CA Unpub Decisions

The probate court granted Alysse Minkoffs petition, filed pursuant to Probate Code section 21320,[1]seeking a declaration her proposed petition alleging breaches of fiduciary duty by her aunt Hillari Koppelman, trustee of the Koppelman Community Property Trust (CP Trust), would not violate the CP Trusts no contest clause. On appeal Koppelman contends the probate court erred in concluding the proposed petition would not violate the no contest clause and improperly denied an evidentiary hearing to consider extrinsic evidence relevant to Minkoffs petition. Court affirm.

Defendant Eric Lee Levi appeals from a judgment of conviction entered after a jury found him guilty of second degree robbery (Pen. Code, 211). The trial court found true the allegations that defendant suffered a prior serious felony conviction (id., 667, subds. (a), (b)-(i), 1170.12) and served a prior prison term (id., 667.5, subd. (a)(1)). It sentenced defendant to state prison for a term of 16 years.
On appeal defendant contends: (1) He was repeatedly denied access to the jail library, which undercut his ability to represent himself; (2) The prosecutor committed misconduct by failing to disclose evidence and engaging in improper argument; (3) The trial court erroneously prevented him from impeaching a key prosecution witness; and (4) The trial court erroneously prevented him from calling a witness for the defense and permitted a hostile courtroom atmosphere. Court affirm.

Following a jury trial, appellant Shareef Sheard was convicted of attempted murder (count 1), assault with a firearm (count 2), and possession of a firearm by a felon (count 3) with enhancements for firearms discharge and personal infliction of great bodily injury. He was sentenced to over 34 years in prison. On appeal, he contends: (1) His Sixth Amendment rights were violated by imposition of the upper term on count 1 and consecutive sentences on counts 1 and 3. (2) The trial court should have stricken certain enhancements that it did not mention at the sentencing hearing. (3) The abstract of judgment and minute order of the sentencing hearing do not correctly reflect the actual sentence.
Court reject the Sixth Amendment issue, order the staying or striking of the enhancements that were not mentioned at the sentencing hearing, and order the corrections to the sentencing minute order and abstract of judgment.

Following a hearing before the Board of Rights, Rocky Sherwood (Sherwood) was removed from his position as a police officer for the City of Los Angeles (City). The Board of Rights made its recommendation based upon its findings that [b]etween January 26, 2002 and May 29, 2002, you, while on injured on duty status engaged in activities that were inconsistent with your medical claim of being temporarily disabled. Sherwood filed a petition for writ of administrative mandate to contest the termination. The trial court granted the petition and issued a writ ordering the City to reinstate Sherwood to his former position as a sworn police officer. The City seeks to have the writ of mandate reversed. Court disagree and affirm.

Defendant Cruz Cedillo appeals from a judgment of conviction entered after a jury found him guilty of four counts of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)) and found true allegations of personal weapon use (id., 12022.5, subd. (a)) on all counts and great bodily injury (id., 12022.7, subd. (a)) on two counts. The trial court sentenced defendant to 24 years in state prison. On appeal, defendant claims evidentiary error, ineffective assistance of counsel, and insufficient evidence to support his conviction. Court affirm

Pursuant to a no contest plea, appellant Curtis Andrew Brewer was convicted of two counts of second degree robbery, one count of felon in possession of a firearm, and additional charges relating to firearms use, firearms discharge, and a prior robbery conviction. The evidence at the preliminary hearing showed that he committed the armed robberies on two different days, fired a gun during one of the crimes, and had a loaded gun in his car. He was sentenced to a total of 31 years in prison. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. He was notified that he could file his own brief, and did so. He contends that his sentence was improperly computed.
The trial court is ordered to correct the abstract of judgment to reflect imposition of a total sentence of 31 years, based on the computation in the oral pronouncement of judgment. In all other respects, the judgment is affirmed.

Defendants Ramiro Ruvalcaba (Ramiro) and Jorge Ruvalcaba (Jorge) appeal from judgments of conviction following the denial of motions to withdraw their no contest pleas. Ramiro and Jorge, along with codefendants Ricardo Nunez and Salvador Perez, were charged with numerous crimes. Ramiro and Jorge were each charged with 66 offenses, including conspiracy, arson, criminal street gang conspiracy, first and second degree burglary, theft related offenses and drug offenses. Each was charged with street gang enhancements. The judgments are affirmed.

Michael Geliebter appeals from the judgment entered after the trial court granted summary judgment in favor of his neighbors, Roger Donenfeld and Jamie Donenfeld, and the previous owner and developer of Geliebters property, Tracy Price, in this action for trespass, nuisance and slander of title. Court affirm.

Oscar Munoz, Jr., appeals from the judgment entered following a jury trial in which he was convicted of second degree murder with the use of a knife. He contends that the jury was improperly instructed on voluntary manslaughter and that the trial court prejudicially erred by instructing under CALJIC No. 2.62. Court affirm.

The order appealed from is entitled: "ORDER RE FIRST AND FINAL ACCOUNT AND REPORT OF WILMINGT9N TRUST AND PETITION FOR ITS SETTLEMENT, FOR DELIVERY OF ASSETS TO SUCCESSOR TRUSTEE AND DISCHARGE OF WILMINGTON TRUST, FSB AS PART OF TRANSITION OF TRUSTEES OF NON-COURT SUPERVISED TRUSTS" (hereafter the order). Appellants contend that the trial court erred in its interpretation of a provision in the declaration of trust (declaration) concerning the allocation of trust expenses. Court conclude that, insofar as the order pertains to the allocation of trust expenses, it must be reversed because the trial court erroneously excluded relevant extrinsic evidence on the circumstances surrounding the execution of the declaration.

A modification decision.

Appellant Eric Lee Carlsen (Carlsen) appeals from his conviction of possession of methamphetamine. He argues that the court erred in denying his motion to suppress, that his Fifth Amendment rights were violated by the prosecutors closing argument, and that the portion of his sentence regarding serving 75 days in county jail was error. Court agree that Carlsens sentence in this regard was error, but affirm the judgment in all other respects.

After a jury trial, appellant Jerry Thomas Taylor, Jr. was found guilty of driving a vehicle while under the influence of drugs or alcohol causing injury (Veh. Code, 23153, subd. (a)); possession of a controlled substance, methamphetamine (Health & Saf. Code, 11377, subd. (a)); and the misdemeanor offense of being under the influence of a controlled substance, methamphetamine (Health & Saf. Code, 11550, subd. (a)). The jury also found that appellant personally inflicted great bodily injury upon one of his passengers (Pen. Code, 12022.7, subd. (a)). On appeal, appellant argues that the prosecutor failed to rebut the prima facie showing that racial bias motivated the use of his peremptory challenges to excuse three minority jurors. He also claims the prosecutor committed prejudicial misconduct in closing argument. Court reject both of these contentions and affirm.

This appeal by the losing defendant in a trial for personal injuries caused by asbestos presents a single issue, namely, does a trial court commit reversible error under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford) when it declines the defendants request that the jury be required to determine in a special verdict whether the plaintiffs injuries are in fact caused by asbestos before the jury determines that the defendant is liable for those injuries? We hold that Rutherford imposes no such requirement, and thus the trial court did not abuse its discretion in denying the defendants request. Moreover, numerous other express determinations that the jury did make establish that the point of the rejected interrogatory was necessarily considered by the jury, leaving no doubt that the substance of the rejected interrogatory was deliberately, decisively, and repeatedly rejected by the jury. Court affirm the judgment for the plaintiff.