CA Unpub Decisions
California Unpublished Decisions
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Plaintiff and appellant Jerry Bailey, a homeowner in a common interest development in Corona, sued his neighbors, defendants and respondents Leonard and Carmen Imelda Becerra, for an alleged violation of the development’s recorded covenants, conditions, and restrictions (“CC&R’sâ€).[1]
Specifically, plaintiff claimed that defendants violated a provision of the recorded CC&R’s entitled “Maintenance of Views.†The provision states: “In order to maintain views where they occur, no owner shall make any addition to the house structure as built by Declarant that will interfere with the view of the neighbors to the side or rear. No arbors, outbuildings or other structures shall be erected or placed so as to disturb the views of the neighbors to the side or rear. All trees, shrubs or the like shall be trimmed so as not to interfere with the view of the neighbors to the side or rear.†(Italics added.) |
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Defendant and appellant Esmaeil Farshi (Father) appeals the judgment of the family court in the dissolution action between Father and his former wife, plaintiff and respondent Sepideh Mojtahedzadeh (Mother), with respect to its child custody and visitation determinations. The court awarded Mother full custody of their two minor children, and denied Father any visitation rights. (Fam. Code, § 3040 et seq.; all further statutory references are to this code unless noted.)
Mother's brief defends the custody order and judgment, relying in part on records in the same family court file from previous litigation about Mother's request for a prejudgment order in this case, a 2011 domestic violence restraining order (DVRO). That DVRO was affirmed as modified by this court in January 2013. (Mojtahedzadeh v. Farshi (Jan. 10, 2013, D060218) [nonpub. opn.].) |
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A jury convicted Maurice David Tucker of the first degree murder of Stephen Cleveland (Pen. Code,[1] § 187, subd. (a)) and shooting at an inhabited dwelling (§ 246). It found true allegations that Tucker committed the offenses for the benefit or at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)); and also that he was a principal in the offenses, during which a principal personally used a firearm causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)). The court sentenced him to a 50-year-to-life prison term.
Tucker contends: (1) there is insufficient evidence to corroborate the testimony of an informant who implicated him in a conspiracy to commit Cleveland's murder; (2) the trial court prejudicially erred by instructing the jury with CALCRIM No. 315; and (3) his conviction for shooting at an inhabited dwelling is not supported by substantial evidence. We reject these contentions and affirm the judgment. |
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John Carey Philips appeals an order involuntarily committing him for an indeterminate term to the custody of the California Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) under the amended Sexually Violent Predators Act (SVPA) within the meaning of Welfare and Institutions Code[1] section 6600 et seq. Philips contends the order must be reversed because the SVPA violates: (1) state and federal due process guarantees by imposing an indeterminate term on SVP's and requiring them to prove they no longer qualify as SVP's; (2) equal protection under the state and federal Constitutions; and (3) ex post facto and double jeopardy state and federal constitutional prohibitions. Having considered Philips's constitutional contentions in light of People v. McKee (2010) 47 Cal.4th 1172 (McKee I) and People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), we affirm the order of commitment.
BACKGROUND We omit a discussion of the facts of the underlying convictions as well as the evidence provided at the recommitment trial because Philips does not challenge either the admissibility or the sufficiency of the evidence to support his current commitment. Rather, this appeal presents questions of law. In May 2010, the People filed an amended petition seeking to commit Philips as an SVP for an indeterminate term, alleging he was "convicted of a sexually violent offense against one or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." In October 2011, a jury found Philips qualified as an SVP and the court committed him to the DMH for an indeterminate term. |
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Appellants Redln Enterprises, Inc. and Daniel Kullberg, the president and majority shareholder of Redln (collectively Redln), appeal the successful demurrer of respondents City of San Diego (City) and William Zounes, a development project manager of the City (Zounes), to Redln's second amended complaint (SAC). Redln contends the court erred when it found the SAC did not state facts sufficient to support claims for inverse condemnation or takings (first cause of action) and for violation of civil rights pursuant to title 42 United States Code section 1983 (section 1983) for regulatory taking (second cause of action).[1] Redln also contends the court abused its discretion by not granting Redln leave to amend the SAC to state a new cause of action for selective enforcement. Affirmed.
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Mehran Amirkhani Khamseh appeals his conviction by plea to felony driving under the influence causing injury (Veh. Code, § 23153. subd. (a)) and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). Appellant admitted causing great bodily injury to two minor children (Pen. Code, § 12022.7 subd. (d))[1], that he caused injury to the minors' mother, that he had a prior strike conviction (§§§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and that he had suffered a prior prison conviction (§ 667.5, subd. (b)). The plea was based on the probation report which indicates that appellant struck a mother and two young children in a crosswalk while driving a tow truck under the influence of methamphetamine. The mother was knocked to the ground and injured. The two children were trapped face down under the truck bumper and dragged a quarter mile. On June 22, 2012, the trial court sentenced appellant to 11 years four months state prison and awarded 479 days actual credit and 239 days conduct credit (§§ 2900.5; 4019.) Appellant was ordered to pay a $480 restitution fine (§ 1202.4, subd. (b)), a $480 parole revocation fine (§ 1202.45), victim restitution (§ 1202.4, subd. (f)), a $70 court security fee (§ 1465.8,) and an $80 criminal conviction assessment (Gov. Code, § 70373). |
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Jose Machuca Aceves appeals from a judgment after conviction by jury of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (§ 11378).[1] The jury acquitted him of unlawfully taking a vehicle. (Veh. Code, § 10851, subd. (a).) The trial court found he had suffered five prior felony convictions related to controlled substances and four prior prison commitments. (§ 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b).) The court sentenced him to 23 years in jail. Aceves contends the trial court erred when it admitted evidence of his prior controlled substance convictions because he would stipulate that he knew the narcotic nature of methamphetamine. He would not stipulate that he knew methamphetamine was present. We affirm. |
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Attorney Joseph Trenk appeals from the denial of his motion for relief or reconsideration. (Code Civ. Proc., §§ 473, 1008.)[1] Trenk was ordered to pay $12,000 in attorney fees to plaintiff’s counsel after admittedly neglecting his duty to defend his clients and allowing a default judgment to be entered against them. On appeal, he argues that (1) he had no notice of the hearing at which the court vacated the default judgment based on Trenk’s “attorney affidavit of fault,†and (2) the fee awarded is excessive. We find no abuse of discretion and affirm.
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In September 2000, Bellflower Business Partners, L.P. (BBP), a California limited partnership, leased commercial property (the Premises) in the City of Bellflower to defendant and appellant Urethane Products Corporation (UPC). Plaintiff and respondent Charles Lyons III (Lyons) executed the lease (Lease) on BBP’s behalf as President and General Partner. In 2005, appellant Elizabeth Thermos (Thermos) executed a guaranty of UPC’s Lease obligations. After UPC vacated the Premises in January 2009, Lyons filed a complaint against UPC and Thermos for breach of contract, breach of written guaranty, equitable indemnity and waste. Judgment was entered against UPC and Thermos (collectively referred to as appellants) and they appeal.
We affirm. |
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Defendant and appellant, Gerardo Preciado, appeals his conviction for attempted murder and assault with a firearm, with firearm and great bodily injury enhancements (Pen. Code, §§ 664/187, 245, 12022.5, 12022.53, 12022.7).[1] He was sentenced to state prison for 32 years to life.
The judgment is affirmed. |
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Adan Lazcano appeals from the judgment upon his conviction of murder in the first degree and of Penal Code section 12022.53 firearm discharge allegations.[1] Appellant asserts that his judgment should be reversed because the lower court erred: (1) in admitting evidence of alleged prior uncharged criminal conduct; (2) in failing to instruct the jury on the lesser included offense of heat of passion manslaughter; and (3) during sentencing to orally pronounce that the parole revocation fine was suspended. Appellant also claims that his trial counsel was ineffective for failing to request a pinpoint instruction with CALCRIM No. 522 on provocation. As we shall explain, only appellant’s contention about his sentence has merit. Nonetheless, remand is unnecessary because the abstract of judgment reflects the proper suspension of the fine. Accordingly, we affirm.
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Donnie Kay Sneed appeals from the judgment entered following his conviction after a jury trial of failing to register as a sex offender. Sneed elected to represent himself throughout the proceedings. He contends the trial court committed reversible error by failing to readvise him of his right to counsel. We affirm.
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Enrique Sandoval Martinez appeals from the judgment following his conviction by jury of making false financial statements (Pen. Code, § 532a, subd. (1));[1] grand theft (§ 487, subd. (a)); money laundering (§ 186.10, subd. (a)); and three counts of offering a false instrument for recording (§ 115, subd. (a)). The jury also found true allegations of aggravated white collar crime, excess taking, and excessive transaction values. (§§ 186.11, subd. (a)(3)), 12022.6, subd. (a)(2), 186.10, subd. (c)(1)(C).) The trial court sentenced appellant to 15 years in prison.[2] Appellant contends that there is not sufficient evidence to support his theft conviction and the accompanying excess taking enhancement; and the trial court erred by admitting evidence that he used different names in his two immigration applications, and by instructing the jury with a "false theory of guilt" for making false financial statements. He further contends that the court violated section 654 by failing to stay the execution of his sentences for two counts of offering false documents for recording. We affirm.
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Plaintiff Leo Washington, who has represented himself throughout this case, appeals from a summary judgment entered in favor of defendants Contra Costa County Housing Authority (Housing Authority) and Ingrid S. Layne (collectively, “defendantsâ€). (Code Civ. Proc., § 437c.)[1] Washington contends the judgment must be reversed because defendants’ separate statement of undisputed material facts was procedurally defective in several respects; the court considered evidence that was not properly before it; the summary judgment motion was not served in a timely fashion; and the summary judgment motion was based in part on Washington’s testimony at his deposition, at which he claims he was under the influence of psychiatric medication. Washington also argues that the court should have allowed him to amend his complaint to include additional facts and causes of action on behalf of his girlfriend, Sonja Colbert, and that the court should not have unilaterally amended the judgment to include defendant Layne in the award of costs. We reject these claims.
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