CA Unpub Decisions

Barry S. appeals from the trial courts order of December 20, 2005, reappointing the Shasta County Public Guardian as conservator of his person under the Lanterman-Petris-Short Act. (Welf. & Inst. Code, 5000 et seq.; further section references are to this code.) He contends the evidence does not support the finding that he was gravely disabled or the courts imposition of special disabilities. Court dismiss the appeal as moot because, even if his claim of error is correct (a question we do not address), Court are unable to provide Barry S. with effective relief because the order from which he appeals already has expired.

In 1999, a light plane carrying four skydivers crashed, killing the pilot and three of the passengers and injuring the fourth. One year later, the survivor and successors to the estates of the deceased passengers filed suit against The Estate of Lynn Maxey Wylie [sic], Deceased for negligence. The following years saw considerable, contentious litigation, marked primarily by procedural sloppiness. Finally, in late 2005, the trial court granted a motion for summary judgment by the Estate of Wiley based on plaintiffs failure to serve the insurer as required by Probate Code section 552. Plaintiffs appeal, contending any claim of defect in service, including no service, was forfeited by the Estate of Wileys many general appearances. Court disagree with that premise. Instead, Court read the service requirement of Probate Code section 552 as simply the designation of whom is to be served, necessary because an estate is not a legal entity. This service requirement is subject to the normal rules of service of process, one of which is that a general appearance is the equivalent of personal service. (Code Civ. Proc., 410.50, subd. (a).) Since the Estate of Wiley has made a general appearance, it has forfeited any objection to service as a matter of law. It was error to grant summary judgment on the basis relied upon by the trial court and court reverse.

jury convicted defendant Chester Drew Larimore of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)), displaying false license plates (Veh. Code, 4463, subd. (a)), false impersonation of another (Pen. Code, 529), two counts of possession of a forged drivers license (Pen. Code, 470b), possession of anothers identifying information (Pen. Code, 530.5, subd. (d)), possession of a completed check with intent to defraud (Pen. Code, 475, subd. (c)), two counts of possession of anothers access card information with intent to use it fraudulently (Pen. Code, 484e, subd. (d)), three counts of possessing a blank check with the intent to defraud (Pen. Code, 475, subd. (b)), forgery or counterfeiting of a public seal (Pen. Code, 472), making, uttering, or passing counterfeit paper (Pen. Code, 648), possession of a counterfeiting apparatus (Pen. Code, 480, subd. (a)), acquiring four or more access cards with the intent to defraud (Pen. Code, 484e, subd. (b)), and possession of a methamphetamine pipe (Health & Saf. Code, 11364).
Defendant admitted five serious or violent felonies within the meaning of the three strikes law. (Pen. Code, 667, subds. (b)-(i) & 1170.12.) The trial court denied defendants motion to dismiss the strikes under Penal Code section 1385 and sentenced him to 75 years to life in state prison.
On appeal, defendant contends his sentence violates the state and federal constitutional prohibitions on cruel and unusual punishment. Court reject the contention and affirm.

Court find no abuse of discretion. Although the evidence as to the Scilacciss pecuniary interest in pursuing the lawsuit was conflicting, there was substantial evidence from which the trial court could determine the costs of litigation were not out of proportion to the Scilacciss individual stake. The Scilaccis had purchased neighboring property at below market value before the lawsuit commenced and had taken actions that indicated an interest in developing that property and therefore an interest in challenging the proposed project.

Jennifer S. petitions this court for an extraordinary writ (Cal. Rules of Court, rule 8.452) setting aside the juvenile courts order pursuant to Welfare and Institutions Code section 366.22 setting a permanent plan hearing ( 366.26). She contends there is insufficient evidence to support the juvenile courts finding of substantial risk of detriment if her minor son, Joel H., were to be returned to her. Court disagree and deny the petition.

Mother appeals from orders made by the juvenile court pursuant to Welfare and Institutions Code section 300 establishing jurisdiction over mothers daughter, Y. L. Mother contends that substantial evidence does not support the courts findings and orders. Court agree that the evidence is insufficient to support the allegations that she knew or reasonably should have known of physical and sexual abuse of Y. L. by her father, G. L. (father). As such, we reverse the trial courts findings on these allegations. In all other respects, Court affirm the orders and findings.

Appellant, mother of minors G.F. and Gi.F. (minors) from juvenile courts May 17, 2006, jurisdictional findings and declaration of dependency. Court find that substantial evidence supports the jurisdiction finding of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (c). Finding no error, Court affirm the orders of the juvenile court.

Defendant appeals the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code, 211), during which he personally used a handgun ( 12022.53, subd. (b)) and inflicted great bodily injury ( 12022.7, subd. (a)), and his admission he had previously been convicted of a serious felony ( 667, subd. (b)-(i), 1170.12, subd. (a)-(d), 667, subd. (a)(1)). The trial court sentenced Carrillo to 24 years in prison. Court affirm the judgment.

Defendant Container Connection of Southern California (CCSC) appeals from the judgment entered in favor of plaintiffs Danzas AEI Intercontinental (Danzas) and Danmar Lines, Ltd. (Danmar) (collectively referred to as plaintiffs). Court reverse the judgment to the extent it is adverse to CCSC.

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. Court affirm.

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, Court vacate the sentence and remand to the trial court for resentencing.

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, Court vacate the sentence and remand to the trial court for resentencing.

On April 12, 2005, Betty Cheeks pled guilty to one count of welfare fraud (Welf. & Inst. Code, 10980) and 11 counts of issuing checks with insufficient funds (Pen. Code, 476, subd. (a)). The facts relating to these offenses are not relevant to the issue on appeal.
In Court's view, the several aggravating factors relied upon by the court to impose the upper term clearly fell within the prior conviction exception to the Apprendi rule. Further, those prior conviction aggravating factors did not in any way relate to the commission of the offense, but goes to the punishment only . . . . (Almendarez-Torrez v. United States, supra, 523 U.S. at p. 244, italics omitted.) Therefore, these factors did not need to be supported by jury findings.
Accordingly, Court conclude that imposition of the aggravated term in this case did not violate appellants federal constitutional right to a jury trial under the Sixth Amendment or his right to due process under the Fourteenth Amendment as explicated in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856.



III. DISPOSITION

The judgment and sentence are affirmed.

A jury convicted codefendants Jermaine Brooks, Anthony Brown, and Derek Brown of first degree felony murder in connection with the fatal shooting of a convenience store security guard during the course of an attempted robbery. As to Brooks and Anthony, the jury found true the special circumstance allegation that the killing occurred while they were engaged in the attempted commission of a robbery. Because the prosecution did not seek the death penalty against either defendant, they were sentenced to life in prison without the possibility of parole. The jury found the special circumstance not true as to Derek, and the court sentenced him to an indeterminate term of 26 years to life.
Defendants contend that their convictions and adverse special circumstance findings resulted from: (1) a series of evidentiary and instructional errors at trial; (2) prosecutorial misconduct in jury selection, closing argument, and pretrial discovery; and (3) ineffective assistance of counsel. Brooks and Anthony contend that their life-without-parole sentences were unauthorized by statute and constitute cruel and unusual punishment.
Finding no reversible error in the trial proceedings or illegality in the sentences imposed, Court affirm the judgments appealed from.