CA Unpub Decisions

Plaintiff in propria persona appeals from the order dismissing his action for failure to serve his legal malpractice complaint on his defendants. Plaintiff contends the trial court should not have dismissed the case because he had served defendants by mail 21 days earlier. However, plaintiff has failed to demonstrate reversible error because the record contains no return of acknowledgement of service and so plaintiff has not shown service was perfected. (Code Civ. Proc., § 415.30, subd. (b).) Accordingly, we affirm the order.

John Michael Knox appeals from a judgment dismissing his complaint for adverse possession and quieting title to the subject property in favor of respondent Robert Moore, as the principal of respondent Associated Investments. Knox's admitted failure to pay the property taxes defeats his claim for adverse possession, and he has no other demonstrable claim to the property. We affirm.

Defendant and appellant, Ignacio Araujo, appeals his conviction for first degree murder, premeditated attempted murder, and shooting at an inhabited dwelling, with firearm use and gang enhancement allegations (Pen. Code, §§ 187, 664/187, 246, 12022.53, 186.22, subd. (b)).[1] He has filed an accompanying petition for writ of habeas corpus. Araujo was sentenced to state prison for a term of 75 years to life plus life.
The sentence is vacated and the matter remanded to the trial court for resentencing; in all other respects the judgment is affirmed; the habeas corpus petition is denied as moot.

Goleta Mobile Home Park, LP (Park Owner), is the owner of Rancho Mobilehome Park (Park) in the City of Goleta (City). The City Council approved Park Owner's application to convert Park from rental units to resident ownership. Park's homeowners' association, Monarch Country Mobilehome Owners Association (Association), filed a petition for a writ of administrative mandate. Association sought to overturn the City Council's approval of the project.

Defendant Mark Flynn appeals from his convictions for possession of methamphetamine and unlawful possession of a firearm, based upon his no contest plea entered after the trial court denied his motion to suppress evidence. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 raising no issues. Defendant was notified of his right to file a supplemental brief and has done so, identifying four potential errors in the trial court proceedings. Upon independent review of the record, we conclude that no issues are presented that justify further argument, and shall affirm the judgment.

Government Code section 65457[1] provides an exemption from environmental review for a residential development that is consistent with a broader specific plan for which an environmental impact report previously has been certified. This appeal challenges the determination by respondents City of Dublin and the City Council of the City of Dublin (collectively, the city) that the proposed development of a 7.2-acre parcel by real party in interest AvalonBay Communities, Inc. (AvalonBay) within a larger Dublin Transit Village Center development (transit center), for which an environmental impact report was previously prepared and certified, qualifies for that exemption. We find no error in the city’s application of the exemption and therefore shall affirm the judgment denying appellants’ petition for a writ of mandate. [2]

Defendant Mary Delgado appeals from a judgment convicting her of possession and transportation of methamphetamine and placing her on probation. Defendant does not challenge her conviction, but contends that two fees imposed as conditions of probation must be vacated or, alternatively, that the matter be remanded for further proceedings regarding the imposition of these fees. The Attorney General argues that defendant should be subject to the contested fees, but concedes that discrepancies in the record require remand. In light of the unsatisfactory condition of the record, we shall remand the matter to the trial court to redetermine the fees to be imposed as conditions of probation and affirm the judgment in all other respects.

This case arose out of a sexual relationship that Ronald Polk, a vice principal at Pittsburg High School, had with his secretary, Jeannette Barnes, and the way in which Barnes’s children learned about it. Although many of the events surrounding the discovery of the relationship remain disputed, all of the parties agree that two of the children found out about it from Polk. According to the plaintiffs, they found out when Polk told them, “I’m having sex with your mother.”[1]
Jeannette Barnes, her husband Willie Barnes II, and their children sued Polk and the Pittsburg Unified School District and asserted causes of action for negligence, intentional infliction of emotional distress, and public disclosure of private facts. In granting defendants’ motion for summary adjudication, the trial court concluded that plaintiffs had failed to establish that Polk or the school district owed the husband and the children a duty of care or that there had been a public disclosure of private facts. It then entered summary judgment against the husband and the children on all claims, and granted summary adjudication against Jeannette Barnes on the public-disclosure cause of action. The husband and the children appeal, and we affirm.

Defendant Thomas C. Turner was charged with making criminal threats against two staff members while he was committed at Napa State Hospital as a mentally disordered offender (MDO). He was held in Napa and Solano county jails while these charges were pending, and he eventually pleaded no contest to them. In this appeal, he contends that the trial court was required to conduct an evidentiary hearing on the possibility that he is entitled to presentence custody credits because his status as an MDO may have changed during different periods while he was held in the county jails. We disagree and affirm the judgment of the trial court.

Defendant Louis Meyers was convicted of attempted grand theft and sentenced to five years in state prison. On appeal, he contends that the trial court denied his right to make a personal statement in mitigation at sentencing. He also contends that he is entitled to additional presentence conduct credits, based either on the law in effect when he was sentenced, or the retroactive application of the current conduct credit scheme. We agree Meyers is entitled to additional conduct credits. In all other respects, however, we affirm the judgment.

Defendant Nicholas K. Corporation (NKC), formerly Paulus Enterprises, Inc. (Paulus Enterprises) doing business as The Ford Store San Leandro (The Ford Store), appeals from a bench trial judgment, and an amended judgment awarding costs and attorney fees (the fees award), each in favor of plaintiff San Leandro Land, LLC (San Leandro Land) in this action for breach of contract.[1] The contract is a written “Side Agreement” (side agreement) for rent increases executed along with an “Agreement for Purchase and Sale of Stock” (stock purchase agreement). NKC attacks the judgment for claimed error in summary judgment granted to San Leandro Land on NKC’s amended cross-complaint for rescission, reformation and declaratory relief, and the fees award by arguing that San Leandro Land is not a prevailing party and, in any event, waived fees by failing to seek mediation before bringing suit as required by the stock purchase agreement. We ordered the appeals consolidated, and now reject all of the asserted bases for reversal.

Defendant Jeffrey Lang Ramsey was convicted by a jury of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)),[1] and making criminal threats (§ 422). He was found by the court to have committed a prior strike offense (§ 1170.12) and a prior serious felony (§ 667, subd. (a)(1)), and a prior term in prison (§ 667.5, subd. (b)). He was sentenced to a total of 11 years in prison consisting of the midterm of three years for corporal injury to a cohabitant, doubled pursuant to the three strikes law, plus five years for the prior serious felony, and other concurrent sentences. Ramsey argues that the judgment must be reversed because of evidentiary and instructional errors, that the court abused its discretion when it withdrew its approval of his no contest plea, and that one of his concurrent sentences was unauthorized.
Ramsey’s principal contention is that the court erred when it excluded defense testimony suggesting that the victim might have fabricated her accusations in order to steal Ramsey’s property. We conclude that the court acted reasonably in excluding this testimony under Evidence Code section 352. We also reject all of Ramsey’s additional arguments other than the challenge to the unauthorized concurrent sentence. We remand for correction of this part of the sentence, but otherwise affirm.

A.D. (appellant), born in August 1993, appeals the juvenile court’s jurisdictional and dispositional orders. The case involves an incident in which appellant fired a firearm at a car occupied by five other minors. Among other things, appellant contends that, because there was no substantial evidence he committed the charged offenses in concert with another gang member, there was insufficient evidence to support the juvenile court’s order sustaining a charge of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a))[1] and gang sentencing enhancements (§ 186.22, subd. (b)(1)) attached to six counts. Following the Supreme Court’s recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we conclude the evidence was insufficient to support the gang participation charge but sufficient to support the sentencing enhancements. We reject appellant’s other claims.

On February 2, 2005, a Monterey County jury convicted defendant Ricky Lucero of forcible sodomy and sodomy in a state correctional facility. (Pen. Code, § 286, subds.(c)(2) & (e).) [1] After a court trial, the court found that defendant had a prior serious felony conviction for robbery and a prior felony conviction for negligent discharge of a firearm and that both convictions qualified as strikes. (§§ 1170.12, subd. (c)(2), 211, 246.3, 667, subd. (a)(1).) The court imposed a term of 25 years to life for each conviction, stayed one of the terms, and added a five-year enhancement for the serious felony conviction.[2]
Defendant was sentenced in June 2005. No appeal was filed. However, subsequently, we granted defendant's motion for relief from default, and he filed his notice of appeal in January 2008. In that appeal, we reversed the judgment and remanded the matter for the limited purpose of conducting further proceedings on defendant's motion for new trial.
On November 1, 2011, the trial court denied defendant's motion for a new trial. Thereafter, defendant filed a timely notice of appeal. In this appeal, defendant contends that he was denied the effective assistance of counsel by counsel's failure to investigate and present expert testimony regarding exculpatory evidence as to the forcible sodomy charge. For reasons that follow, we reject defendant's claim.