CA Unpub Decisions

Petitioner stands accused in the above referenced superior court case of possessing controlled substances (heroin and methamphetamine), possessing drug paraphernalia, and unlawfully possessing a hypodermic needle. Within 60 days of her arraignment in superior court, she filed a written motion to suppress the evidence discovered during what she claims was an unlawful search of her residence. Her motion presented the following general arguments without applying them to the facts of her case: (1) the detention is unlawful for lack of reasonable suspicion; (2) illegal seizure of property; (3) fruit of the poisonous tree; (4) failure to get a search warrant; (5) illegal entry into a home; (6) Harvey/Madden; (7) demand warrant; and (8) illegal search. Accordingly, Court deny the petition.

A modification decision.

Following the denial of his motion to suppress evidence (Pen. Code, 1538.5), defendant Marcos Antonio Carrillo pleaded guilty to one count of driving with a suspended license. Thereafter, the jury found defendant guilty of selling methamphetamine and heroin and possessing them for the purpose of sale. The court sentenced defendant to three years in prison for selling heroin, and concurrent terms of three years each for selling methamphetamine, possessing methamphetamine, and possessing heroin for purposes of sale. Defendant appeals, challenging the denial of his suppression motion. Court affirm.

The trial court ordered Moe Zahabi to specifically perform his contract to sell real property to Hassan Mannaa, but the property was foreclosed upon before the order was carried out. In these further proceedings, the trial court issued a judgment ordering Zahabi to pay $89,371 to Mannaa for rents accruing during the time Zahabi was able to perform the agreement but refused to do so. Zahabi claims the trial court erred in failing to offset the rents with an amount compensating him for the loss of use of the purchase price he would have received under the agreement. Court find because the property was overencumbered, Zahabi would have received nothing under the agreement and no offset was required. Accordingly, Court affirm the judgment.

In this appeal, two real estate developers seek review of an order sustaining a demurrer to their complaint for injunctive relief and for refund of special taxes imposed by respondent, the City of San Jose (the City). Plaintiffs contend that their development contracts with the City accorded them tax exemptions that vested and were effective notwithstanding the expiration of the underlying municipal code sections defining those exemptions. Court affirm the judgment of dismissal.

This is a marital dissolution action in which the husband appeals from an order denying his fourth motion to vacate a default judgment. Court affirm.

Appellants Lou Ann Smith, Jimmy Jackson Smith, and Karen E. Gravley (collectively appellants) appeal from an order of the trial court granting a motion to dismiss based on forum non conveniens filed by respondents Robert R. Maxfield, Katherine Maxfield, the Robert R. Maxfield 1987 Separate Property Trust (the Maxfields), and Creftcon Industries doing business as Regal Manufacturing (Creftcon) (erroneously sued as Regal Fittings, Regal Manufacturing and Creftcon Industries) (collectively respondents). Court affirm the order.

A jury convicted defendant David Merardo Zamora of forcible rape ( 261, subd. (a)(2)),[1]kidnapping ( 207, subd. (a)), assault with a deadly weapon by means likely to produce great bodily injury ( 245, subd. (a)(1)), and making criminal threats ( 422). The victim in each crime was his former girlfriend, M. L. The jury also found that in committing the first three crimes, defendant inflicted great bodily injury on M. L. under circumstances involving domestic violence. ( 12022.7, subd. (e).) After the jury returned its verdicts, defendant discharged retained counsel and hired a new attorney. New counsel filed a motion for new trial, supported by declarations and exhibits, alleging that trial counsel had provided constitutionally deficient representation. The trial court denied the motion and sentenced defendant to state prison for 12 years and 8 months. The trial court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting imposition of a total of four $20 fees (for a total of $80) on defendant pursuant to section 1465.8. As so modified, the judgment is affirmed.

Appellant Gregory Leon was convicted by a jury of attempted murder (Pen. Code, 664/187, subd. (a))[1]and assault with a deadly weapon ( 245, subd. (a)(1)), with findings that he inflicted great bodily injury as to both counts ( 12022.7, subd. (a)) and used a deadly and dangerous weapon in the commission of the attempted murder ( 12022, subd. (b)(1)). The jury also found that he had suffered a prior conviction within the meaning of section 667, subdivision (a)(1), section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d). He was sentenced to 27 years in prison. He appeals, contending that the court erred by: 1) failing to give an instruction on the lesser included offense of attempted voluntary manslaughter (CALCRIM No. 603); 2) failing to give the unanimity instruction (CALCRIM No. 3500); and 3) sentencing him to the upper term on the attempted murder charge. Court affirm the judgment.

Appellant Wilson P. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 entered after the juvenile court denied his suppression motion (id., 700.1) and found true the allegation that he possessed a knife with a locking blade on school grounds (Pen. Code, 626.10, subd. (a)). Appellant contends the trial court erred in denying his suppression motion and imposed unconstitutionally vague probation requirements. Court modify the probation requirements and affirm the order.

Ebony S. appeals from an order modifying conditions of probation by adding five days of JAWS time. Previously, she had been declared a ward of the court pursuant to Welfare and Institutions Code section 602 upon her admission that she committed a second degree robbery (Pen. Code, 211). She was placed home on probation under certain terms and conditions. The order is affirmed.

Darrell C. appeals from an order continuing wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a battery (Pen. Code, 242), a misdemeanor. A previous order of home on probation was terminated, and he was placed in the camp-community placement program. The court aggregated confinement time on two prior sustained petitions for robbery with use of a weapon and an attempted burglary and set the total maximum period of confinement at seven years and six months.
The order is affirmed.

In January 2005, A. D. Moon sued Anthony and Micheline McFarland and their lawyer, John M. Williams, Jr., for damages arising out of a commercial lease dispute. In June 2006, the McFarlands and Williamss demurrers to Moons third amended complaint were sustained without leave to amend (but the record does not disclose whether a judgment of dismissal was entered). In September, Moon (who has represented himself throughout these proceedings) filed requests for the entry of the defendants defaults, which the clerk entered as to the McFarlands but not as to Williams. On February 26, 2007, the trial court granted the McFarlands motion to vacate their defaults, noting that the case had been disposed of in June 2006 when the demurrers were sustained without leave to amend, and that the McFarlands defaults had been inappropriately entered in view of the [d]emurrer being sustained. On March 26, 2007, Moon filed a notice of appeal from the appealable orders/Judgments entered on February 26, 2007. The appeal is dismissed.

Eutimio Salvador appeals from the judgment entered following a jury trial in which he was convicted of felony assault by means of force likely to produce great bodily injury and misdemeanor battery. He also admitted having suffered three prior felony convictions, one of which qualified under the Three Strikes law and two of which resulted in separate prison terms. Defendant contends that the trial court prejudicially erred in granting the prosecutors mid trial request to instruct the jury on aggravated assault as a lesser included offense of attempted robbery and that the abstract of judgment should be corrected to reflect the correct theory of aggravated assault. Court reverse the conviction of aggravated assault with directions to dismiss it and strike its associated enhancements, and affirm the conviction of misdemeanor battery.