CA Unpub Decisions

Defendants and appellants, Damion Varnado and Bryan Varnado, appeal from the judgments entered following their convictions, by jury trial, for first degree murder and possession of a firearm by a felon (Damion only), with firearm enhancements (Pen. Code, 187, 12021, 12022.53). Sentenced to state prison for 50 years to life (Damion) and for 25 years to life (Bryan), defendants claim there was trial error. In their accompanying habeas corpus petitions, defendants contend they were denied the effective assistance of trial counsel. The judgments are affirmed; the habeas corpus petitions are denied.

Ricko Reed appeals a judgment following conviction of attempted willful, deliberate, and premeditated murder, and shooting at an inhabited dwelling, with findings of personal firearm use and acts committed to benefit a criminal street gang. (Pen. Code, 189, 664, 246, 12022.53, subds. (b), (c), (d), & (e), & 186.22, subd. (b)(1).) Court affirm.

Plaintiffs, husband and wife, brought this action against a lender, initially alleging fraud. Three months before trial, plaintiffs amended the complaint, changing the theory of liability from fraud to breach of contract and dropping the wifes name from the case caption. A few weeks before trial, the entire case was voluntarily dismissed.
The lender moved for attorney fees pursuant to a provision in the promissory notes. The trial court determined that the lender was the prevailing party against both plaintiffs and was entitled to attorney fees incurred in defending the fraud portion of the case.
On appeal, plaintiffs assert various technical arguments as to why the trial court erred in awarding attorney fees. Court conclude that none has merit and affirm.

Appellants Denna James (James) and Alton Ruben (Ruben) were charged with possession for sale of cocaine base (Health & Saf. Code, 11351.5) and transportation of a controlled substance (Health & Saf. Code, 11352, subd. (a)). The information alleged that Ruben sustained a prior conviction for attempted carjacking (Pen. Code, 664; 215, subd. (a)),[1]a serious felony under the Three Strikes Law ( 1170.12, subds. (a) through (d); 667, subds. (b) through (i)). It was also alleged that both Ruben and James sustained convictions for which they served four separate prison terms within the meaning of section 667.5, subdivision (b). After the trial court denied a defense motion to suppress evidence obtained during the search of a vehicle operated by Ruben, the information was amended to include a count alleging that Ruben and James possessed a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). The first two counts were dismissed and Ruben and James entered pleas of no contest to the third count for possession of a controlled substance. On appeal, they contend that the motion to suppress should have been granted. As Court discuss below, this contention lacks merit. Court affirm the judgments.

Ronnie Molina was convicted of one count of first degree murder and two counts of attempted premeditated murder with firearm and gang allegations found true. In addition, Molina stipulated to the special circumstance allegation that he had a prior conviction for first degree murder. He was sentenced to state prison as follows: life without the possibility of parole plus 25 years to life on the murder count, a consecutive term of life plus 25 years to life on the first attempted murder count and a concurrent life sentence on the second attempted murder count. Molina appeals, claiming instructional error as well as error in connection with the jurys deliberations. Court affirm.

Richard J. Basmajian (Basmajian) and Carla Adelmann (Adelmann) were the primary beneficiaries of their fathers estate. This is the third appeal arising from the distribution of the estate. In the first appeal (Case No. B146995, Basmajian I) we held that a referee had the authority to consider whether a $250,000 loan to Basmajian was forgiven and transmuted to a gift or whether it was an asset of the trust. We also held that Basmajian had adequate notice that the characterization issue would be addressed by the referee. In the second appeal (Case No. B156908, Basmajian II) we held that there was substantial evidence to support the trial courts finding that an amendment to the trust was the product of undue influence and thus, was null and void. In the current appeal, Court hold that the two prior appeals did not violate the trusts no contest clause.

Jeremy Harrison appeals from the judgment following his jury conviction for one count of murder and one count of attempted willful, deliberate, and premeditated murder. The jury also found related gun use enhancement allegations true. Appellant contends the trial court erred in failing to instruct the jury on proximate cause where there was evidence of multiple shooters and in denying his motion to suppress evidence based on his allegedly unlawful arrest. He further argues that the prosecutor exercised group bias in excusing seven African-American prospective jurors in violation of Batson Wheeler and thus the trial court erred in denying the Wheeler motion. Court conclude the trial court prejudicially erred in failing to instruct the jury on proximate cause. Accordingly, Court reverse as to count I and remand.

In this derivative lawsuit, plaintiffs, minority shareholders of a holding company that owned a bank, alleged that the banks directors, officers, and majority shareholders committed misfeasance. The board of directors of the banks holding company appointed a special litigation committee (the Committee) to investigate the charges and to determine whether the holding company should undertake the litigation. The Committee recommended that the derivative action be terminated. The trial court entered summary judgment against the minority shareholders based upon the special litigation committee defense.The minority shareholders appeal. To overcome the special litigation defense on summary judgment, the minority shareholders must raise a triable issue of material fact to show that the Committee was not independent or that the Committee conducted an inadequate investigation. (Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 185 (Desaigoudar).) Because the minority shareholders did not raise a triable issue of material fact, Court affirm.

The trial court sustained a petition under Welfare and Institutions Code section 602 against minor and appellant Frank B. The court found true allegations that Frank B. committed residential burglary and grand theft. On appeal, Frank B. makes two contentions. First, there is insufficient evidence to support the true findings as to burglary and grand theft. Second, a condition of probation that he stay away from places where known users congregate is vague and overbroad. Court modify the condition of probation and affirm the judgment as modified.

Defendant Amy Pina Kim (seller) entered into a contract to sell a market and the property on which the market sat to plaintiff Mekonnen Tafere Abraha (buyer). Two escrows were opened, one for the market and the other for the property; they were to close concurrently. It subsequently appeared that seller could avoid a $3,000 prepayment penalty on her own mortgage on the property if the sale of the property were to be delayed nine months. The parties modified their agreement to close the sale of the market as originally planned, and close the sale of the property after the prepayment penalty period had elapsed. The sale of the market was consummated as scheduled, but the seller ultimately refused to sell buyer the property. Buyer brought suit for specific performance. After a court trial, judgment for specific performance was entered in favor of buyer. Seller appeals, arguing that the evidence was insufficient to support the trial courts conclusion that the parties had modified their agreement. Court disagree and affirm.

RV World and Margaret Rudolph appeal from a judgment of dismissal after an order granting summary judgment against them disposed of all causes of action against National RV, Inc. (National). RV World contends the doctrine of collateral estoppel did not apply to bar its claims because the issue adjudicated in a prior administrative hearing was not identical to any dispositive issue in this case. Court affirm.

A jury found defendant and appellant John D. Rodriguez guilty of one count of possession of methamphetamine for sale. The jury also found true a gang allegation under Penal Code section 186.22, subdivision (b)(1). Defendants sole contention on appeal is there was insufficient evidence to prove that he possessed the methamphetamine for the gangs benefit. Court affirm the judgment.

Defendant and appellant Ted Nguyen filed an unsuccessful anti-SLAPP motion (Code Civ. Proc., 425.16). He did not seek appellate review. One year later, he filed a second anti-SLAPP motion in the same action, purportedly based on new law, under the authority of Code of Civil Procedure section 1008, subdivision (b). The motion was denied, on the basis that the new authority on which Nguyen relied was distinguishable. Nguyen now appeals, attempting to challenge on appeal not only the denial of his motion for reconsideration, but also the initial denial of his anti-SLAPP motion. Court conclude that only the denial of the motion for reconsideration is before us, and that the trial court did not err in denying that motion. Court affirm.

Appellant is the mother of Omar J. born in July 2002. Appellant was herself a dependent minor when she gave birth to Omar at the age of 16.
The Department of Children and Family Services (DCFS) intervened in March 2003, when Omar was 8 months old, after appellant threatened suicide. At the time, appellant and Omar were living together in a group home. Omar was placed with his father, who was living with his mother, Omars paternal grandmother. Appellant did not contest the petition, which, as amended, stated she lack[ed] stability and left the child without appropriate supervision when she was under medical observation for the suicide threat.
The order is affirmed.