CA Unpub Decisions

Appellant Chhoeuth Duong was convicted, following a jury trial, of one count of first degree murder of Gonzalo Gonzalez in violation of Penal Code[1] section 187, subdivision (a). The jury found true the allegations that appellant personally and intentionally discharged a firearm causing death within the meaning of section 12022.53, subdivisions (b), (c), and (d) and committed the murder for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The trial court sentenced appellant to 25 years to life in state prison for the murder conviction plus 25 years to life for the firearm enhancement. Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in admitting the prosecutor's late-disclosed discovery and the admission of this evidence violated his constitutional right to due process and a fair trial. Court affirm the judgment of conviction.

Plaintiff and appellant James Foley (Foley), in propria persona, appeals an order denying his motion to vacate, which motion was brought pursuant to Code of Civil Procedure section 473.[1] Foleys motion sought to set aside the trial courts earlier orders sustaining the objections of defendants and respondents Angela Ann Bernard, et al. (collectively, Bernard) to Foleys account, appointing Bernard as successor trustee of the estate and surcharging Foley. Court perceive no error in the trial courts refusal to vacate its earlier orders. Therefore, the August 12, 2008 order is affirmed.

Brian Singletary appeals from his conviction of two counts of second degree robbery. His sole contention is that the court erred in denying his motion to exclude his confession. Court find no error and affirm the judgment.

Plaintiff and appellant Suzanne Themeli (Themeli) appeals a judgment of dismissal following the sustaining without leave to amend of a demurrer interposed by defendant and respondent Ports of Call Owners Association, Inc. (the HOA) to Themelis fourth amended complaint. Themeli also appeals a postjudgment order awarding attorney fees to the HOA. Themeli, the owner of a condominium unit and a member of the HOA, contends her apartment unit, No. 305, is entitled to two assigned parking spaces in the buildings common area. Themeli filed a complaint against the HOA for declaratory relief, seeking a judicial determination with respect to the rights of the parties in this regard.

Plaintiffs, appellants and cross-defendants Richard and Laurie Lynn Stark sued a former employee and his attorney for extortion following a series of communications between the attorney and the Starks regarding a dispute about the employees summary dismissal. The employee and attorney filed special motions to strike the complaint, arguing the communications were prelitigation settlement offers and that the complaint arose from defendants exercise of constitutionally protected rights of speech or petition. The trial court agreed, and granted the motions.

A beneficiary of a trust petitioned for declaratory relief pursuant to Probate Code section 21320, subdivision (a)[1] seeking a determination whether a proposed petition seeking removal of the Trustee and an accounting was a contest within the terms of the no contest clause in the trust. The trial court found the proposed petition did not violate the no contest clause and granted the declaratory relief petition. The Trustee appeals. Section 21305 defines certain proceedings as not violating a no contest clause. The proposed petition was a pleading regarding the removal of a fiduciary and a pleading regarding an accounting of a fiduciary, which were not violations of a no contest clause. Because three subtrusts were established by an amendment to the trust, which did not contain a no contest clause, the proposed petition seeking an accounting did not violate a no contest clause. Court affirm the order granting the petition for declaratory relief.

The trial court found that defendants wall encroached upon plaintiffs easement for ingress and egress and incidental purposes and would have to be removed. The trial court also awarded plaintiffs damages. Defendant asserts on appeal that although the wall was within the legal description of the easement, it did not interfere with the easement and that the trial courts damages erroneously included an amount attributable to attorney fees. Court hold that the trial court erred by granting relief without determining that the interference with an easement was unreasonable and by assessing damages based on attorney fees.

The respondent, a judgment creditor, obtained a Writ of Execution against the appellate debtor and sought to levy upon appellants individual retirement account (IRA). Appellant asserts that the trial court should have upheld his claim of exemption, which claim he based on the assertion that the IRA contained funds rolled over from an exempt retirement account and that the funds were necessary to pay for support for retirement and for federal and state income taxes attributable to the use of funds to pay his judgment creditor. We affirm the trial courts denial of the exemption. Appellant failed to introduce evidence supporting the claimed exemptions.

A modification decision.

Plaintiff Bijan Tabaies employer, defendant Stockton Unified School District (the District), refused to allow him to continue working after he was unable to obtain a complete medical release from a work related injury and he had not requested reasonable accommodations, even though he was able to perform his normal job duties without the aid of accommodations. Plaintiff sued, claiming employment discrimination based on his disability. The jury found for the District.

A jury convicted defendant Richard Glen Williams of first degree murder, found true a lying-in-wait special circumstance, and found he personally used a deadly weapon (a nail gun). (Pen. Code, 187, 190.2, subd. (a)(15), 12022, subd. (b)(1).) The trial court sentenced defendant to prison for 26 years to life without the possibility of parole and defendant timely appealed. Defendant contends his trial attorney was incompetent because he failed to object to certain expert testimony about defendants mental state, the trial court misinstructed the jury on how to evaluate evidence of oral admissions by the defendant, and the lying in wait special circumstance is void for vagueness. Court reject each of these contentions. We shall modify an unauthorized sentence and affirm.

Father, A.G., appeals from a dispositional order removing the child, B.G., from his custody. Father contends there were reasonable means of protecting B.G., short of removing her. He also contends there was insufficient evidence that B.G. was suffering from severe emotional distress. Court shall affirm.

A modification decision.

A jury convicted defendant Troy Allen Bennett of driving under the influence (DUI) offenses that resulted in a five year sentence to state prison. On appeal, defendant asks us to order the trial court to modify its judgment to permanently stay future penal or administrative use of one count upon defendants completion of his sentence on a second count. Court decline to do so and shall affirm the judgment.