CA Unpub Decisions

Defendant appeal from the judgments entered following their convictions by a jury on one count of second degree murder with special findings by the jury concerning use of a firearm during the murder. Except for correction of a technical error in the abstract of judgment, Court affirm.

Appellants contend that the fifth amendment to the partnership agreement of St. George, a California Limited Partnership, is invalid. The amendment requires the posting of an undertaking in the event that any partner initiates an action against the partnership, unless a court finds that the partners claims have probable validity. Appellants contend that: (1) the amendment was not validly adopted; (2) the amendment is unconscionable; (3) the amendment violates the United States Constitution; and (4) the amendment is unenforceable as contrary to public policy. Appellants further contend that even if the amendment were enforceable, the trial court erred in determining that appellants claims lacked probable validity.

A jury convicted Jaime Martinez of attempted murder (Pen. Code, 187, subd. (a), 664; all further undesignated section references are to the Penal Code) and possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury also found that he personally and intentionally discharged a firearm causing great bodily injury. ( 12022.53, subds. (a)(1), (d).) Martinez admitted having served a prior prison term. ( 667.5, subd. (b).) The trial court sentenced him to a total term of 40 years and 4 months to life.
Martinez appeals, contending that the trial court erred by denying his requested instruction on defense of another and by failing to instruct, sua sponte, on attempted voluntary manslaughter based both on unreasonable defense of another and on sudden quarrel or heat of passion. Court find no error and affirm.

Appellant appeals from a judgment rendered in an action in which he challenged the revocation of his teaching credentials by the Commission on Teacher Credentialing (Commission). The trial court sustained a demurrer in the Commission's favor, except for a racial discrimination claim, because Horton failed to exhaust administrative remedies. Thereafter, the court granted summary judgment in the Commission's favor on the racial discrimination claim. Court conclude the trial court's rulings were correct, and affirm the judgment.

A jury convicted James Evins of three counts of possessing a controlled substance (Health & Saf. Code, 11377, subd. (a)), one count of being under the influence of a controlled substance (Health & Saf. Code, 11350, subd. (a)), and one count of petty theft (Pen. Code, 484). Evins admitted two prior strikes (Pen. Code, 667, subds. (b)-(i), 1170.12, 668) and committing a felony while released on bail in two counts
(Pen. Code, 12022.1, subd. (b)). The court struck one prior strike and sentenced him to prison for eight years: concurrent terms of double the three-year upper term on the convictions of possessing a controlled substance enhanced by a two-year term for committing a crime while released on bail or his own recognizance. The court indicated it would impose concurrent terms on the being under the influence and petty theft convictions but the record does not reflect it sentenced Evins on these two convictions. Appointed appellate counsel initially filed a brief setting forth the evidence in the superior court and presenting no argument for reversal but requesting this court to review the record for error as mandated by People v. Wende(1979) 25 Cal.3d 436. We granted Evins permission to file a brief on his own behalf. He did not respond. Court then requested additional briefing on the issue of whether the trial court erred in imposing a sentence of double the upper term. Appointed counsel argues imposition of an upper term sentence violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 864, 127 S.Ct. 856, 860]. Court affirm.

Defendant appeals from a judgment convicting him of multiple counts of aggravated sexual assault on a child and lewd act offenses. He contends the trial court erred in (1) admitting uncharged sexual offense evidence, and (2) excluding portions of a defense expert's testimony. Court reject his arguments and affirm the judgment.

Leslie P. appeals the judgment terminating her parental rights over Amanda P. She contends the adoptability finding is unsupported by substantial evidence, the juvenile court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code, 366.26, subd. (c)(1)(A)), and the court and the San Diego County Health and Human Services Agency (the Agency) failed to comply with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court agree with the last contention.

A jury found defendant guilty of first degree murder. (Pen. Code, 187, subd. (a).) The jury also found true the enhancement allegations that he personally and intentionally discharged a firearm causing death ( 12022.53, subd. (d) & 1192.7, subd. (c)(8)) and personally used a firearm in the commission of the murder ( 12022.5, subd. (a) & 1192.7, subd. (c)(8)). The court imposed a total indeterminate term of 50 years to life in state prison.
On appeal, defendant argues that: (1) the trial court failed to instruct the jury on accomplice testimony; and (2) the court was required to strike the section 12022.5, subdivision (a), enhancement. Court disagree and affirm.

Defendant was charged with the first degree murders of Sue and Jim Moller (Pen. Code, 187, subd. (a); counts 1 & 2), with special circumstances of multiple murder ( 190.2, subd. (a)(3)), murder in the commission of a burglary (id., subd. (a)(17)(G)), murder in the commission of a robbery (id., subd. (a)(17)(A)), and murder of a witness (id., subd. (a)(10)). Defendant was also charged with one count of first degree residential burglary ( 459; count 3) and two counts of first degree robbery ( 211, counts 4 & 5). In each count, it was alleged that a principal was armed with a firearm. ( 12022, subd. (a).)
The robbery charges and robbery special circumstance allegation were dismissed following the close of the Peoples case based on insufficient evidence. ( 1118.1.) A jury found defendant guilty as charged of the first degree murders and burglary in counts 1, 2, and 3, respectively, and found the multiple-murder special circumstance, burglary murder special circumstance, and armed allegations true.[2] The murder of a witness allegations were found not true. Defendant was sentenced to life without parole (LWOP) plus one year,[3]and appeals.
Defendant was prosecuted as an aider and abettor to each of the charged crimes. The evidence showed that on the evening of Friday, September 20, 2002, defendants cousin, Ernestina Bernal, shot and killed the Mollers in their home, then stole a Sues purse, Jims wallet, and travelers checks from the home. Defendant testified he accompanied Bernal to the scene of the crimes, but he maintained he had no knowledge that Bernal intended to commit murder, robbery, or burglary, and no intention of aiding, facilitating, or encouraging the commission of the crimes. The principal issue at trial was whether defendant aided and abetted the charged crimes.
The burglary felony murder and burglary special circumstance findings are hereby stricken. The judgment is amended to strike the parole revocation fine.

Defendant appeals from judgments entered following two trials resulting in (1) a jury conviction for grand theft (Pen. Code, 487, subd. (a)),[1]with court findings that defendant suffered three prior serious and/or violent felony convictions and two prior prison terms ( 667, subds. (c) & (e), 667.5, subd. (b), 1170.12, subd. (c)) and (2) a court trial conviction for possession of a dirk, dagger, or sharp instrument by a prisoner ( 4502, subd. (a)), with admissions defendant suffered four prior serious and/or violent convictions ( 667, subds. (c) & (e), 1170.12, subd. (c)).
The court sentenced defendant to six years in prison for possession of a sharp instrument (shank), and to a consecutive prison term of 25 years to life for the grand theft conviction. Defendant contends that in the shank case the trial court deprived him of his due process right to a fair trial because the People failed to preserve the shank, and the trial court erred in denying his motion to suppress his statements made to jail deputies without being advised of his Miranda (Miranda v Arizona (1966) 384 U.S. 436) rights. Defendant also argues the trial court lacked jurisdiction to hear both cases because there was substantial evidence defendant suffered from a developmental disability.
Court affirm the judgment.

On March 2, 2000, Jeanie Olson (Wife) filed for dissolution of her marriage to Stephen Olson (Husband). The trial court bifurcated the proceedings to resolve separately the issue of date of separation, and on January 22, 2001, the court found the date of separation to be January 31, 1994. An interim judgment was filed on April 10, 2002, dissolving the parties marriage as of January 22, 2001, setting the date of separation at January 31, 1994, and reserving jurisdiction over other matters.
Wife filed notice of appeal on February 9, 2006. Wife contends the trial court erred in setting the date of separation, in awarding repayment to Husband by Wife for monies paid on Wifes behalf for purchase and use of an automobile, and in failing to award reimbursement to the community for the fair rental value of the family home during Husbands exclusive postseparation occupancy. For the following reasons, Court affirm in part and reverse in part, and remand to the trial court for a determination on the issue of reimbursement to the community for the fair rental value of the home.

This is a juvenile criminal proceeding under Welfare and Institutions Code section 602. Following an adjudication hearing in Los Angeles County, minor, Amir B., was found to have committed a misdemeanor violation of Penal Code section 243, subdivision (e)(1). That subdivision proscribes battery on a person with whom the defendant has a dating relationship.
The case was then transferred to Riverside County. A dispositional hearing was held on May 22, 2006. Minor was committed to juvenile hall for 20 days with credit for time served. He was released to his parents with probation terms and conditions.
Minor appeals, arguing that the evidence was insufficient to support the juvenile courts true finding. He also contends that two probation conditions must be modified. The People find the evidence sufficient, but agree to the proposed modification of the probation terms.
The judgment is modified by changing the probation terms to add the word illegally before the word possess in each of the two probation conditions described above. As so modified, the judgment is affirmed.

A jury convicted defendant Jose Montiel of forcible rape, a violation of Penal Code section 261, subdivision (a)(2), and assault by means of force likely to produce great bodily injury, a violation of section 245, subdivision (a)(1). The jury also found that defendant personally inflicted great bodily injury on the victim.
Defendant appeals, contending that his rape conviction must be reversed because there was insufficient evidence of penetration. He also asks that the abstract of judgment be corrected.

Father appeals from the trial courts denial of his petition to terminate the guardianship of his two children, S.D. and D.D. (the children). The childrens guardian is their maternal grandmother. Fathers primary contentions are that the evidence presented at trial showed that he had overcome his gambling and substance abuse problems, which previously made him an unfit parent, and that he had preferential right to custody of the children. Court affirm.