CA Unpub Decisions

Although charged with four serious felonies that included attempted murder,[1] appellant was convicted of a sole count of possession of ammunition in violation of Penal Code section 12316, subdivision (b)(1).[2] The jury also found true the allegation that this offense was committed for the benefit of a criminal gang with the intent to promote and assist criminal conduct by gang members (hereafter referred to as the gang enhancement). The trial court found as an additional enhancement that appellant was on bail when he committed the offense of which he was found guilty (bail enhancement). Appellant admitted that he was convicted of grand theft in 1996.Appellant contends that there is insufficient evidence that he possessed ammunition and to support the jurys finding on the gang enhancement. He also contends that the trial court did not obtain a valid waiver of appellants rights to a trial on the prior felony conviction and that he did not receive the correct number of presentence credits. We agree with appellant that there is no evidence to support the jurys finding on the gang enhancement but disagree with the balance of his contentions, save the matter of presentence credit. Court affirm the judgment and remand with directions to correct the abstract of judgment to reflect our decision on the gang enhancement and with further directions to recalculate the presentence credit.

Phillip C., appeals from a juvenile court order terminating jurisdiction pursuant to Welfare and Institutions Code[1]section 364 as to his daughter, J. C. The order: granted sole legal and physical custody to the mother; denied the father additional reunification services; and barred the father from visiting the child. Court affirm.

Raymond Thompson entered a negotiated plea of no contest to attempted murder and admitted that he personally used a firearm and that the crime was committed for the benefit of a criminal street gang. The plea was based on an incident that occurred on November 11, 2006, when defendant, who was affiliated with a gang, shot a man in the hand and in the abdomen. Defendant was sentenced to 18 years in state prison, comprised of the low term of 5 years for attempted murder, 3 years for firearm use and 10 years for the gang enhancement.
Defendant appealed and we appointed counsel to represent him. Counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441442, in which no issues were raised. This court then notified defendant that he could personally submit any contentions or issues that he wished us to consider.
In response to our invitation, defendant has submitted a supplemental brief in which he argues that his trial counsel rendered constitutionally ineffective assistance. Court disagree.

John Rodriguez (Rodriguez) appeals from the judgment entered following his plea of no contest to three counts of grand theft (Pen. Code, 487, subd. (a)). The trial court granted Rodriguez five years probation with numerous terms and conditions. Court affirm the judgment.

Based upon evidence obtained during the service of search warrants for two residences used by defendant Jeffrey Allen Pate, a jury convicted him of possession of cocaine for sale and receiving stolen property. As to the drug offense, the jury found that defendant was personally armed with a firearm. Following these verdicts, the jury then found that defendant had two prior convictions which constituted strikes.
Sentenced to state prison for a term of 29 years to life, defendant appeals contending (1) the trial court erred in instructing the jury that personally armed means having a firearm available for use, (2) the evidence is insufficient to support the finding he was personally armed, (3) the trial court prejudicially erred by failing to give a unanimity instruction regarding the charge of receiving stolen property, and (4) the court abused its discretion in denying his Romero motion. Court reject each contention.

Plaintiffs Evelyn Wade and her husband Kendall Wade (the Wades) filed suit against their granddaughter Gail Stark and her husband Gregory Stark (the Starks), alleging fraud, breach of fiduciary duty and elder abuse in connection with a transfer from the Wades to the Starks of real property located in Lincoln for a price less than market value. At a 2005 settlement conference, the parties reached a settlement and executed a written settlement agreement. When Wade repudiated the agreement, the Starks filed a statutory motion to enforce the settlement. The court, finding that Wades repudiation was arbitrary, granted the motion and ordered enforcement. Court now affirm the order and judgment.

A jury found defendant John Krestan Stokke not guilty of attempted murder, but guilty of attempted voluntary manslaughter. The jury also found defendant guilty of assault with a deadly weapon and of discharging a firearm with gross negligence. As to the attempted manslaughter and assault convictions, the jury found true special allegations defendant had personally inflicted great bodily injury and had personally used a firearm. As to the manslaughter conviction, the jury also found defendant had personally and intentionally discharged a firearm, which proximately caused great bodily injury.
On appeal, defendant claims (1) trial court error in refusing his requested special jury instruction regarding evidence of the victims assaultive, aggressive or violent acts and (2) ineffective assistance of counsel in defense counsels failure to object to the trial courts giving of CALJIC No. 2.62. Rejecting these claims, Corut affirm the judgment.

In this action for injunctive relief and damages, plaintiffs seek to stop defendant Cresleigh Homes Corporation from building two-story houses on lots that abut the backyards of plaintiffs one-story houses. Plaintiffs assert that the construction of two-story houses on those lots violates a specific plan that governs development in the area (the Buttes Vista Neighborhood Plan or the plan). Plaintiffs also assert that the construction constitutes a private nuisance and an actionable invasion of privacy. The trial court granted plaintiffs application for a preliminary injunction to halt construction pending trial, and the case is now before us on appeal from that order.
In determining whether the trial court abused its discretion in issuing a preliminary injunction, Court must consider the likelihood that plaintiffs will succeed on the merits. On consideration of that issue, we conclude that: (1) Cresleighs construction of two-story houses on the lots at issue here would not violate the Buttes Vista Neighborhood Plan; (2) because Cresleighs construction is authorized by permit, is consistent with the plan, and has not been shown (or even alleged) to violate any other law, that construction cannot be deemed a nuisance; and (3) the lawful construction of a two story house does not constitute an actionable invasion of privacy simply because the house overlooks the backyard of one or more adjacent one story houses. In light of these conclusions, we conclude that plaintiffs have demonstrated no possibility of success on the merits, and therefore the trial court abused its discretion in issuing a preliminary injunction. Accordingly, Court reverse the order granting that injunction.

A modification decision.

This case arises in the context of a child custody dispute between Jaffe and his former girlfriend, Catherine DiPizzo. Stieber is a physician who treated DiPizzo for alcohol abuse and became her boyfriend. The orders are affirmed.

In this probate case the trial court properly granted the trustees' motion seeking a determination that their proposed motion to enforce the provisions of a no contest clause was itself not a contest within the meaning of the clause. Although the trustees' proposed motion would be made in their capacities as trustees, the proposed motion would subject them to a claim they contested the terms of the trust and thereby forfeited their rights as beneficiaries of the trust. Thus the trustees had the right to seek protection under the safe harbor provisions of Probate Code section 21320. Moreover, their attempt to enforce the no contest clause, although it would deprive one of the beneficiaries of the trust of any part of the trust, was not a contest of the provisions of the trust. Order affirmed.

Michael Bowers appeals after the court denied his motion to vacate a renewal of judgment order. (Code Civ. Proc., 473, subd. (d); 683.110.). Court affirm.

Karen W. appeals an order removing her children, 16 year old Tyler E., eight year old Janel W., and two year old Titus W., from her custody under Welfare and Institutions Code section 387. She also appeals a restraining order against her. She contends that there was insufficient evidence to support a finding that removal from her custody was required, and there was insufficient evidence to support a finding that she had threatened to cause physical harm to the social worker. Court affirm the orders.

Lisa B. appeals a judgment terminating her parental rights to Chloe on the basis of abandonment. (Fam. Code, 7822.) Lisa contends substantial evidence does not support the juvenile court's finding of abandonment and the court did not give full faith and credit to a Tennessee court's custody order. Court affirm.