CA Unpub Decisions

Defendant and appellant Henry Newman shot and killed his adult son in the course of an argument. He was convicted of voluntary manslaughter, and the jury found to be true an allegation that he had used a firearm. Defendant was sentenced to 21 years in prison, consisting of the upper term for both the manslaughter conviction and the firearm enhancement. In our original opinion, filed October 20, 2006, we affirmed defendants conviction and found no error in the imposition of his sentence. On July 11, 2007, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].) Court conclude that the matter should be remanded to the trial court for a further sentencing hearing. In all other respects, Court affirm the judgment.

Bruce Wayne Miller appeals from the judgment entered following his conviction by a jury of burglary in the first degree (Pen. Code, 459, 460, subd. (a)), assault with intent to commit a forcible act of sexual penetration ( 220), and threatening to commit a crime that would result in death or great bodily injury. ( 422.) The trial court found true allegations that appellant had been convicted of four prior serious felony offenses within the meaning of section 667, subdivision (a)(1), and California's "Three Strikes Law." ( 667, subds. (b)-(i), 1170.12.) Appellant was sentenced to a determinate term of 20 years for the four prior serious felony offenses within the meaning of section 667, subdivision (a)(1). In addition, appellant was sentenced to three concurrent indeterminate terms of 25 years to life to be served consecutively to the 20 year determinate term. One of the concurrent terms was stayed pursuant to section 654.
Appellant contends that the trial court erred in (1) admitting evidence of a prior 1972 sexual offense; (2) instructing the jury pursuant to CALJIC No. 2.50.01; (3) refusing to give his requested instruction on the defense of unconsciousness; and (4) instructing the jury pursuant to CALJIC No. 4.30. In addition, appellant contends that the prosecutor committed misconduct on several occasions during closing argument. Court affirm.

Appellant was convicted by jury of possession of cocaine base for sale (Count 1; Health & Saf. Code, 11351.5) and transportation of cocaine. (Count 2; Health & Saf. Code, 11352, subd. (a).) He admitted the allegations that he had suffered two prior convictions within the meaning of the Three Strikes law (Pen. Code 667, subds. (b)-(i); 1170 subds. (a)-(d)) and served seven prior prison terms. ( 667.5, subd. (b).)
The trial court imposed a sentence of 12 years in state prison, consisting of the upper term of 5 years on count 1, doubled pursuant to the Three Strikes law, plus two consecutive one year prior prison term enhancements. The trial court dismissed the remaining strike allegation, and stayed imposition of punishment in count 2 pursuant to section 654.
We conditionally reverse the judgment and remand the matter with the following directions: (1) the trial court hold a hearing to allow appellant the opportunity to request a reasonable continuance to retain private counsel or apply for the appointment of counsel upon an adequate showing of indigence; (2) if newly retained or appointed counsel determines there is a basis for a new trial motion, the court consider and decide that motion; (3) if counsel does not move for a new trial, or such a motion is denied, the court reinstate the original judgment and sentence which stand affirmed.

A modification decision.

County of Los Angeles appeals a judgment partially invalidating an ordinance that adopted a redevelopment plan for a new redevelopment project. Pursuant to instructions by this court in a prior opinion, the judgment invalidates the ordinance to the extent it would allow Community Redevelopment Agency of City of Los Angeles (1) to receive additional tax increment funds derived from property formerly within another redevelopment project area, (2) to incur additional debt repayable by tax increment funds in connection with the transferred property, and (3) to impose land use restrictions on the transferred property that would be effective beyond 35 years from the date of adoption of the prior redevelopment plan.
Court conclude further that the appellants have shown no legal basis to require the city council to reevaluate the economic feasibility in light of the changed circumstances or to prepare new reports reevaluating the redevelopment plan, and that they have shown no prejudicial error in the attorney fee award.

When ordering child support, the family court must determine the spouses' annual net disposable incomes. (Fam. Code, 4059.)[1] This figure includes annual gross income "from whatever source derived" ( 4058, subd. (a), 4059), minus certain specified deductions. One such deduction is for "mandatory union dues and retirement benefits, provided that they are required as a condition of employment." ( 4059, subd. (c).)
The dissolution judgment in this case includes a finding that retirement plan contributions made by appellant Michael Gialketsis (Michael) were not mandatory or required as a condition of employment and therefore were to be included in calculating his child support obligation.
This appeal is from an order modifying child support and denying Michael's request to reclassify his contributions to his retirement plan as "mandatory" and a "condition of employment." Court affirm.

Appellant Hersel Mikaelian purchased land in Santa Barbara County. He subdivided the land while the property was subject to the authority of the County of Santa Barbara. Before he could complete development of the property, the area was incorporated as part of the new City of Goleta (City). He complains that the City wrongfully denied his various applications for land use permits and imposed building restrictions in violation of state and federal due process and equal protection rights. He contends these actions were motivated by the personal animus of the City's mayor based, in part, on his ethnicity. Finally, he contends that as a result of the City's intentional conduct, he suffered emotional distress.
The trial court sustained the City's demurrer to the constitutional and negligent infliction of emotional distress claims in the second amended complaint without leave to amend. The demurrer to the intentional infliction of emotional distress claim was sustained with leave to amend. Court affirm.

Appellant Hersel Mikaelian purchased land in Santa Barbara County. He subdivided the land while the property was subject to the authority of the County of Santa Barbara. Before he could complete development of the property, the area was incorporated as part of the new City of Goleta (City). He complains that the City wrongfully denied his various applications for land use permits and imposed building restrictions in violation of state and federal due process and equal protection rights. He contends these actions were motivated by the personal animus of the City's mayor based, in part, on his ethnicity. Finally, he contends that as a result of the City's intentional conduct, he suffered emotional distress.
The trial court sustained the City's demurrer to the constitutional and negligent infliction of emotional distress claims in the second amended complaint without leave to amend. The demurrer to the intentional infliction of emotional distress claim was sustained with leave to amend. Court affirm.

Appellants North Border Investments, Louisiana School Employees' Retirement System, and their attorneys appeal from a Santa Barbara Superior Court order denying their motion to intervene and petition for $10 million attorney fees and expenses in a shareholder derivative action against nominal defendant Tenet Healthcare Corporation (Tenet). The trial court denied relief and approved a $51.5 million global settlement, awarding plaintiffs' counsel $5 million attorney fees and expenses. Court affirm.

A jury found defendants Tristian Bennett and Rasheena Buchanan guilty of the attempted automated teller machine robbery of William Palma in violation of Penal Code sections 664 and 211,[1]finding the attempt to have been in the first degree.[2] It also found defendants guilty of the second degree robbery of Williams sister, Daysi Palma,[3]in violation of section 211. As to both convictions, the jury found that a principal was armed with a handgun under section 12022, subdivision (a)(1). Defendant Bennett was sentenced to a four year eight month state prison term, consisting of a three year midterm for the robbery, plus one year for the firearm enhancement, and eight months for the attempted robbery (one third the midterm). Defendant Buchanan was sentenced to a six year eight month prison term, consisting of the same terms as her codefendant, except the trial court imposed the upper term of five years for the robbery. Court affirm.

Appellant Jesus Garcia was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found true the allegations that the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A) and that a principal personally used and discharged a firearm proximately causing the victim's death within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). The court sentenced appellant to 25 years to life in state prison for the murder conviction plus 25 years to life for the firearm allegation.

Appellant appeals from the judgment of conviction, contending that the trial court erred in finding that the prosecution exercised due diligence in attempting to locate a key witness, allowing the jury to hear his confession, admitting the handgun seized from underneath his bed and permitting an expert witness to testify about predicate gang crimes. He further contends that there is insufficient evidence to support his conviction. Court affirm the judgment of conviction.

Mario Gonzalez Miranda appeals a judgment following conviction of three counts of residential burglary; forcible sodomy; forcible anal and genital penetration by a foreign object; two counts of attempted forcible sodomy; forcible oral copulation; forcible rape; and two counts of criminal threats, with findings of personal use of a deadly weapon, a prior serious felony conviction, and service of a prior prison term. (Pen. Code, 459, 286, subd. (c)(2), 289, subd. (a)(1), 664 & 286, subd. (c)(2), 288a, subd. (c)(2), 261, subd. (a)(2), 422, 667.61, 12022.3, subd. (a), 12022, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) Court remand for resentencing regarding counts 6 and 7, but otherwise affirm.

Rodney C. (Rodney) appeals the order of wardship (Welf. & Inst. Code, 602) entered following the juvenile courts finding he committed a lewd act upon a child (Pen. Code, 288, subd. (a)). The juvenile court ordered Rodney C. placed at home on probation. Rodney contends: (1) there is no substantial evidence he committed a lewd act on the victim with the requisite intent of arousing, appealing to, or gratifying his or the victims lust, passions or sexual desires, and (2) since he was granted probation, the trial court erred by setting a maximum term of confinement. Court affirm the order of wardship.

A jury convicted defendant and appellant Eliseo Betancourt of three offenses: second degree commercial burglary of El Zocalo Restaurant (Pen. Code, 459);[1] (2) second degree robbery of Jarriet Fair ( 211), with a special finding that defendant used a handgun ( 12022.53, subd. (b)); and (3) unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)). Defendant was acquitted of grand theft of an automobile ( 487, subd. (d)(1)).[2]In a separate proceeding, the trial court found defendant suffered two prior prison terms alleged under section 667.5, subdivision (b), for which he served a single concurrent term. The trial court imposed a prison term of 14 years 4 months, comprised of the 3 year midterm for the robbery, a consecutive 10 year term for the firearm use enhancement, and two consecutive 8 month terms for the burglary and the Vehicle Code violation. The one year enhancement under section 667.5, subdivision (b), was stayed. That portion of the judgment staying imposition of punishment for the enhancement under section 667.5, subdivision (b) is reversed. The trial court is directed to hold a new sentencing hearing and either impose the enhancement or strike it in accordance with the dictates of section 1385. In all other respects, the judgment is affirmed.