CA Unpub Decisions

Appellant Mark Frederick Cumbess challenges his burglary and receiving stolen property convictions on the grounds of instructional error, insufficiency of the evidence regarding one burglary count, abuse of discretion in refusing to vacate a prior serious felony conviction finding, and sentence disproportionality. Court conclude the trial court did not commit prejudicial instructional error or abuse its discretion by denying appellants motion to vacate a prior serious felony conviction finding. Substantial evidence supports appellants burglary conviction. Appellant forfeited his disproportionality claim, but defense counsel did not render ineffective assistance by failing to raise the claim in the trial court.

The following facts are from the clerks transcript. Larry Glynn sued the City of Long Beach and Police Officers Ray Alexander and Sunny Shin asserting violations of Civil Code sections 51.7 and 52.1, subdivision (b). He also asserted causes of action for negligence, intentional infliction of emotional distress, and battery. Glynn alleged that on December 29, 2003, he was driving his wifes car and his preexisting back injury was exacerbated when Officers Alexander and Shin stopped him and searched him.
The City of Long Beach filed a motion in limine to exclude evidence of an internal affairs investigation on the grounds that the results of the investigation were irrelevant to any issue in the case and would prejudice the defendants. The court granted the motion to exclude testimony on internal affairs investigation . . . with the exception of the taped interview of the officers minus certain redaction to be agreed upon by counsel.
The jury found that neither officer subjected Glynn to an unreasonable search or used unreasonable force. Judgment was entered in favor of defendants. Glynn appeals from the judgment.
The judgment is affirmed.

Desiree E. Smith appeals from the judgment entered in this marital dissolution action, contending there is insufficient evidence supporting the valuation of her former husbands business and his separate property interest in that business and the trial court abused its discretion in denying her request for attorney fees. Court affirm.

Defendant appeals his conviction for second degree burglary and aggravated assault. His sole contention is that his attorney provided him ineffective assistance of counsel by failing to call an expert witness on eyewitness identification. Based on the record before us, that contention is cognizable only by a writ of habeas corpus. Accordingly, Court affirm.

Plaintiff rear-ended the vehicle of Brooke Bartholomay in the fast lane of Highway 101 at Gaviota Beach Road. Cummings, individually and in his capacity as guardian ad litemfor his three minor children, sued Granite Construction Company. Court affirm summary judgment in favor of Granite Construction Company because Granite had no duty to regulate traffic at the accident site and did not, as a matter of law, create a public nuisance there.

In this appeal, plaintiff challenges an order that set aside a default and default judgment entered against defendant A-1 Coast Rentals (defendant). The order granting such relief to defendant was based on the trial courts Code of Civil Procedure section 473 findings that defendants motion was timely and defendants failure to file a responsive pleading after being served with the summons and complaint was due to defendants excusable neglect. Court's review of the record causes us to conclude just the opposite. Additionally, Court find the record does not support defendants claims that the judgment is void because of (a) defective service, (b) a defective proof of service, and (c) a defective statement of damages; nor does the record support relief from the default and default judgment under the trial courts inherent power to grant equitable relief. Therefore, the order from which plaintiff has appealed reversed and the matter remanded with directions to reinstate plaintiffs judgment.

Thomas Garrit appeals from the trial courts denial of his motion to set aside the stipulated judgment of dissolution entered in this family law action and for an order for DNA testing of the minor child born during his marriage to Tawana Garrit. Court affirm.

The juvenile court sustained a petition alleging that appellant Ivan D. committed a robbery in violation of Penal Code section 211, a felony. The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged him to be a ward of the court, and placed him in the camp community placement program for a period not to exceed six years, which included one year from another case.
Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the court erred in admitting evidence of an in field identification and further contending that there is insufficient evidence to support the court's finding that he committed a robbery. Court affirm the juvenile court's orders.

This is one of eight appeals currently pending by the Childrens Law Center of Los Angeles (the Center or CLC), all from orders of the juvenile court disqualifying the Center from representing children in dependency proceedings because of purported conflicts of interest. (See In re Charlisse C. (2007) 149 Cal.App.4th 1554 (Charlisse); In re Jasmine S. (June 19, 2007, B194714) Cal.App.4th (Jasmine)). Court reverse the disqualification order.

A jury found defendant Ernesto Amayo to be a sexually violent predator (Welf. & Inst. Code, 6600, subd. (a)), after which he was committed to Atascadero State Hospital for a period of two years. He appeals, urging evidentiary and instructional error by the court. Court reject his arguments and affirm.

While trick-or-treating on Halloween night in 2003, defendant San Fahm Saeteurn and several friends participated in a fight with a group of youths. A friend gave defendant a knife to defend himself from a much larger member of the other group. During the altercation, defendant stabbed a youth in the chest. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Peter Realmuto, representing himself in propria persona, appeals from a judgment entered against him following a bench trial in his lawsuit against real estate broker Ross Provence and Associates (RPA) for breach of contract, professional negligence and breach of fiduciary duty. As Court explain, Court conclude that Realmuto's appeal lacks merit. Accordingly, Court affirm.

Defendant entered a negotiated guilty plea to possessing a controlled substance for sale (Health & Saf. Code, 11351.5, subd. (a)) and admitted a prior strike (Pen. Code, 667, subds. (b)-(i), 1170.12, 668) and a prior conviction of possessing a controlled substance for sale (Health & Saf. Code, 11370.2, subd. (a)).
The court denied motions to strike the prior strike and the prior conviction for possession of a controlled substance for sale and sentenced Williams to prison for nine years: double the three-year lower term for possessing a controlled substance for sale enhanced three years for the prior conviction of possessing a controlled substance for sale. The court recalled the sentence ( 1170, subd. (d)), struck the enhancement for prior conviction for possession of a controlled substance for sale ( 1385), and sentenced Williams to prison for six years: double the three year lower term for possessing a controlled substance for sale with a prior strike. Williams contends the trial court erred in refusing to strike the prior strike. The judgment is affirmed.

In this juvenile dependency case (Welf. & Inst. Code, 300 et seq.), Mark S., Sr., the father of the dependent minor children Mark S., Jr. and Ashlie S. (Father, Mark and Ashlie) has appealed from an order made by the juvenile court on October 11, 2006. That order granted the ex parte written request of the Los Angeles County Department of Children and Family Services (the Department) for permission to initiate an Interstate Compact on Placement of Children (ICPC) under the Family Code (Fam. Code, 7900 et seq.) for Mark and Ashlie. The order also vacated a section 366.26 hearing that had been set.
The appeal raises issues of appealability, standing, and whether the lack of notice for the ex parte hearing is a harmless error. Court find Father prevails on all of the issues and Court reverse the order.