CA Unpub Decisions

Daniel and Mary Lou Perelmutter (defendants) appeal from a judgment granting Thomas Klinck and Peter Kratz (plaintiffs) easement rights over a portion of the Perelmutter property bordering the driveway which provides access to plaintiffs garage and house. The trial court found plaintiffs have an implied easement, a prescriptive easement, and an easement by necessity. Defendants argue the courts statement of decision is not adequate as to the last two theories. As to implied easement, defendants contend the trial court employed the wrong standard, relied upon speculative expert testimony, and lacked a legal or factual basis for its conclusion. We find no basis to reverse as to implied easement. Defendants also argue the easement awarded by the trial court amounted to a possessory interest. Court disagree. In light of our conclusion that plaintiffs proved their rights to an implied easement, Court need not and do not reach defendants arguments about the adequacy of the statement of decision and the alternative easement theories.

A modification decision.

Plaintiff and appellant Melike Dewey (Dewey), in propria persona, appeals a judgment confirming an arbitration award in favor of defendant and respondent Lawrence T. Higgins (Higgins). Dewey contends the trial court erred in confirming the arbitration award, in awarding attorney fees to Higgins, and in declaring her a vexatious litigant,

Defendant Eric Lamont Esmond appeals from a judgment of conviction entered after his motion to suppress (Pen. Code, 1538.5) was denied, and he pled no contest to having a concealed firearm and carrying a loaded, unregistered firearm. He contends his motion should have been granted. Court agree, and reverse the judgment.

On October 2, 2007, the district attorney filed in superior court a petition for involuntary treatment. It was alleged, inter alia, that appellant had previously been committed as severely mentally disordered after having been found guilty of the crime of assault with a deadly weapon and that the commitment was to expire on January 16, 2008. The appeal is dismissed.

Defendant Marietta Dabanian was found guilty of three counts of theft and one count of attempted theft in connection with the taking of more than $100,000 from an elderly woman. On appeal, defendant claims numerous errors. As we will explain, we agree with only one of her assertions -- that there was insufficient evidence to convict her of theft relating to an annuity she purchased for the victim under a power of attorney (the Employees Life annuity). Accordingly, Court reverse the judgment as to that conviction only, affirm the judgment as to the remaining convictions, and remand the case for resentencing.

Plaintiff Lorette Speer appeals from a judgment in favor of her former family law attorney Claire Lightner entered after a jury found Lightner was not negligent in her representation of Speer in connection with Speer's ex-husband's petition to modify child custody. Speer contends the jury's finding is not supported by substantial evidence. Court disagree and affirm the judgment.

Defendants and appellants Beverly Kunnen and Robert Kunnen appeal from a judgment in favor of plaintiff and respondent Frank Kunnen[1]following a bench trial in which the trial court found defendants owed Frank $12,000 plus interest, attorney fees and costs under a February 1988 promissory note providing it was payable "upon completion" of a certain property development project. On appeal, defendants challenge the trial court's factual findings and legal conclusions, particularly its finding that the statute of limitations did not bar Frank's action. They further contend the court applied the wrong standard in ruling on their motion for judgment at the close of plaintiffs' evidence and it should have denied Frank relief because he did not admit the original promissory note into evidence. Court affirm.

After a consolidated trial, a jury convicted Gerardo Brown Robles, Jr. and Samuel Raymond Gudino of home invasion robbery in concert (Pen. Code,[1] 211 & 213, subd. (a)(1)(A); count 1), carjacking ( 215, subd. (a); count 2), three counts of assault with a firearm ( 245, subd. (a)(2); counts 3, 4 & 5), and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 6). As for Robles, Court find the trial court's failure to instruct the jury on aiding and abetting was prejudicial with regard to the three counts of assault with a firearm and it erred in permitting Robles to be convicted of both unlawful driving or taking of a vehicle and receiving a stolen motor vehicle. Court therefore reverse Robles's convictions on counts 3, 4, 5 and 7. In all other respects, we affirm Robles's convictions (counts 1, 2 & 6) and remand the matter for resentencing with directions.

Timothy Michael Caban entered a negotiated guilty plea to battery with serious bodily injury (Pen. Code,[1] 243, subd. (d)) and admitted personally inflicting great bodily injury ( 12022.7, subd. (a)) and committing a hate crime ( 422.75, subd. (a)). Caban also admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)) and a prior serious felony conviction ( 667, subd. (a)(1)). The plea bargain called for a stipulated prison sentence of five years for this case plus 12 years in a companion case (Super. Court No. SCE 272707) for a total stipulated sentence of 17 years.

APPEALS from orders of the Superior Court of San Diego County, Elva R. Soper, Judge. (Retired Judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed. Jose M. (Father)[1]appeals orders declaring his minor children, Julio M. and Josie M. (the minors), dependents of the juvenile court under Welfare and Institutions Code[2]section 300, subdivisions (b) and (j), and removing them from his custody under section 361, subdivision (c)(1). Father challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. Denise M., the minors' mother, argues the court erred by not considering disposition alternatives less drastic than removal. Father joins in Denise's argument. Court affirm the orders.

Brenda R. appeals a judgment declaring her son, Brandon R., a dependent child of the juvenile court and removing him from her custody. She contends substantial evidence did not support the removal order or the court's finding there were no reasonable alternatives to removal. Court affirm the judgment.

Carl S. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny his requests to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.)

Following the discovery of a cartel-size methamphetamine laboratory in Mead Valley, defendants, Ignacio Aguillar, Alejandro Torres, Fernando Ramirez, and Ismael Garcia, were charged in the same information and tried before the same jury. All four defendants were found guilty of manufacturing methamphetamine in count 1 (Health & Saf. Code, 11379.6, subd. (a))[1]and of possessing methamphetamine for sale in count 2 (Health & Saf. Code, 11378). Aguillar, Ramirez, and Torres were also found guilty of conspiring to manufacture methamphetamine in count 3. (Pen. Code, 182, subd. (a)(1); Health & Saf. Code, 11379.6, subd. (a).) Garcia was found not guilty of the conspiracy charge in count 3, and all four defendants were acquitted of disposing of hazardous chemicals used in the manufacture of a controlled substance in count 4. (Health & Saf. Code, 11374.5, subd. (a).) Judgments are affirmed.