CA Unpub Decisions

Defendant and appellant Chaim Rubin appeals from an order confirming a conveyance of real property to the Rubin Family Trust dated May 7, 1990 (1990 Trust). Chaim contends: (1) the order is precluded by a prior judgment, which determined that the property is not in the trust; and (2) the order violated his rights to due process by quieting title to property in a summary proceeding. We conclude the earlier probate judgment did not determine whether the property was conveyed by deed in 1990 to the 1990 Trust. Plaintiffs and respondents Jacob Rubin and Deena Zyskind, as co-trustees of the 1990 Trust, were not required to raise the trust’s ownership claim in the earlier proceeding. We also find no violation of Chaim’s due process rights, because he may dispute the 1990 Trust’s claim at trial, including issues about the validity of the 1990 Trust. The order is affirmed.

The jury found defendant and appellant Sergio Herrera guilty of first degree residential burglary. (Pen. Code § 459.) He was sentenced to two years in prison. Defendant contends that the evidence was insufficient to support the jury’s finding that he entered the residence with the specific intent to commit burglary. We affirm the judgment.

Appellant Alfredo Moreno drove into the rear of a stopped car and fled the scene while intoxicated. One passenger in the other car was killed and several others suffered serious injuries. On November 20, 2014, Moreno was convicted of second degree murder, gross vehicular manslaughter, gross vehicular manslaughter while intoxicated, driving under the influence (DUI) causing bodily injury, driving with a blood-alcohol level of 0.08 percent or higher resulting in bodily injury, hit and run with injury and various enhancements. Moreno was sentenced to an aggregate term of eight years plus 15 years to life in state prison.

Shon Montreere Butler was convicted of attempted criminal threat and misdemeanor simple assault. He challenges his conviction for attempted criminal threat on the basis of instructional error by the trial court. Specifically, he contends the trial court failed to instruct the jury on an element of the offense of attempted criminal threat and the error was prejudicial. We agree with Butler and reverse his conviction for attempted criminal threat. We will remand the matter for retrial and/or resentencing. Butler also challenges sentence enhancements that were imposed in connection with his conviction for attempted criminal threat. However, in light of our reversal of the underlying conviction, we need not address these claims.

Defendant Esteban Rocha pleaded no contest to one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and the trial court sentenced him to the upper term of eight years. The court also ordered defendant to submit to an HIV test pursuant to section 1202.1, subdivision (a). On appeal, defendant contends, and the People concede, there was insufficient evidence to impose HIV testing. We agree that the order requiring defendant to submit to HIV testing is not supported by the evidence and remand for further proceedings at the election of the prosecution.

On April 10, 2014, the Kern County District Attorney filed an information charging appellant with one count of battery upon a correctional officer (§ 4501.5) and alleging numerous enhancements for prior prison terms (§ 667.5, subd. (b)) and prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On April 17, 2014, appellant entered a plea of not guilty to count 1 and denied the priors.
On September 30, 2016, appellant withdrew his plea of not guilty and entered a plea of no contest as to count 1 and admitted all prior prison terms and all prior strike convictions. The plea agreement provided the enhancements for prior prison terms and prior strike convictions would be stricken, and appellant would be sentenced to an upper term of four years at a 50 percent credit earning status.

A jury convicted Timothy Lee Thornburg of second degree robbery with personal use of a firearm (Pen. Code §§ 211, 212.5, subd. (c), 12022.53, subd. (b)) and second degree commercial burglary (§§ 459, 460, subd. (b)). The court imposed a prison term of 12 years, consisting of concurrent two-year terms for robbery and burglary, plus a consecutive 10-year term for personal use of a firearm.
Thornburg contends the court erred when it denied his motions to suppress evidence under section 1538.5, because there was no probable cause to arrest him for violating either a San Clemente Municipal Code regulating skateboarding, or section 148, subdivision (a)(1) barring resisting, obstructing or delaying a peace officer. We disagree.

Defendant Armando Joel Zepeda was convicted by jury trial of first degree burglary (Pen. Code, § 459) and misdemeanor theft (§ 484), and the jury found true a special allegation that a nonaccomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). Defendant was granted probation. On appeal, he challenges (1) the sufficiency of the evidence to support the jury’s true finding on the special allegation, (2) the trial court’s failure to instruct on the special allegation, and (3) his trial counsel’s failure to request instructions on the special allegation. We conclude that substantial evidence supports the special allegation and that the absence of jury instructions on it was immaterial because it was not required to be proved to the jury but to the trial court. However, we find that defendant was not awarded any conduct credit despite his entitlement thereto. Accordingly, we will modify the court’s order to award defendant cond

American Silicon Valley Vista Technology LLC (ASVVT) appeals from a judgment dismissing its second amended complaint as to respondents Sipi Metals Corporation (Sipi) and Marion Cameron (Cameron), which the trial court entered after granting respondents’ motion to quash for lack of personal jurisdiction. (Code Civ. Proc., § 418.10.) ASVVT contends it presented evidence that respondents had contacts with California sufficient for the exercise of general and specific jurisdiction. We will affirm the judgment.

This appeal arises from on-going litigation concerning the custody of the parties’ daughter. After a trial in 2013, previous orders for joint legal custody with sole physical custody in appellant were altered to give sole legal and physical custody to respondent. We reversed, finding the trial court had improperly precluded appellant from challenging the conclusion of an investigation into allegations that respondent had sexually abused the child, and had failed to make the finding of changed circumstances required to modify a permanent custody order. (I.S. v. D.R. (Jan. 29, 2015, A0140153) 2015 WL 476046.) In 2015, proceedings on remand resulted in orders maintaining sole legal and physical custody in respondent and dramatically reducing appellant’s visitation; these orders are the subject of another appeal pending before this court. (I.S. v. D.R., A147873). Among other motions filed after the court issued its Statement of Decision, appellant sought an order disqualifying th

Appellant Rene Courts appeals from the judgment and sentence following his plea of no contest to a charge of burglary of an automobile. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was informed of his right to file a supplemental brief, which he has not done. As the appeal is based solely on grounds occurring after entry of the plea, and does not challenge the validity of the plea, it is authorized by California Rules of Court, rule 8.304(b)(4)(B).

Defendant and appellant Cameron Alex Cole (defendant) appeals from his murder conviction. He contends that the trial court abused its discretion in excluding evidence of the victim’s drug use, and it gave incorrect murder and manslaughter jury instructions. He also contends that the cumulative effect of such errors was so prejudicial as to deny him a fair trial. In addition defendant contends, and respondent agrees, that substantial evidence did not support the restitution order. Though we find no merit to defendant’s claims of evidentiary and instructional error, and thus find no prejudicial cumulative effect, we agree that substantial evidence did not support the restitution order. The restitution order is thus reversed and remanded for a new restitution hearing. We otherwise affirm the judgment.

Defendant and appellant Erick Julian Ortega (defendant) appeals from his convictions of murder and possession of a firearm by a felon, both found to be gang related. He contends: that the trial court’s denial of a continuance infringed upon his constitutional rights to counsel, self-representation, and due process; that the trial court failed to conduct a sufficient Marsden inquiry ; that the gang enhancement must be stricken because there was insufficient proof of the primary activities of defendant’s gang; that hearsay evidence was erroneously admitted to prove a pattern of criminal gang activity; that the sentence for count 2 should have been stayed; and the sentence per Penal Code section 667, subdivision (a) associated with count 2 was in error. Finding no merit to any of defendant’s contentions, we affirm the judgment.

Appellant Joseph Leroy Dixon was charged with murder and associated enhancements for the shooting death of Shannon Case. On April 15, 2014, appellant was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and special allegations of premeditation and deliberations and personal use of a firearm were found true. A separate court trial was held and a prior serious felony allegation was found true. Appellant was sentenced to an aggregate term of 75 years to life in state prison.
Appellant presents a single claim on appeal. He asserts that he was denied his right to a unanimous jury verdict as the trial court failed to instruct the jury to start deliberations over after a juror was discharged and an alternate juror was seated. Upon review, we affirm.