CA Unpub Decisions

A jury convicted Hossein Navaei of preparing a fraudulent document to obtain workers compensation benefits and attempting to commit perjury. The court stayed imposition of sentence and placed Navaei on five years of formal probation on certain conditions, including that he serve 120 days in county jail. On appeal Navaei contends several conditions of his probation as reflected in the courts minute order are unconstitutionally vague and overbroad, do not relate to the offenses for which he was convicted and do not conform to the courts oral pronouncements. Court modify the conditions of probation to comport with the courts oral pronouncements at sentencing and to include expressly a knowledge requirement contained implicitly in the conditions, and, as modified, affirm the judgment.

Travis and Kelly Thomson sued Joan Beuchel (individually and as Trustee of the Joan Beuchel Revocable Living Trust), the owner of hillside property adjacent to the Thomsons property, after a mudslide severely damaged the Thomsons home.[1] In a previous appeal we reversed the trial courts entry of summary judgment in favor of Beuchel on the ground Beuchel owed a duty to adjacent landowners to reasonably maintain her property and whether she had breached that duty raised a triable question of fact incapable of resolution on a motion for summary judgment. (Thomson v. Beuchel (July 31, 2007, B194775) [nonpub. opn.] (Thomson I).) The case proceeded to trial, and a jury entered a verdict in favor of Beuchel. The Thomsons appeal from the judgment on several grounds, including the trial courts refusal to give several special jury instructions requested by the Thomsons, certain evidentiary rulings made by the court and the award of expert witness fees to Beuchel pursuant to Code of Civil Procedure 998. Court affirm.

Appellants Gregg A. Berge (Berge) and Eagle Nest Capital, LLC (Eagle Nest) appeal the trial court's ruling sustaining demurrers without leave to amend and dismissing their action against respondents Cambria Community Services District (CCSD), the County of San Luis Obispo (County) and the California Coastal Commission (Coastal Commission). Berge has been declared a vexatious litigant. (Code Civ. Proc., 391, subd. (b)(2).) The instant action is the fifth in eight years that Berge has brought against CCSD, the County and the Coastal Commission for inverse condemnation. In this matter, Berge included Eagle Nest as a plaintiff and added a cause of action for breach of contract. Respondents filed demurrers, which the trial court sustained without leave to amend and dismissed the action. Court affirm on the grounds that appellants' action is barred by the doctrines of res judicata and collateral estoppel.

Defendant Charles Brown appeals his conviction of one count of second degree murder (Pen. Code, 187, subd. (a)), with a true finding that a principal was armed (Pen. Code, 12022, subd. (a)(1))[1]. He contends the trial court erred in failing to instruct on aiding and abetting and his counsel was ineffective for failing to object to hearsay evidence. Court affirm.

Defendant Steven Michael Russell appeals from the judgment entered after a jury convicted him of petty theft, as a lesser included offense of robbery, and commercial burglary. He contends the trial court abused its discretion by denying his motion for law enforcement personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess motion).) Court agree and remand for the limited purpose of reconsideration of the discovery motion.

Gabriel Hurtado appeals from the judgment following his conviction of 10 counts of second degree robbery. Finding no arguable issues on appeal, Hurtados appointed counsel filed a Wende brief and requested that Court independently review the record on appeal for any arguable issues. Having done so and finding none, Court affirm the judgment.

Defendant Jose Arguez Perez appeals from the judgment entered following his conviction by jury of selling cocaine base and possessing cocaine base for purposes of sale. (Health and Saf. Code, 11352, subd. (a), 11351.5.) He contends the trial court erred by failing to instruct the jury on the theory of aiding and abetting and by denying his Pitchess motion without conducting an in camera hearing. Court conditionally reverse the judgment in part and remand the matter to the trial court with directions.

The minor Lou D., then 13 years old, attacked Kimberly R. and took her cellular telephone. Following a jurisdiction hearing, the juvenile court sustained the petition filed pursuant to Welfare and Institutions Code section 602, alleging he had committed second degree robbery (Pen. Code, 211) and assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). At the disposition hearing, the minor was declared a ward of the court and ordered home on probation. The only issue on appeal is whether the juvenile court erred in failing to declare on the record whether the aggravated assault was a misdemeanor or a felony. When, as here, a minor is found to have committed an offense that would in the case of an adult be punishable either as a felony or a misdemeanor, Welfare and Institutions Code section 702 requires the juvenile court to declare the offense to be a misdemeanor or felony. In the case of In re Manzy W. (1997) 14 Cal.4th 1199, 1207, the Supreme Court explained the requirement that the juvenile court declare whether a so-called wobbler offense was a misdemeanor or felony . . . serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. An express declaration is necessary; the juvenile courts failure to comply with this mandate requires a remand unless the record shows the juvenile court was aware of its discretion to determine the offense to be a felony or a misdemeanor. (Id. at pp. 1210-1211.)
The People concede, and we agree, the juvenile court did not comply with Welfare and Institutions Code section 702 and In re Manzy W., supra, 14 Cal.4th 1199. Although the court made no such oral pronouncement, the minute order reflects that both the robbery and aggravated assault were declared to be felonies. However, this factor alone does not satisfy the requirements of Welfare and Institutions Code section 702 (In re Ricky H. (1981) 30 Cal.3d 176, 191; In re Eduardo D.(2000) 81 Cal.App.4th 545, 549), and the record as a whole fails to establish the court was aware of its authority to treat the aggravated assault as a misdemeanor. Remand is required for the court to make an explicit finding whether the aggravated assault is a felony or misdemeanor.

Rudy Moreno, by petition for writ of mandamus, sought to compel the Los Angeles Police Department to comply with state law requiring notification to the United States Department of Homeland Security of the arrest of non-citizens. Petitioner failed to present any evidence of non-compliance with the statutory mandate, and the trial court denied his petition. Court affirm.

Tania L. (mother) appeals orders terminating dependency jurisdiction and granting sole physical custody of two of her children, John and Gia, to their respective fathers and granting mother weekend overnight visitation with John and weekend day visits with Gia. Mother contends the order granting physical custody of John and Gia to their respective fathers was error. Alternatively, mother asserts there was no basis for any restriction on mothers visitation with Gia. Court reject these contentions and affirm the juvenile courts orders.

Robert R., the father of three-year-old H.R., appeals from the juvenile courts order denying his petition pursuant to Welfare and Institutions Code section 388[1]to modify the courts previous orders limiting him to monitored visitation with his daughter and requiring him to participate in a drug treatment program. Robert R. also appeals from the courts order pursuant to section 362.4 terminating dependency jurisdiction and awarding sole physical custody of H.R. to her mother, E.F., to the extent that order also restricts Robert R. to monitored visits. Court dismiss as moot the appeal from the order denying the section 388 petition and affirm the restriction on visitation included in the order terminating dependency jurisdiction.

The mother appeals from orders that (1) denied her Welfare and Institutions Code section 388 petition to change a previous order terminating her reunification services and (2) terminated parental rights to her baby son, A.C., who was then 14 months old.[1] She contends the juvenile court used the wrong legal standard to evaluate her section 388 petition and abused its discretion under the correct legal standard. She also contends she established the continuing beneficial relationship exception to termination of parental rights. Finding no merit in the mothers contentions, Court affirm the orders.

D. W., a 15-year-old minor, appeals from an order of wardship (Welf. & Inst. Code, 602; undesignated section references are to that code) entered after the juvenile court found appellant had committed misdemeanor receiving stolen property (Pen. Code, 496). Appellant contends that the courts specification of a maximum term of confinement pursuant to section 736 was erroneous and unwarranted, because appellant was not ordered removed from the physical custody of his parent. Appellant requests that the specification of maximum term be stricken. Respondent agrees that the provision was legally inappropriate, but urges that in view of its lack of legal effect, it need not be stricken. Court shall strike the offending specification and affirm the order of wardship as so modified.

Petitioner Leticia M. (mother) seeks review of orders of the juvenile court terminating family reunification services and setting a permanency planning hearing (Welf. & Inst. Code, 366.26) for February 18, 2010, as to three of mothers children, Jacob, Joseph and David. We summarily deny her petition for failure to comply with California Rules of Court, rule 8.452 (rule 8.452).