CA Unpub Decisions

Defendant Emmanuel Ben Burts was convicted by jury of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1)[1] and being a felon in possession of ammunition (§ 30305, subd. (a); count 2). He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to seven years in prison.
On appeal, defendant contends the two statutes that prohibit a felon from possessing a firearm and ammunition violate his constitutional right to bear arms under the Second Amendment of the United States Constitution. We conclude that the statutes in question do not contravene defendant’s Second Amendment rights as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller).

Michael Miroyan appeals the judgment after a court trial pertaining to a real property sales contract. More specifically, Miroyan contends the trial court erred in holding the contract at issue provided for the sale of all 269 acres of real property located outside the City of Patterson. He asserts the contract permitted him to purchase an unsubdivided portion of an existing parcel on the property. Further, he contends the contract violates the Subdivision Map Act (Gov. Code, § 66410 et seq.; hereafter SMA) and is therefore void. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Henry Gnesa, Jr., individually and as trustee of a testamentary trust, Jill Gnesa, and Henry Gnesa, Sr. (jointly, the Gnesas; individual references to Henry are to Henry Gnesa, Jr.) own real property near Patterson, California. The property at issue here consists of four parcels totaling 269 acres. The land is used to grow almonds and walnuts. Water sources and irrigation are in place and a walnut huller is also located on the property.
In late 2004, the Gnesas and Miroyan entered into negotiations regarding the sale of the property. Henry testified Miroyan approached him regarding the sale; Miroyan testified Henry called him and asked him if he was interested in purchasing the property. In any event, after the parties’ attorneys exchanged various drafts of the agreement, an agreement was executed between the Gnesas and Miroyan on January 6, 2005.

On December 12, 2012, the trial court sustained a demurrer to plaintiff's first amended complaint without leave to amend. Plaintiff Maria Cervantes (“Cervantes”) appeals from the ensuing judgment.

Sid C. appeals from a restraining order issued under Welfare and Institutions Code section 213.5[1] in the juvenile dependency case of his minor sons, Michael C. and Brandon C. Sid contends that the court erroneously admitted hearsay statements contained in a social services report and that substantial evidence does not support the court's restraining order. Sid further contends that the restraining order is impermissibly vague because the court did not specify the distance that Sid must maintain between himself and a protected person. We conclude that even if Sid is correct that the alleged hearsay statements should have been excluded, there is still substantial evidence to support the court's restraining order. However, we modify the order to include the omitted distance. As so modified, we affirm the order.

Cross-complainants and appellants Shahram Elyaszadeh, Elko Mall, LLC, and Malibu Ocean View Villas, LLC, appeal from a judgment of dismissal following an order sustaining a demurrer without leave to amend in favor of cross-defendant and respondent RREF WB Acquisitions, LLC, in this action arising out of loan guarantees. Appellants contend their amended cross-complaint states a cause of action for fraud, based on the Supreme Court’s recent decision in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169 (Riverisland). We conclude the principles expressed in Riverisland apply retroactively. Therefore, we reverse and remand for further proceedings.

A modification decision.

A modification decision.

A jury found defendant and appellant Frank Howard guilty of second degree murder. On appeal, defendant argues his trial counsel was ineffective in failing to request CALCRIM No. 3428, and in failing to object to improper statements by the prosecutor during closing argument. We affirm.

The minor, Brandon F. (appellant) appeals from an order declaring him to be a ward of the court pursuant to Welfare and Institutions Code section 602, and committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) for a maximum confinement period of 43 years eight months, after a finding that he committed attempted murder (Pen. Code, §§ 187, subd. (a); 664,[1] count 15), seven counts of second degree robbery (§ 211, counts 1, 3, 7, 9, 11, 13, and 14), and seven counts of false imprisonment (§ 236, counts 2, 4, 5, 6, 8, 10, and 12). Appellant contends that (1) there is insufficient evidence to support the juvenile court’s finding that he committed attempted murder, (2) the juvenile court relied on a legally incorrect theory to find him guilty of attempted murder, and (3) the four false imprisonment sentences should have been stayed pursuant to section 654 and the juvenile court erred in imposing concurrent sentences on those counts.
We affirm.

Plaintiff, cross-defendant, and appellant Lisa Du Boise appeals from an order granting three special motions to strike under the anti-SLAPP statute,[1] Code of Civil Procedure section 425.16,[2] and an order awarding attorney fees in favor of defendants, cross-defendants, and respondents Rosslyn Hummer, Frederick J. Ufkes, Eric Peterson, and the law firms of Rutter, Hobbs & Davidoff, Inc. (RHD), and Hinshaw & Culbertson, LLP (H&C), attorneys in this malicious prosecution action. The attorneys represented Rodney Unger in the underlying action to recover funds that he deposited in Du Boise’s bank account. On appeal, Du Boise contends: 1) the trial court abused its discretion in making evidentiary rulings; 2) the attorneys lacked probable cause to pursue one or more of the causes of action in the underlying case; and 3) the trial court abused its discretion by awarding excessive attorney fees.
Unger appeals from the portion of the trial court’s order denying his motion for joinder in the anti-SLAPP motions. Unger contends the trial court improperly weighed his credibility and the evidence showed he had the same probable cause as his attorneys to pursue the underlying action.
We conclude Du Boise failed to show that the attorneys lacked probable cause to pursue the causes of action in the underlying case. Du Boise has not shown the evidentiary rulings have an impact on our determination on the merits. The trial court properly exercised its discretion to reduce the attorney fee requests far beyond the amounts incurred and no abuse of discretion has been shown on appeal. Unger’s motion for joinder in the anti-SLAPP motions was properly denied, however, because issues of credibility exist that can only be resolved by a finder of fact. Therefore, we affirm the order granting the anti-SLAPP motions and denying Unger’s joinder, and we affirm the order awarding attorney fees.

A jury convicted defendant Richard Kruse of committing a forcible lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).)[1] The trial court sentenced him to a prison term of ten years. Defendant appeals upon contentions that (1) evidence of uncharged lewd acts with another child was wrongly admitted; (2) the trial court failed in its duty to instruct the jury on the lesser included offense of a non-forcible lewd act; (3) there is insufficient evidence that force was used; (4) the court erred in its admission and consideration of certain information during sentencing; and (5) the court failed to provide defendant with a hearing on his ability to pay before ordering him to pay $5,000 for legal assistance he received from the public defender.
We conclude that evidence of uncharged prior lewd acts was properly admitted but that the trial court erred in failing to instruct the jury on the lesser included offense of a non-forcible lewd act. We also find insufficient evidence that defendant used force, violence, duress, menace or fear in committing the act. There was no error in the court’s consideration of certain information at sentencing and we conclude that defendant forfeited his claim that legal costs were imposed upon him without a determination of his ability to pay. We shall modify the judgment to reduce the conviction from commission of a forcible lewd act to commission of a non-forcible lewd act and remand for resentencing.

A jury convicted defendant Richard Kruse of committing a forcible lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).)[1] The trial court sentenced him to a prison term of ten years. Defendant appeals upon contentions that (1) evidence of uncharged lewd acts with another child was wrongly admitted; (2) the trial court failed in its duty to instruct the jury on the lesser included offense of a non-forcible lewd act; (3) there is insufficient evidence that force was used; (4) the court erred in its admission and consideration of certain information during sentencing; and (5) the court failed to provide defendant with a hearing on his ability to pay before ordering him to pay $5,000 for legal assistance he received from the public defender.
We conclude that evidence of uncharged prior lewd acts was properly admitted but that the trial court erred in failing to instruct the jury on the lesser included offense of a non-forcible lewd act. We also find insufficient evidence that defendant used force, violence, duress, menace or fear in committing the act. There was no error in the court’s consideration of certain information at sentencing and we conclude that defendant forfeited his claim that legal costs were imposed upon him without a determination of his ability to pay. We shall modify the judgment to reduce the conviction from commission of a forcible lewd act to commission of a non-forcible lewd act and remand for resentencing.

The family court ordered husband, appellant and cross-respondent James M. Kliegel to pay approximately eight-and-a-half years of temporary spousal support and another one-and-a-half years of permanent support to his former wife, respondent, and cross-appellant, Cathryn E. Lampe Kliegel. After considering numerous factors relevant to determining whether to maintain or terminate jurisdiction, the family court also terminated jurisdiction. Wife contends the court erred in terminating jurisdiction because, given her disability, there is no evidence she will ever become fully self-supporting, let alone in a year. Husband challenges the number of years of temporary support ordered, but only if we reverse the jurisdiction termination order. Given the family court’s broad discretion in shaping spousal support awards, and given the purpose of spousal support as discussed in California court decisions, we affirm the court’s termination order and dismiss husband’s conditional appeal.

Petitioner J.P., father of the minor J.G., seeks a writ of mandate (Cal. Rules of Court, rule 8.452)[1] directing the juvenile court to vacate its orders setting a Welfare and Institutions Code section 366.26 hearing[2] and terminating family reunification services and to order additional family reunification services for him. He claims that he is entitled to this relief because substantial evidence does not support the juvenile court's finding that reasonable reunification services were provided.[3] Specifically, he asserts that the Santa Clara County Department of Family and Children's Services (Department or DFCS) "failed to follow-up" with its critical referral of father to a Parenting the Medically Fragile Child class. We conclude that substantial evidence supports the challenged finding and deny writ relief on the merits.