CA Unpub Decisions

J. Michael Paulson, as trustee of the Allen E. Paulson Living Trust u/d/t December 23, 1986 (Trustee), appeals from a probate court order denying his motion for contractual prevailing party attorney fees and costs on grounds it lacked subject matter jurisdiction. The court entered its order on remand after this court held the probate court did not have subject matter jurisdiction to enforce a settlement agreement entered into between Trustee and respondent Madeleine Paulson (Madeleine). Conceding the probate court lacked subject matter jurisdiction to summarily enforce the parties' settlement agreement, on appeal, Trustee contends the court nevertheless had fundamental subject matter jurisdiction to award him his attorney fees as recoverable costs of suit. Court disagree, and affirm the order.

Tyrrall Farrow Cannon, acting in propria persona, appeals from an order sustaining a demurrer to his complaint filed against Riverside County, attorney Jeffrey J. Stuetz, and Associate Justices Thomas Hollenhorst, Barton Gaut and Betty Richli (respondent justices). The trial court sustained the demurrer of the respondent justices without leave to amend on grounds Cannon did not allege sufficient facts to state a cause of action because judicial immunity protected the respondent justices' acts; he did not allege compliance with government claims filing requirements; and he did not particularly allege facts establishing any liability against the respondent justices. On appeal, Cannon does not address the procedure or merits of the trial court's order, or cogently explain why his complaint states a viable cause of action. Nor does Cannon comply with the Rules of Court applicable to the substance and form of his briefs. We conclude Cannon has abandoned his appellate contentions to the extent they are ascertainable, and he has not overcome the legal presumption in favor of the correctness of the court's order. Court therefore affirm the order.

Natividad P. appeals orders adjudicating her infant son, Juan T., a dependent child of the juvenile court and removing him from her custody. Natividad contends the jurisdictional and dispositional orders were not supported by substantial evidence, and the court did not consider lesser alternatives to removing Juan from her custody. The orders are affirmed.

Beatriz M. and Leopoldo C. (together the parents) appeal a judgment of the juvenile court terminating their parental rights to their minor son, Christian M., under Welfare and Institutions Code section 366.26.[1] The parents challenge the sufficiency of the evidence to support the court's findings the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) and the sibling relationship exception of section 366.26, subdivision (c)(1)(E) did not apply to preclude terminating their parental rights. Leopoldo further contends the court erred by denying his request for a continuance of the selection and implementation hearing. Court affirm the judgment.

During a unified trial, Marquezs jury convicted him of second degree murder (Pen. Code, 187, subd. (a)) and Acostas jury convicted him of the same, of unlawfully taking/driving a vehicle (Veh. Code, 10851, subd. (a)) and of receiving a stolen vehicle (Pen. Code, 496d, subd. (a)). Acosta was sentenced to prison for 15 years to life plus two years and Marquez to 15 years to life. Both appeal, making various contentions, all of which we reject, save Acostas contention that his conviction of receiving a stolen vehicle should be reversed due to jury instruction error. We therefore reverse that conviction and affirm the remaining for both defendants.

In May 1999, a trial court found Robert E. Tighe to be a sexually violent predator (SVP)within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6600 et seq.).[1] The court committed Tighe to the Department of Mental Health for a two-year period of involuntary treatment. After two subsequent recommitments, in March 2005, the People filed a petition to continue Tighe's involuntary treatment. At a jury trial, the jury found Tighe to be an SVP. The trial court recommitted Tighe for an additional two year term, until May 26, 2007.
On appeal, Tighe claims that there is insufficient evidence to support the jury's findings that he suffers from a diagnosable mental disorder and that the disorder makes it likely that he will reoffend if released. Tighe also claims that the trial court erred in admitting evidence and argument pertaining to his prior SVPA commitments. Finally, Tighe contends that the SVPA violates the ex post facto and double jeopardy clauses of the state and federal Constitutions. Court affirm the judgment.

Appellant Daniel Lua Mendoza, Jr., was the driver in two drive-by shootings that occurred on May 22, 2004. Julian Espitia fired a handgun out the passenger window at two houses. A man was struck in the chest by a bullet, but he survived. An occupant of one of the houses admitted that he had been a member of the Original Gangsters Surenos (OGS), which is a Surenos subset. Gang expert Joe Aguilar testified that appellant is a member of the Brown Pride Catella (BPC), which is a Nortenos subset. Nortenos and Surenos are rivals. Appellant and six other BPC members had been injured in a drive-by shooting that occurred on February 28, 2004. Detective Aguilar opined that the May 22, 2204, drive-by shooting was committed to enhance and benefit the BPC. Appellant denied knowingly participating in the drive-by shootings. He testified that he was simply giving two friends a ride and Espitia unexpectedly fired a handgun out of the passenger window on two occasions.

Appellant was convicted after jury trial of three counts of attempted premeditated murder (counts 1, 4 & 5), two counts of shooting at an inhabited dwelling (counts 2 & 6), and two counts of permitting another to shoot from a vehicle (counts 3 & 7). Street gang enhancements were found true in connection with all the counts. It was found on count 1 that a principal personally and intentionally discharged a firearm proximately causing bodily injury and it was found on counts 4 and 5 that a principal personally and intentionally discharged a firearm. Appellant was sentenced to an aggregate term of 59 years to life imprisonment.

Appellant argues that the prosecutor misstated a controlling legal principle during his closing arguments and the court compounded the prosecutors error during its corrective advisement. As a result, the jury was permitted to convict him on an erroneous legal theory in violation of the rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We are not persuaded; neither the prosecutor nor the court misled the jury. Appellant also contends that he was improperly sentenced. Respondent concedes the sentencing errors and agrees that resentencing is required. Court accept respondents concession as properly made. Accordingly, Court affirm the convictions and remand for resentencing.

A jury convicted Phillip Wayne McNatt of oral copulation with a child under 18 years of age (Pen. Code, 288a, subd. (b)(1)) and annoying a child under the age of 18 ( 647.6, subd. (c)(2)). He argues his conviction must be reversed because (1) there was not substantial evidence to support the jurys finding that he was competent to stand trial ( 1367 et seq.); (2) the prosecutor committed misconduct during closing arguments during the competency phase of the trial; (3) the trial court erred in admitting propensity evidence pursuant to Evidence Code section 1108 during the guilt phase of the trial; (4) the jury instructions for the use of propensity evidence violated his constitutional right to due process; and (5) his aggravated sentence violated his Sixth Amendment right to a jury trial. Court reject each of these arguments and affirm the judgment.

On August 15, 2003, appellant filed a complaint against respondents alleging four causes of action: Conversion, declaratory relief, quiet title, and legal malpractice. Appellant claimed that respondents had represented him at various times during 2002 and 2003, and that they were in possession of documents relating to the Crawford U. Thomason Living Trust. He further alleged that respondents had refused to deliver the documents to him and that they had converted the records and assets of the trust to their own use and benefit, in violation of the California Rules of Professional Conduct. Court affirm.

Raul Ezequiel Rodriguez appeals from a judgment entered after a jury found him guilty of first degree burglary, making a criminal threat, felony vandalism, and knowingly violating a restraining order. He contends the trial court made a number of prejudicial instructional errors, and he claims the evidence is insufficient to support his conviction for knowingly violating a protective order. He also argues that, under Cunningham v. California (2007) U.S.[127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper term on his burglary conviction. Court reverse the misdemeanor conviction for knowingly violating a restraining order. In all other respects, Court affirm the judgment.

Defendant Deshawn E. contends the trial court erred in denying his motion to suppress evidence discovered during a pat down search by a uniformed police officer upon his entry as a spectator to a high school football game. The officer, searching for bottles of alcohol, found marijuana cigarettes in one of the front pockets of defendants pants. Because no evidence justified the pat search of defendants pants for bottles, Court hold that the prosecution failed to meet its burden of showing the reasonableness of the search, and Court reverse the juvenile court order.

This is an appeal from a Solano County Juvenile Court ruling sustaining the allegations of the Peoples jurisdictional petition by finding that appellant, age 12 at the time, had committed numerous acts of both anal and vaginal intercourse with his sister, then age eight, in violation of Penal Code sections 288.5, subdivision (a), 288, subdivision (a), and 286, subdivision (b)(1). The court ordered appellant placed in a residential sex offender program for a maximum period of 16 years. Court affirm the juvenile courts orders.

A modification decision.

Plaintiff and appellant Eric Armitage, in propria persona, appeals a summary judgment in favor of defendant and respondent First American Title Insurance Company (First American) in Armitages action for breach of a title insurance policy. He principally contends there are triable issues of material fact regarding First Americans obligation under the policy to defend him in an easement dispute with his neighbors and to provide coverage for defects on his title by two purportedly recorded easements.