risk of detriment, and therefore Father was not denied due process in that regard.
Father also contends that he was not afforded reasonable reunification services. Although ordinarily review by extraordinary writ is the only remedy provided in section 366.26, subdivision (l) to address allegedly erroneous findings regarding the sufficiency of reunification services and referral to a section 366.26 hearing, we address the issue on this appeal because Father was not given notice of his right to file a writ. Because we conclude that the record is devoid of substantial evidence to support the finding that reasonable reunification services were offered or provided to Father, and because the court failed to enter other findings prerequisite to referring the matter to a section 366.26 hearing, Court reverse the order terminating parental rights and remand the matter to the juvenile court for further consideration.

Nancy A. (mother) appeals from the juvenile courts termination of her parental rights to daughter H.A. (minor), now age four, pursuant to Welfare and Institutions Code section 366.26. Mother contends there was insufficient evidence to support the courts finding that the beneficial relationship exception to termination under section 366.26, subdivision (c)(1)(A) did not apply. Court affirm.

Following the trial courts denial of his request for an in camera review of several police officers personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), a jury found Reginald Sibley (Sibley) guilty of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) and the trial court found true allegations Sibley had suffered a prior felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)(i); 1170.12, subds. (a)(d)) and a prior felony conviction for which he served a prison term ( 667.5, subd. (b)). The trial court sentenced Sibley to five years in prison. Sibley appealed. In our nonpublished opinion in People v. Sibley (December 1, 2006, B185988) Court reversed the judgment and remanded the matter to the trial court with directions to hold a Pitchess hearing pertaining to the discovery of evidence of dishonesty, i.e., evidence relating to the making of false arrests, planting evidence, fabricating police reports or probable cause, or committing perjury, on the part of three named police officers. After holding the appropriate in camera hearing, the trial court concluded none of the information contained in any of officers files was relevant. Accordingly, the trial court reinstated the judgment. Sibley appeals from the trial courts reinstatement of the judgment. Court affirm.

Anastasia F., appearing in propria persona, petitions for extraordinary relief from a dependency court order terminating reunification services with regard to her son, Truth F. (Cal. Rules of Court, rule 8.452.) Court deny the petition.

A jury convicted Jackie Lee Townsend of first degree murder and found he used a firearm and caused great bodily injury. (Pen. Code, 187, 12022.5, subd. (a), 12022.53, subd. (d).) The trial court sentenced him to prison for 50 years to life and he timely appeals.
Defendants main contentions of error center on the instructions, argument and evidence pertaining to provocation, which can reduce a murder to manslaughter. Defendant claims the trial court improperly instructed on provocation and allowed the prosecutor to misstate the law of provocation in argument; however, because the trial court should not have given any instruction on provocation, we need not address whether those instructions and argument were correct as to manslaughter. Out of an abundance of caution we construe his briefs to raise the separate but connected contention that similar claimed errors impaired the jurys ability to properly consider whether there was provocation sufficient to reduce the murder to second degree murder. We also find that evidence about the victims mental health would not have cured the lack of the evidence of provocation, therefore we need not decide whether that evidence was properly excluded. Court also address two minor arguments. We reject defendants claim that he is entitled to an additional day of custody credit due to the delay between his arrest and his arrival at jail, but accept his claim that a stayed enhancement must be stricken, a claim conceded by the Attorney General. Court modify the judgment and affirm.

This dispute between former business associates gave rise to two separate actions between the same parties. One arbitrator heard both cases and denied relief to all the parties. Euro Stars Sales & Dismantling (Euro Stars) filed in the superior court a timely request for trial de novo in the case in which it was the defendant. But it failed to request trial de novo in this case, in which it was the plaintiff, and judgment was entered against Euro Stars. Nearly six months after entry of judgment, Euro Stars moved to set it aside. (Code Civ. Proc., 473, subd. (b); Cal. Rules of Court, rule 3.828.) The superior court denied relief. Refusing to construe Euro Stars request for trial de novo in one action between the parties as a request for trial de novo in both cases, the court ruled that counsel for Euro Stars failed either to act promptly after entry of judgment or to explain why he did not seek to set aside the judgment until the statutory six-month period had almost expired. Euro Stars appeals. Court find no error and affirm the judgment.

Defendant Billy James Hammett was charged in three separate cases with having committed violent crimes on three separate occasions. He entered a negotiated plea of guilty to assault by means of force likely to produce great bodily injury and admitted that the offense was committed while he was participating in a criminal street gang. In exchange for his plea, additional counts and complaints were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), and it was agreed that he would receive a maximum of six years in state prison (the upper term of four years for felony assault, plus the low term of two years for the gang enhancement). On appeal, defendant contends that imposition of the upper term based on facts not submitted to a jury violated his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (hereafter Cunningham)), and he challenges the trial courts statement that he must verify his compliance with the gang registration requirement. Court affirm the judgment.

Kathy Bryer injured her back on the job in May 2004 and received temporary disability benefits for her injury from July 2004, through April 2005. The question here is which schedule governed the rating of her permanent disability -- the 2005 schedule (which the workers compensation administrative law judge (WCJ) applied) or the 1997 schedule (which the Workers Compensation Appeals Board (WCAB) applied on reconsideration). As we will explain, we agree with petitioner Travelers Indemnity Company of Illinois (Travelers) that the 2005 schedule governs. Accordingly, Court annul the WCABs order granting Bryers petition for reconsideration and direct the WCAB to reinstate the WCJs decision.