CA Unpub Decisions

In the early morning hours of August 6, 2003, someone shot Kenneth Tannahill and Leah May Warren in their home, killing Tannahill. Viewed in the light most favorable to the judgment, the evidence here showed that defendant Daniel Justin Lucas was the culprit.
A jury found defendant guilty of first degree murder and attempted murder and found various sentencing enhancement allegations to be true. The trial court sentenced him to an aggregate prison term of nine years consecutive to an indeterminate term of 75 years to life.
On appeal, defendant contends the trial court erred in denying a motion for a continuance and in excluding evidence that someone else was responsible for the crimes, and that he received ineffective assistance of counsel when his attorney elicited some of his testimony in a narrative fashion. Finding no trial court error and no ineffective assistance of counsel, Court affirm the judgment.

Plaintiff brought this action to partition real property to which he and his sister, defendant Maria Silva, held title as joint tenants. The defendant appeals from the final judgment. She contends that the court either erroneously disregarded a judicial admission in the complaint that she had a one half interest in the property or impermissibly reopened this issue after the entry of the interlocutory judgment (Code Civ. Proc., 872.720) and used incorrect methodology to evaluate the extent of her interest in the property. Court affirm as modified.

Mandisa R., mother of the minors, appeals from orders of the juvenile court selecting guardianship as a permanent plan. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the court erred in delegating control of visitation to the guardian and reasserts issues previously raised in her petition for extraordinary writ which challenged the order setting the section 366.26 hearing. Court affirm.

A modification decision.

In exchange for a max[imum] exposure [of] 9 years and a promise by the People to dismiss the other charges and not allege a prison prior, defendant Richard Douglas Craft pled no contest to possessing ephedrine or pseudoephedrine for the purpose of manufacturing methamphetamine and admitted a prior felony conviction enhancement for manufacturing methamphetamine. The court sentenced him to the upper term of six years for the current drug conviction and a consecutive three years for the enhancement. The court also ordered him to pay a $175 laboratory analysis fine [p]ursuant to Health and Safety Code [section] 11372.5. Defendant did not seek, nor was he granted, a certificate of probable cause.
On appeal, defendant contends the court: (1) erred in imposing the upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]; and (2) erred in failing to set forth all the fines and fees in the abstract of judgment and in calculating and recording the penalty assessments and surcharges associated with the criminal laboratory analysis fee. Court disagree with his first contention but agree with his second.

James K. (appellant), the father of C.K. (the minor), appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; undesignated section references are to the Welfare and Institutions Code.) Appellant contends the failure by the juvenile court to apply the statutory exception to termination of parental rights based on his relationship to the minor ( 366.26, subd. (c)(1)(A)) requires reversal of the order terminating his parental rights. Disagreeing with that claim, Court affirm.

Petitioner, Robert H., natural father of the minor, Nicole H., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying petitioner reunification services and setting a Welfare and Institutions Code section 366.26 hearing (undesignated section references are to the Welfare and Institutions Code). In support of his petition, petitioner makes several claims of alleged error in the proceedings. Court deny the petition.

After Court affirmed in part and reversed in part the trial court's judgments and remanded the matters for resentencing, the California Supreme Court granted review and reversed our judgment in People v. Calhoun (2007) 40 Cal.4th 398. Calhoun remanded the matters to us with instructions to reinstate the true findings on the Vehicle Code section 20001, subdivision (c) allegations against Calhoun and the two 6 year terms imposed on Waller. (Calhoun, at p. 408.)
Because Calhoun addressed and disposed of all the appellate issues originally raised by the parties, there are no remaining issues for us to address. Court hereby incorporate herein the California Supreme Court's opinion in Calhoun without restating it in full.

Appellants appeal from an order issuing an injunction against harassment under Code of Civil Procedure section 527.6 in favor of respondent Danny Hance, which in part prohibits the Smiths from "photograph[ing] or videotap[ing] Hance's home, driveway, garage, yard or vehicles." The Smiths contend: (1) section 527.6 does not apply to their actions in photographing Hance's vehicles and surrounding areas because their photograph taking is communicative and thus constitutionally protected; (2) the restraining order is not a reasonable time, place and manner restriction; (3) their photograph-taking activities are protected by the Civil Code section 47 litigation privilege as preparatory to constitutionally protected petition activity; (4) there is insufficient evidence of a "course of conduct" as to Steven Smith because there is no evidence he acted in concert with Gregory Smith; and (5) the trial court erred in denying Gregory's Smith's request to strike Hance's petition under Code of Civil Procedure section 425.16, commonly known as the "anti-SLAPP" (strategic lawsuit against public participation) statute. Court reject these contentions and affirm the order.

Defendant appeals from his conviction and sentence for assault with a deadly weapon. Lewandowski, who was angry because his car had been towed from the parking lot at Scripps Clinic, entered the facility and charged toward the receptionist's desk. During the course of this outburst, Lewandowski threw or "swept" a ceramic flowerpot in the direction of the receptionist who was sitting behind the counter on which the ceramic pot was located. A jury convicted Lewandowski of assault with a deadly weapon, the deadly weapon being the flowerpot.
Defendant contends that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault. He further maintains that there was insufficient evidence to support his conviction on the charge of assault with a deadly weapon. In the alternative, Lewandowski contends that the trial court abused its discretion in denying his motion to modify the verdict to a conviction on a lesser included offense, pursuant to Penal Code section 1181, circumstance .Court conclude that under the circumstances of this case, the trial court should have instructed the jury on the lesser included offense of simple assault, a misdemeanor. Court further conclude that the court's error prejudiced Lewandowski. The judgment must therefore be reversed and the matter remanded for retrial.

Defendant appeals a judgment following her nolo contendere plea to charges of conspiracy to commit a crime (Pen. Code, 182, subd. (a)) and possession of illegal substances in a jail facility ( 4573.6). On appeal, she contends the trial court erred by denying her motion to traverse the affidavit in support of the search warrant, quash the warrant, and suppress evidence. She argues: (1) the affidavit in support of the search warrant contained a material misstatement of fact made knowingly or in reckless disregard for the truth; (2) the triggering event of the anticipatory search warrant did not occur and therefore probable cause did not exist on the date of its execution; (3) the affidavit did not establish probable cause because it did not show a connection between her or her husband to the criminal activity of other persons; and (4) the good faith exception to the probable cause requirement does not apply.

Arvind and Radha Trivedi (the Trivedis) appeal from a judgment of the trial court, which quieted title in a dispute over the proper boundary line between the Trivedis' real property and real property owned by Dennis, Dorothy and Joanne VanSandt (the VanSandts).[1] The Trivedis argue (1) that the trial court exceeded its jurisdiction by amending the judgment to correct a clerical mistake under Code of Civil Procedure[2]section 473, subdivision (d); (2) that the amended judgment is void because it contains an insufficient description of the real property awarded to the VanSandts; and (3) that substantial evidence does not support the trial court's application of the agreed-boundary doctrine, under which it quieted title in favor of the VanSandts. As Court explain, Court conclude that the amended judgment is void because it contains an insufficient description of the subject real property. Accordingly, Court vacate the judgment and Cortfyremand with directions for the trial court to enter judgment containing an adequate description of the subject real property.

Plaintiff (Chin), sued defendant WRI/Rancho San Marcos, LLC (WRI or the landlord), to allege entitlement under his lease to an award of damages and declaratory relief, based on WRI's alleged breach of contract in allowing competing restaurant businesses to operate in the same shopping center. The matter went to court trial and a nonsuit was granted as to one of the businesses, Panda Express (or Panda), which was operating within the premises of another tenant. After trial, the court rendered judgment for the landlord as to the remaining business, Super Buffet, finding no violations of the lease provisions. The court also awarded fees and costs, including expert witness fees. (Code Civ. Proc., 998.)
Chin appeals, contending the trial court incorrectly interpreted the lease in light of his arguments that (1) Chin's lease included an exclusivity paragraph, providing the landlord would not lease any space in the shopping center to any other restaurant whose principal business was a Chinese food restaurant, (2) the landlord breached the lease by allowing Panda Express to operate within the space leased to another tenant, and (3) the landlord breached the lease by allowing the other restaurant, Super Buffet, to serve a significant amount of Chinese food, which therefore represented part of its principal business. He also challenges the award of expert witness fees. Court reviewed Chin's arguments about the allegedly incorrect refusal by the trial court to consider extrinsic evidence to interpret the lease, and find the court followed proper contract interpretation principles. Moreover, nonsuit was appropriately granted as to the Panda Express business, because the lease did not afford Chin relief as to that business within another tenant's business. Substantial evidence supports the trial court's ruling on the Super Buffet claims, regarding the nature of its "principal business." Finally, there was no abuse of discretion in the amount of expert witness fees awarded. Court affirm.

A jury convicted appellant David Schiltz of receiving, withholding or concealing a stolen vehicle (Pen. Code, 496d), unlawfully driving a vehicle (Veh. Code, 10851, subd. (a)) and evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)). The trial court subsequently found true the allegations that Schiltz had suffered three prior prison terms ( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (b) (i), 1170.12). Schiltz challenges the jury convictions based on alleged instructional errors. He also challenges the sentence, arguing his 1978 guilty plea to a robbery charge does not qualify as a prior strike conviction. Schiltz also asserts, and the People concede, People v. Trujillo (2006) 40 Cal.4th 165 mandates reversal of the true finding that his prior Nevada conviction qualified as a prior strike conviction. Court agree and therefore reverse that true finding and order the issue remanded for retrial if the People so decide. (Id. at p. 174; Monge v. California (1998) 524 U.S. 721.)