CA Unpub Decisions

Q.D. (mother) appeals from orders of the juvenile court terminating her parental rights to her children, Ke. (born in March 2003) and Ki. (born in March 2005). A.R. (father), the biological father of Ki., appeals from orders of the juvenile court terminating his parental rights to Ki. Ke.s alleged father is not a party to this appeal. Counsel for the children has filed a brief urging us to affirm the juvenile courts orders. Mother contends the juvenile court erred in denying her petition brought under Welfare and Institutions Code[2]section 388. Father joins mothers brief and further contends that if this court finds that mothers parental rights should not have been terminated as to Ki., then fathers parental rights to Ki. should also be restored. Court find no error, and Court affirm.

After petitioner Y.H. (mother) had been provided 18 months of services, the trial court found that it would be detrimental to J.H. (the minor) to return him to her care. Accordingly, it terminated services and ordered that a permanency planning hearing be held pursuant to Welfare and Institutions Code section 366.26. Mother seeks review by petition for extraordinary writ. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) Court deny the petition.

We are presented with an all too common situation in family law. A lucrative family business that supports a rather lavish lifestyle suddenly fails miserably when the parties separate and dissolve the marriage. The matter further is complicated when the spouse in control of the business, here the husband, (1) pays personal expenses of both parties out of the business, (2) funds a new life with a new partner through the business, and (3) obstructs access to accurate and current financial information. The resulting litigation is toxic. The parties are three years into the dissolution action and still they are arguing over temporary spousal support.
Appellant Bahram Shawn Shiralian (hereafter Shawn) contends the trial court abused its discretion when it fixed temporary spousal support for Julie Shiralian at $36,536 per month based upon Shawns[1]statements in a loan application that he earned $100,000 per month. Court will affirm the order.

Following a jury trial, John Domingos Vieira (appellant) was convicted in count 1 of possession of methamphetamine for sale (Health & Saf. Code, 11378),[1]in count 2 of transportation of methamphetamine ( 11379), in count 4 of maintaining an unlawful place for selling, giving away, or using a controlled substance ( 11366), and in count 5 of possession of drug paraphernalia ( 11364).[2] In a bifurcated proceeding, the trial court found true, as to both counts 1 and 2, the allegation that appellant had previously been convicted of possession of methamphetamine for sale, pursuant to section 11370.2, subdivision (c). The trial court sentenced appellant to prison for a total term of six years eight months, consisting of the middle term of three years on count 2, plus a three-year enhancement; a concurrent middle term of two years on count 1; a consecutive term of six months on count 4; and a concurrent term of eight months on count 5.
We agree with appellant that the evidence was insufficient to support appellants conviction for maintaining a place for the sale or use of a controlled substance, and we reverse appellants count 4 conviction. For this reason we need not reach appellants claims that the prosecution failed to establish the corpus delicti or that the trial court improperly instructed on that offense. Court also agree with both parties that the trial courts imposition of a concurrent term on count 1 violated Penal Code section 654 and we stay that term. In all other respects, the judgment is affirmed.

On August 26, 2005, appellant Eric Pineda pled no contest to carrying a loaded firearm (Pen. Code, 12031, subd. (a)(1)) and admitted he committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The court placed appellant on three years probation and ordered, inter alia, that appellant pay a restitution fine of $500 pursuant to section 1202.4. The court also imposed a probation revocation restitution fine ( 1202.44) in the same amount to become effective upon revocation of probation.
On appeal, appellant contends, and respondent concedes, the trial court erred in imposing the second restitution fine. Although the point has not been raised by the parties on appeal, it necessarily follows the imposition of the $550 parole revocation fine was unauthorized and the amount of that fine must be reduced to $500 to reflect the amount of the first restitution fine. Court modify the judgment accordingly.

Appellant Contour Development, Inc. ("Contour") and respondent Reynen & Bardis Communities, Inc. ("RBC") were parties to a contract for the sale of a parcel of real property. Contour was the seller and RBC the buyer. The parcel was approximately 70 acres in area and was to be sold at a price of approximately $7.7 million. A legal action filed by an entity called Porterville Citizens for Responsible Hillside Development ("Porterville Citizens") against Contour and the City of Porterville shortly before the scheduled close of escrow excused RBC, under the terms of the contract, from going through with the purchase of the property. RBC had, however, made a deposit of $50,000 and a second deposit of $450,000 (collectively, "the $500,000 deposit") to the escrow holder. These funds had been released by the escrow holder (with RBC's authorization) to Contour before RBC became aware of the Porterville Citizens' action.
This case is a contractual dispute about the $500,000 deposit made by RBC and received by Contour. RBC sought a refund of the $500,000 deposit, but Contour claimed that the terms of the contract entitled Contour to keep the $500,000. RBC sued Contour for breach of contract. The court, in a nonjury trial, ruled in favor of RBC and awarded RBC a judgment of $500,000 plus interest. Contour now appeals.

Appellant Jonathan LaMons is an inmate at Corcoran State Prison. He was convicted in 1990 of first degree murder and is serving a sentence of 26 years to life. He brought this civil action against various persons who work at the prison. His "Amended Complaint for Damages" contains allegations recounting his version of his unsuccessful attempt to be housed without a cellmate. It contains five causes of action and seeks relief in the form of compensatory and punitive damages. LaMons appealed on March 26, 2008 from the superior court's March 7, 2008 order granting summary judgment to the defendants and denying his request for a continuance of the summary judgment hearing. This order is not appealable (see Modica v. Merin (1991) 234 Cal.App.3d 1072 & Code Civ. Proc., 904.1), but the record on appeal includes a judgment of dismissal entered on April 18, 2008. Although we are not required to do so, we deem appellant's notice of appeal to be an appeal from the subsequent judgment. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.) The judgment is affirmed.

Appellant, J.B., was committed to the Department of Juvenile Justice after he admitted violating probation by leaving the facility he was committed to without permission as alleged in a December 7, 2007 notice filed pursuant to Welfare and Institutions Code section 777. He appeals, claiming the juvenile court is barred from committing him to the Department of Juvenile Justice because the section 777 notice is a petition, and his most recent offense (the probation violation) alleged in that petition does not qualify him for a commitment to the Department of Juvenile Justice because it is not an offense listed in section 733, subdivision (c). Court affirm.

Petitioner claims his Eighth Amendment rights are being violated by the physicians at Pleasant Valley State Prison because they are deliberately indifferent to his low back injury with disc herniation that presses against a nerve root and causes him daily pain. He claims to need greater medical care than is currently being provided him.
Because petitioner continues to experience daily pain, this order will be final 10 days after the filing of this opinion. (Cal. Rules of Court, rule 8.264(b)(3).)

Brokers William Kenney and Robert Peltzman entered into an exclusive listing agreement with Tanforan Park Shopping Center. When Tanforan fired Kenney and Peltzman prior to the agreements expiration, the two brokers sued Tanforan for breach of contract. The trial court found that Tanforan wrongfully terminated Kenney and Peltzman and awarded damages of about $955,000 based on the commissions Kenney and Peltzman theoretically would have earned under the contract. (They actually never earned any commissions under the contract because they themselves leased nothing on behalf of Tanforan.) The court later amended its judgment to award Kenney and Peltzman prejudgment interest under Civil Code section 3287, subdivision (b), and attorneys fees. The judgment is affirmed except for the portion of the judgment awarding Kenney and Peltzman prejudgment interest. That portion is hereby vacated. The judgment is affirmed as modified.

Defendant David Lee Brentlinger appeals from a judgment of conviction entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). The jury also found true the allegation that defendant personally inflicted great bodily injury upon the victim within the meaning of Penal Code sections 12022.7, subdivision (a) and 1203, subdivision (e)(3). In a bifurcated proceeding, the trial court found that defendant suffered two prior strike convictions (Pen. Code, 667, subd. (b) (i), 1170.12) and two prior serious felony convictions (Pen. Code, 667, subd. (a)). The trial court sentenced defendant for an indeterminate term of 25 years to life consecutive to a determinate term of 12 years in state prison. The issues on appeal involve the admissibility of evidence, jury instructions, and the competency of trial counsel. For the reasons stated below, Court affirm the judgment.

Defendant Robert C. Yen seeks appellate review of a judgment entered after the trial court granted a motion by plaintiff City of Milpitas (City) to enforce a settlement in this eminent domain proceeding. Court reject an argument that the appeal is untimely, but affirm the judgment on the merits.

Defendant Rodney Theodore Kralovetz was convicted after jury trial of two counts of forcible oral copulation (Pen. Code, 288a, subd. (c)) and one count of lewd acts on a child aged 14 or 15 ( 288, subd. (c)). The jury further found true special allegations that defendant tied or bound the victim of the oral copulation offenses. The trial court sentenced defendant to two consecutive terms of 15 years to life. ( 667.61, subd. (b) & (e)(6), 667.6, subd. (d).)
On appeal, defendant contends that (1) there is insufficient evidence of force, violence, duress, menace or fear to support the forcible oral copulation convictions; (2) the trial court erred in refusing to instruct the jury on lesser offenses of simple battery and non-forcible oral copulation; (3) the court erred in allowing the information to be amended to add the special allegations of tying and binding after plea negotiations failed; (4) there is insufficient evidence to support the special allegation of tying and binding; (5) the special allegation verdict forms were defective; (6) CALCRIM No. 1191 improperly allowed the jury to apply a preponderance of the evidence burden of proof to infer criminal propensity; and (7) the abstract of judgment should be modified to correct clerical error. We will order the abstract of judgment modified to reflect the correct dates of defendants offenses. As we find no reversible error, however, Court affirm the judgment as so modified.

Appellant Robin Belkin was injured in a rear-end automobile accident involving a vehicle driven by respondent Michelle Quinet. Belkin subsequently brought a personal injury action against Quinet that culminated in a jury trial. The jury rendered a special verdict awarding Belkin total damages of $49,080, including past medical expenses of $28,080; future medical expenses of $6,000; past noneconomic loss of $10,000; and future noneconomic loss of $5,000. The trial court denied Belkins motion for a new trial on the issue of damages. On appeal, Belkin challenges the award of $6,000 for future medical expenses on the grounds that the award was inadequate, arbitrary and unsupported by the evidence. For the reasons stated below, Court determine that the award is supported by substantial evidence and therefore Court affirm the judgment.