CA Unpub Decisions

In December 2007, the San Diego City Council approved the Tourism Marketing District (TMD), which established a 2 percent tax on existing hotel rooms. Revenues collected from the tax are to be used to fund tourism marketing programs within the TMD. Affordable Housing Coalition of San Diego County and Citizens for Responsible Equitable Environmental Development (collectively, Coalition) filed a petition for writ of mandate, alleging that the City of San Diego (City) failed to comply with the California Environmental Quality Act (CEQA) when it approved the TMD. The trial court rejected the Coalition's argument and denied the petition. Court affirm the judgment.

A petition was filed in the juvenile court accusing Carlos F. (minor) of malicious damage and destruction of personal property in violation of Penal Code section 594, subdivision (a)(b)(1). Following an adjudication hearing the court found the allegations in the petition to be true beyond a reasonable doubt. The minor was placed on probation. The minor filed a timely notice of appeal.

Defendant Jason Cruz appeals from his judgment of conviction for second degree murder (Pen. Code,[1] 187, subd. (a) (count 1)); assault on a child resulting in death ( 273ab, subds. (a) and (b) (count 2)); child abuse ( 273a, subd.(a) (count 5)); and injury to a child ( 273d, subd. (a) (count 7)).[2] The charges stemmed from an incident that occurred on October 20, 2004, while Cruz was babysitting his girlfriend's three children. After being left alone with Cruz for a few hours, the girlfriend's 10-month-old daughter was rushed to the hospital with severe head trauma. She died 11 days later, on October 31, 2004.

Joann D. and Jeremy S. (together the parents) appeal a juvenile court order terminating parental rights to their minor son, A.S., under Welfare and Institutions Code section 366.26. The parents challenge the sufficiency of the evidence to support the court's finding the sibling relationship exception to adoption did not apply to preclude terminating their parental rights. Court affirm the order.

M.G. appeals the judgment terminating her parental rights as to her son, Angel A. She contends that the juvenile court erred by summarily denying her Welfare and Institutions Code[1] section 388 petition and by declining to apply the beneficial relationship exception to termination ( 366.26, subd. (c)(1)(B)(i).) Court affirm the judgment.

Joseph Ogunrinu,[1]a real estate broker, sued to recover a commission from the sale of vacant real property in Fontana. The trial court granted the summary judgment motions brought by the buyer, Jacobs, and the seller, Wiener. On appeal, the primary issue concerns whether the statute of frauds bars Ogunrinus claim for a brokers commission, which was based on an oral agreement. In the absence of disputed material facts, Court affirm the judgment in favor of defendants.

A.R. (hereafter mother) appeals from the trial courts order in proceedings under both Welfare and Institutions Code sections 300 and 602[1]limiting her right to make educational decisions for her son, M.W. (hereafter M). Mother raises two claims of error in this appeal. First, she contends the trial court abused its discretion when it limited her right to make educational decisions for M. Next, mother contends that she was entitled to appointed counsel at the hearing at which the trial court limited her rights to make educational decisions, and failure to appoint counsel to represent her in that proceeding was prejudicial. Court agree with this second claim and will reverse on that basis.

This case involves appeals in a marital dissolution proceeding from two postjudgment orders. One order grants the application of Marc LeBlanc to reduce his agreed-upon monthly child support obligation because he had sold his dental practices and his monthly income had been reduced to half of what it had been when he and April LeBlanc entered into a marital settlement agreement pursuant to which he had agreed to pay more support than required under the state child support guidelines. The other order grants Aprils[1]motion to recover the profit Marc made on the sale of his dental practices because Marc did not disclose the transactions, or their affect on his monthly income, even though Marc entered into both transactions before the final marital settlement agreement was signed and the judgment was entered. Marc appeals from the latter order and also challenges the trial courts related order awarding attorneys fees to April in connection with her motion. April appeals from the order modifying Marcs monthly child support payments. Court conclude, for reasons we explain below, that the trial court correctly granted Aprils motion, but the attorneys fees award is not supported by substantial evidence. We further conclude that in reducing Marcs monthly child support obligation the trial court incorrectly considered Marcs reduced income.

Defendant Wardine Kimm Cannon is a registered sex offender. In 2005, he moved twice, but he failed to reregister either time. Accordingly, he was found guilty on two counts of failing to register as a sex offender. (Former Pen. Code, 290, subd. (a); see now Pen. Code, 290, subds. (b) & (c), effective Jan. 1, 2007.) Three strike prior allegations were found true. (Pen. Code, 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to two concurrent terms of 25 years to life in prison.

A jury convicted defendant, Sebren Pierce, of nine counts of committing lewd and lascivious acts on a minor (Pen. Code, 288, subd. (a))[1], during seven of which he engaged in substantial sexual conduct with the victim ( 1203.066, subd. (a)(8)). The jury further found that defendant had committed sexual penetration of a minor against more than one victim ( 1203.066, subd. (a)(7)). In bifurcated proceedings, the trial court found that defendant had been convicted of two prior rapes ( 667.61, subds. (a) & (d)) and a prior rape ( 667.71) in connection with nine of the convictions.[2] Also in bifurcated proceedings, the trial court found that defendant had committed eight strike priors ( 667, subds. (b)-(i)) and eight serious felony priors ( 667, subd. (a)(1)). He was sentenced to 50 years plus ten 75-years-to-life terms and appeals, claiming his Marsden[3]motion and his motion for a continuance were erroneously denied and he was improperly sentenced. We reject his first two contentions and agree with the third. Therefore, we remand the matter for resentencing as to some of the counts, with directions to amend a minute order that is incorrect, and otherwise affirm. Defendant also submitted a Petition for Writ of Habeas Corpus (Case No. E049371, filed October 5, 2009), which Court ordered considered with this appeal. Court will resolve that petition by separate order.

Ruben Mendoza and his family (the Mendozas) sued Jurupa Community Services District (JCSD);[1]JCSDs employee, Elias Rivero (Rivero); and various other parties, for negligence, trespass, nuisance, and emotional distress. The trial court granted JCSDs and Riveros demurrer without leave for the Mendozas to amend their third amended complaint (the complaint). The Mendozas contend that the trial court erred by granting the demurrer because the trial court incorrectly concluded that JCSD and Rivero are immune from liability pursuant to principles of government tort liability. Court affirm in part and reverse in part.

Defendant Ruben Chapa was convicted of six counts of battery upon Jane Doe 1 (Doe 1), a lesser included offense of committing a lewd act upon a child, between January 1, 2005 and September 30, 2005. (Pen. Code, 242,[1]288, subd. (a);[2]counts 1-6.) Defendant was also convicted of five counts of committing a lewd act upon a child, Doe 1, between October 4, 2003 and December 31, 2004 ( 288(a); counts 7-11), and two counts of committing a lewd act upon a child, Jane Doe 2 (Doe 2), between September 1, 2001 and September 1, 2002 ( 288(a); counts 12 & 13). The jury also found true the multiple-victim special-circumstance enhancements as to each count. ( 667.61, subd. (e)(5).) The trial court sentenced defendant to an indeterminate 15-year-to-life sentence on count 7, the principal term. The court imposed concurrent indeterminate 15-year-to-life sentences on counts 8 through 13. On counts 1 through 6, defendant was sentenced to concurrent jail terms of 180 days for each count. Defendant contends the trial court prejudicially erred in not giving a specific acts unanimity instruction on counts 7 through 11. In addition, defendant argues his sentence under section 667.61, mandating one strike treatment, violated the ex post facto clause. Defendant also claims his sentence under section 667.61, mandating an indeterminate term for each section 288(a) conviction with a multiple-victim special circumstance, violated the ex post facto clause. Court conclude the trial courts failure to give sua sponte a specific acts unanimity instruction on counts 7 through 11 constituted harmless error. In addition, the record does not show any ex post facto sentencing violations. The judgment is affirmed.

A jury convicted defendant Jonathan Dewitt McDowell of two criminal offenses committed on November 7, 2007: one count of selling cocaine base with the intent to promote a criminal street gang (Health & Saf. Code, 11352, subd. (a); 186.22, subd. (b)); and one count of active participation in a criminal street gang. ( 186.22, subd. (a).) The court sentenced defendant to a total prison term of six years eight months.
On appeal, defendant challenges his conviction on count 1 for the omission of a unanimity instruction. On count 2, he protests the courts failure to define expressly the meaning of the phrase felonious criminal conduct as used in CALCRIM No. 1400. Defendant also contends defendants eight-month sentence for the street gang conviction on count 2 should be stayed under section 654. We accept the latter contention and order defendants sentence modified. Otherwise, Court affirm the judgment.

Defendant and appellant Anthony Dwayne Chambers appeals his jury conviction for second degree murder. (Pen. Code, 187, subd. (a).) He claims there was insufficient evidence to support the jurys true findings on the gun enhancements. ( 12022.53, subds. (c) & (d).) He also contends the trial court abused its discretion by denying his motion to strike a prior conviction.