CA Unpub Decisions

Thomas F. appeals from a judgment entered October 25, 2005, which reestablished his conservatorship under the Lanterman Petris Short Act (LPS). He contends that his LPS conservatorship must be reversed because it was based on the stipulation of counsel authorized by San Diego Superior Court Local Rule (Local Rule) 8.2.33 which he asserts is contrary to state law governing stipulated judgments as it did not require counsel to obtain his authorization or consent.
Court therefore dismiss the appeal as moot.

In the present case (San Diego Super. Ct. no. SCD183946), a jury convicted Mark Anthony Scott of four counts of forgery (Pen. Code, S 470, subd. (d); counts 1 to 4) and two counts of grand theft (S 487, subd. (a); counts 5 and 6), arising out of two real estate transactions for which Scott was the real estate agent. Scott then waived a jury trial and admitted he had suffered a prior serious felony conviction which constituted a strike under the Three Strikes law (SS 667, subds. (b) (i), 1120.12). Three weeks later, Scott pled guilty in San Diego Superior Court case number SCD194748 for failure to appear while on bail (S 1320.5) and pled guilty in San Diego Superior Court case number SCD186986 to writing a check on nonsufficient funds (S 476a, subd.(a)). The trial court sentenced Scott to a total prison term of 10 years, consisting of seven years, four months for this case plus 16 months consecutive for each of the other two cases.
Defendant appeals only from the current case, contending he was denied his federal constitutional right to due process because the court erroneously denied his motion to sever the forgery counts from the theft counts, erroneously excluded evidence under Evidence Code section 352 relevant to his defense, and erroneously admitted inconclusive testimony of a handwriting expert based on limited review of questioned documents. Defendant claims the cumulative effect of these errors of law denied him his federal and state constitutional rights to a fair trial. Court affirm.

In this consolidated appeal, E.S. appeals judgments of the juvenile court terminating parental rights to her children S.S. and Lydia S. She also appeals orders summarily denying her petition for modification under Welfare and Institutions Code section 388 and denying her motion for a continuance of the section 366.26 hearing. Court affirm the judgments and orders.

A jury found defendant guilty of transportation of methamphetamine (Health and Saf. Code, S 11379, subd. (a)), possession of methamphetamine for sale (Health and Saf. Code, S 11378) and possession of less than one ounce of marijuana (Health and Saf. Code, S 11357, subd. (b)). In a bifurcated proceeding, the jury also found true four nonviolent prior prison term enhancements (Pen. Code, S 667.5, subd. (b)) and two "strike" priors (Pen. Code, SS 667, subds. (b) (i), 1170.12). The trial court sentenced defendant to a total of 29 years to life in prison.
Defendant contends the trial court erred by:
1. Failing to instruct on third party efforts to fabricate evidence. (E.g., CALJIC No. 2.05 [Efforts Other Than by Defendant to Fabricate Evidence].)
2. Failing to give a flight instruction. (E.g., CALJIC No. 2.52 [Flight After Crime].)
3. Failing to modify the standard instruction on a defendant's oral admissions. (CALJIC No. 2.71.)
4. Imposing a three-strikes sentence of 25 years to life, because this constituted cruel and unusual punishment.
5. Imposing multiple punishment for both possession of methamphetamine for sale and transportation of methamphetamine.
The People concede that defendant could not be punished for both possession of methamphetamine for sale and transportation of methamphetamine. Court correct this error in our disposition. Otherwise, court find no prejudicial error. Hence, court affirm.

Lumber Mutual Insurance ("LMI") sued United Air Specialists, an Ohio Corporation, and United Air Specialists, a California Corporation (collectively referred to as "UAS") in subrogation for insurance proceeds paid to Sullivan Shutter Factory ("SSF") arising out of a fire loss occurring on November 21, 2000. Seeking damages in the amount of $793,804.13, LMI claimed that a defective dust collection system supplied by UAS to SSF caused the fire. Following a jury trial, judgment was entered in favor of LMI in the amount of $793,804 with prejudgment interest of $257,721.54. UAS appeals, contending the trial court erred (1) in admitting evidence of invoices and check stubs for the alleged repair work on the system when no one testified to the work actually performed or the preparation of the invoices; and (2) in awarding prejudgment interest.

Defendant pled guilty to possessing a controlled substance (Health and Saf. Code, S 11377, subd. (a)) and carrying a concealed dirk/dagger (Pen. Code, S 12020, subd. (a)(4)). He further admitted having suffered a strike prior (Pen. Code, S 667, subds. (b)(i)) and having suffered a prior for which he served a prison sentence. (Pen. Code, S 667.5, subd. (b).) As part of his plea bargain, he waived his right to appeal. He was sentenced to the agreed to term of 5 years in prison. His request for a certificate of probable cause was denied by the trial court.

Mother appeals from the juvenile court's order reinstating the March 17, 2005, order terminating her parental rights. She asserts that the Riverside County Department of Public Social Services (DPSS) once again failed to comply with the requirements of the Indian Child Welfare Act, 25 United States Code, section 1901 et seq. (ICWA). Specifically, she argues that DPSS failed to provide the required notice to all of the tribes that Mother identified and that the notice that it sent contained incorrect and incomplete information and was therefore not meaningful.

A jury found defendant guilty as charged with two offenses: in count I with receiving a stolen vehicle, a felony (Pen. Code, S 496d), and in count II with falsely identifying himself to a peace officer, a misdemeanor (S 148.9.)
On appeal, Gunkel challenges the court's denial of his pretrial motion to suppress evidence (S 1538.5). He also maintains the evidence presented at trial was insufficient to sustain his conviction for count II. Court agree with the second claim only.

Following the denial of her motions to set aside the information and to suppress evidence (Pen. Code, SS 995, 1538.5), Carol Lee Sowers entered a plea of no contest to one count of possession of a controlled substance (methamphetamine), a felony. (Health and Saf. Code, S 11377, subd. (a).) The trial court found her eligible for drug treatment under section 1210.1, subdivision (a) (Proposition 36). It suspended imposition of sentence and placed her on probation for a period of three years.
On appeal, Sowers contends the trial court should have granted her suppression motion. Court disagree and affirm the judgment.

Charles T. appeals from an order terminating his parental rights (Welf. and Inst. Code, S 366.26) to his daughter, A.T. He contends the court erred at an earlier stage of the proceedings by not inquiring of him or ordering him to complete a form with regard to the Indian Child Welfare Act (ICWA; 25 U.S.C. S 1901 et seq.). He also argues the court should have found termination would be detrimental to A.T. based on the parent/child relationship. On review, court affirm.

This case involves rather murky business dealings of Dan W. Baer and David H. Tedder, who was an attorney. In the mid 1980s, the two formed a joint venture (the Joint Venture) in which they marketed "asset protection" and estate planning services to Tedder's high wealth clients. The Joint Venture's profits (as well as proceeds from various loans made to the Joint Venture by Baer's offshore corporation and from client accounts controlled by Tedder) were then used to acquire real estate for investment. In the mid-1990s, the partners' relationship soured, and litigation between them and former clients has been ongoing since 1996. The Joint Venture's assets, mainly the real estate, are currently being managed and controlled by Baer.
This appeal involves only one issue: whether the trial court abused its discretion by appointing a receiver pursuant to Code of Civil Procedure section 564 to manage the remaining assets of the Joint Venture while it winds down. The appellant, Baer, argues appointment of a receiver was inappropriate because his personal equity in the remaining real property assets was more than sufficient to satisfy any judgments against him for any of his alleged misdeeds in managing the assets. Court find no abuse of discretion and affirm the order.

A jury found defendant guilty of first degree murder based on evidence that he fatally shot his former employer, Augusto Hostia. On appeal, defendant contends that the trial court improperly hindered his assertion of a self-defense claim by excluding evidence of the victim's aggressiveness and by failing to properly instruct the jury on the right of one who initiates a non-deadly confrontation to defend himself against deadly counterforce. Court hold that the court erred in its exclusion of evidence that at the time of his death the victim had ingested methamphetamine, which can cause aggressive behavior. Court conclude, however, that this error was very unlikely to have affected the verdict, and therefore does not warrant reversal. Court reject defendant's other claims of error, except that, as respondent concedes, two enhancements based on prior prison commitments were not established by competent evidence. Accordingly court remand for the limited purpose of retrying those enhancements or striking them from the judgment.

In March 2000, defendant Paul Tomayo Saucedo was charged with mayhem and assault with a deadly weapon; and it was further alleged that he personally used a deadly weapon and inflicted great bodily injury, previously had suffered three strike convictions and two prior serious felony convictions, and served one prison term. (Pen. Code, SS 203, 245, subd. (a)(1), 667, subds. (a) and (b) (i), 667.5, subd. (b), 12022.7, subd. (a), 12022, subd. (b)(1).) Defendant was declared incompetent to stand trial in 2000 and again in 2001. In 2003, after a contested hearing, defendant was deemed competent. Defendant then waived a jury trial, and the court convicted him as charged and found and enhancement allegations true. The court imposed a term of 25 years to life plus an addition and consecutive term of 14 years.
On appeal from the judgment, defendant claims the procedure used to determine whether his competency had been restored denied him a fair trial. He also claims the admission of unreliable hearsay in documentary evidence of his prior convictions violated his constitutional rights to due process and confrontation.
Court affirm the judgment.

Defendant pled guilty to possession of a controlled substance (Health and Saf. Code, S 11350) in case No. SS041729A and threatening violence with the personal use of a deadly weapon (Pen. Code, SS 422, 12022, subd. (b)(1)) in case No. SS041218A, for a prison sentence of two years, four months. After the plea, defendant was found to be mentally incompetent to stand trial, and was committed to a state hospital for a four year term. On appeal, he challenges the length of the term and the order authorizing involuntary treatment with antipsychotic drugs.