CA Unpub Decisions

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.)

James Dardeen (James), his wife, Lonna Dardeen (Lonna) and Brandi Hutchison appeal from an order denying their special motion to strike a cross-complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. (All undesignated statutory references are to the Code of Civil Procedure.) Court conclude that the anti SLAPP statute applies because the cross complaint arose from acts in furtherance of the constitutional right of petition and that cross complainants failed to show a probability of prevailing on the merits. Accordingly, Court reverse the order denying the anti SLAPP motion and remand the matter with instructions to grant the motion.

In this change of custody case substantial evidence in the record supports the trial court's decision to change the custody of the minor child from his mother to his father, who lives in Pennsylvania. In particular, the evidence shows that in his mother's care the boy did not appear to be developing emotionally and that he presented an unusually flat affect and glum demeanor. A psychologist who examined the child, his mother and his father believes these conditions are a serious concern and attributable to the child's unusually close attachment to his mother. In light of this record the trial court did not err in changing custody to the child's father and providing for reasonable visitation for the child's mother. Having changed custody, the trial court was also warranted in permitting the father to take the child to the father's new home in Pennsylvania. Order affirmed.

Jose R. Rubio appeals a restitution order of the superior court following his plea of guilty to felony drunk driving causing great bodily injury. He contends that the court erred in ordering him to pay $8,426.56 in restitution to the victim because (1) the court lacked jurisdiction to alter the original sentence it imposed based on his guilty plea; (2) even if the court had jurisdiction to make such an order, it abused its discretion in doing so; and (3) the order violated his due process rights. Court disagree and affirm.

A jury convicted Defendant of unlawfully taking or driving a vehicle (Veh. Code, 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, 496d), evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)), and resisting an officer ( 148, subd. (a)(1)). In a bifurcated hearing, Martinez admitted a prior conviction of unlawfully taking or driving a vehicle ( 666.5, subd. (a)) and serving a prior prison term ( 667, subd. (b)). The court sentenced Martinez to four years eight months in prison, consisting of the middle term of three years for unlawfully taking or driving a vehicle, the middle term for receiving a stolen vehicle, stayed pursuant to section 654, one third the middle term for evading an officer, and one year for the prison prior. Martinez contends the trial court erred in entering a conviction for receiving a stolen vehicle because that is a lesser included offense of vehicle theft. The judgment is affirmed.

A jury convicted Defendant of two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1); counts 1 & 5), vandalism over $400 ( 594, subd. (a)(b)(1); count 2), hit and run (Veh. Code, 20002, subd. (a); count 3), and two counts of reckless driving (Veh. Code, 23103, subd. (a); counts 4 & 6). The jury also found true allegations as to counts 1 and 5 that Lockman had personally used a deadly weapon in those crimes ( 1192.7, subd. (c)(23)). Lockman then admitted allegations he had previously suffered a prior conviction for a serious or violent felony ( 667, subd. (a)(1), 668, 1192.7, subd. (c)), which also constituted a strike under the Three Strikes law ( 667, subd. (b)-(i); 1170.12). After denying Lockman's motion for a new trial and granting his motion to strike his prior strike, the trial court sentenced Lockman to prison for a total of 10 years, consisting of an upper four year term for the count 1 assault with a deadly weapon, one year consecutive for the count 5 deadly weapon assault (one-third the midterm), plus five years for the serious prior.
Defendant appealed, contending there was insufficient evidence to support his count 5 assault with a deadly weapon conviction, the trial court abused its discretion in denying his new trial motion directed to count 5 based on modifying a previously submitted jury instruction at the People's request after the jury had already been instructed, and he was denied a fair trial by the jurors being given a transcript of a 911 call containing a prejudicial statement, which the trial court had ordered redacted before the playing of the call. Subsequent to the filing of his opening brief, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham) determined that California's Determinate Sentencing Law (DSL), which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and United States v. Booker (2005) 543 U.S. 220 (Booker). Defendant has filed a supplemental brief claiming the imposition of his upper term sentence for count 1 is unconstitutional under Cunningham. Court affirm Defendant's convictions and sentence.

Maria E. and Severiano R. appeal orders declaring their minor daughter Jennifer R. a dependent of the juvenile court under Welfare and Institutions Code[1]section 300, subdivision (b) and removing Jennifer from their custody under section 361, subdivision (c)(1). Maria and Severiano challenge the sufficiency of the evidence to support the court's jurisdictional finding that Jennifer suffered or was at risk of suffering serious physical harm. They further challenge the sufficiency of the evidence to support the court's dispositional order removing Jennifer from parental custody. Court conclude substantial evidence supports the court's jurisdictional order. As to the court's dispositional order, Court conclude the issue is moot because Jennifer has been returned to Maria's custody.

Julie A. Munro appeals from an order refusing to increase her temporary spousal support and imputing income to her. She contends the trial court abused its discretion in not modifying temporary spousal support after she lost her job and by imputing full time minimum wage income to her for the purpose of determining temporary spousal support. Court agree and reverse the order.

The juvenile court declared William W. a ward (Welf. & Inst. Code, 602) after he admitted committing burglary (Pen. Code, 459). The court dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) charges that the burglary was to a residence ( 460) and that William committed grand theft ( 487, subd. (a)), and caused over $400 in damages through malicious mischief ( 594, subds. (a), (b)(1)). The court placed William on probation subject to conditions, including a condition he pay victim restitution. At a restitution hearing, the court ordered William to pay victim restitution in the amount of $3,265. William contends the trial court abused its discretion by ordering him to pay $3,265 restitution. The juvenile court's order that William pay $3,265 victim restitution is affirmed.

In superior court case No. SCD199014, Oscar Soto entered a negotiated guilty plea to taking or driving a stolen vehicle. (Veh. Code, 10851, subd. (a).) He admitted a prior conviction of taking or driving a stolen vehicle and serving four prior prison terms. (Pen. Code, 666.5, subd. (a), 667.5, subd. (b).) The court sentenced him to prison for a stipulated seven years: the three-year middle term for taking or driving a stolen vehicle with a prior conviction of the same crime, enhanced by four one-year terms for prior prison terms.
In superior court case No. SCD198195, Soto entered a negotiated guilty plea to selling a controlled substance. (Health & Saf. Code, 11379, subd. (a).) The court imposed a prison term concurrent with the term in case No. SCD199014. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

Defendant entered a negotiated guilty plea to forgery of a check. (Pen. Code, 470, subd. (d).) The court suspended imposition of sentence and placed her on three years' probation. At a restitution hearing, the court ordered McKnight to pay $575 victim restitution. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
The judgment is affirmed.

Mary E. appeals a judgment terminating her parental rights to her son, Omar E., and an order denying her Welfare and Institutions Code section 388 petition, in which she requested that she be provided reunification services and that Omar be placed with her. She contends that the juvenile court abused its discretion by denying her petition because she established that there had been a significant change in circumstances, and that reunification was in Omar's best interests. Omar's father, Tomas M., joins in Mary's brief and argues that his and Mary's parental rights should be reinstated. Court affirm.

Defendant was convicted by a jury of one count of aggravated assault (Pen. Code, 245, subd. (a)(1)) and four counts of attempted premeditated and deliberated murder ( 187, subd. (a), 664). True findings were made that all the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), Defendant personally used a knife to commit the aggravated assault ( 12022, subd. (b)(1)), and during the attempted murders, a principal intentionally discharged a firearm resulting in great bodily injury to one of the victims ( 12022.53, subds. (b), (c), (d), & (e)(1), 12022.5, subd. (a)(1)). Defendant was sentenced to a determinate term of nine years followed by an indeterminate term of 160 years to life.
Defendant contends hearsay statements indicating he was not present at the shootings were improperly excluded, instructions on a "kill-zone" theory were legally insufficient, unanimity instructions were improperly omitted and the deadly weapon enhancement attached to the aggravated assault charge should be stricken. Court agree the deadly weapon enhancement should be stricken but in all other respects affirm the judgment.