CA Unpub Decisions

Social media content can play a pivotal role in a criminal or juvenile trial, but like all evidence, sometimes it turns out to be significant, and sometimes it does not. Here, it does not affect the outcome.
E.M. (the minor), a ward of the court, contends: (1) there was insufficient evidence she committed assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); and (2) the juvenile court erred in denying her motion to dismiss on grounds the prosecution failed to produce and/or preserve favorable, exculpatory video evidence of the assault that found its way onto Facebook. We reject both contentions.The court imposed a probation condition that the minor have no contact with the victim in its oral pronouncement of judgment. We modify a contrary minute order and affirm.

Plaintiffs Sotirios Papavasiliou and Georgia Papavasiliou (collectively referred to as Papavasiliou), as trustees of the 2005 Papavasiliou Family Revocable Trust, appeal from the judgment entered on their complaint against defendants Shell Pipeline Company and Equilon Enterprises LLC (collectively referred to as Shell) for breach of contract (lease) and common count (rent). They contend Shell paid the wrong amount in holdover rent between November 2010 and October 2013 and thus, the trial court erred in concluding Shell did not breach the lease. We disagree and affirm the judgment.

A jury convicted defendant Frank Acosta, Jr., of transportation and possession for sale of methamphetamine. (Health & Saf. Code, §§ 11378, 11379, subd. (a).) Defendant admitted having six prior convictions for possession of a controlled substance, three prior convictions for transportation of a controlled substance, and the service of three prior prison terms. The court sentenced defendant to 10 years. Defendant challenges the sufficiency of the evidence to prove he possessed methamphetamine, or in the alternative, that he possessed methamphetamine for sale. Defendant also contends the court failed to rule on his oral motion for a new trial, or in the alternative, that his attorney’s failure to pursue a motion for a new trial amounts to ineffective assistance of counsel. We reject defendant’s arguments and affirm the judgment.

The trial court denied Anthony Eugene Mack’s petition for resentencing under Penal Code section 1170.126 (Proposition 36) finding “resentencing . . . would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Mack contends the court erred in failing to apply the definition of “‘unreasonable risk to public safety’” contained in section 1170.18, subd. (c) (Proposition 47), which “means an unreasonable risk that the petitioner will commit a new violent felony” within the meaning of section 667, subdivision (e)(2)(C)(iv). After the parties’ briefs were submitted, our Supreme Court decided People v. Valencia (2017) 3 Cal.5th 347 (Valencia), which held Proposition 47’s definition of unreasonable risk of danger to public safety does not apply to resentencing under Proposition 36. Mack also contends he was entitled to have a jury determine whether he posed an unreasonable risk to public safety under Proposition 36. As Mack notes, the Cour

The issue presented by this appeal is whether the term “without prejudice” in a settlement agreement used in reference to withdrawal or dismissal of claims is ambiguous and can be construed to mean “with prejudice.”
A settlement agreement between Appellants and Respondent, Brian Moshenko, has a provision requiring both sides to dismiss or withdraw without prejudice their respective claims. Appellants later refiled their claims. At trial, there was conflicting testimony from several parties about their respective, subjective understanding of the meaning of the term “without prejudice” but no testimony that anybody conveyed that understanding to another person. In light of this testimony and other provisions of the settlement agreement, the trial court concluded the term “without prejudice” is ambiguous and the agreement constituted a full release of, and a full defense to, Appellants’ claims.

Nonparty Tianjin Tianwu International Trade Development Co., Ltd. (Tianwu) appeals from the judgment the trial court entered on plaintiff Tianjin Weinada International Trading Co., Ltd.’s (Weinada) claims against defendants Yang Wang, Pinland, Inc., and Pei Yi Sun. In addition to awarding Weinada nearly $4 million, the judgment also set aside the transfer of a residential property from Wang and Pinland to Sun as a fraudulent transfer, and imposed a constructive trust on title to that property in favor of Weinada and against Wang, Pinland, and Sun. The judgment does not purport to award any relief against Tianwu, and Wang, Pinland, and Sun have not appealed from the judgment. Claiming title to the residential property as a subsequent, good faith purchaser for value, Tianwu appeals to challenge the judgment’s award relating to the property. Weinada moved to dismiss Tianwu’s appeal, arguing Tianwu lacked standing because it was not a party of record in the trial court.

Fred Kamgar appeals from a judgment ordering him to pay Moira Kamgar $1,952,056.50 for breach of his spousal fiduciary duties in failing to disclose to her that he risked in options trading an additional $8 million more than the $2.5 million in community assets she agreed he could trade in their investment account. The trial court determined Fred’s undisclosed and reckless trading resulted in a loss of almost $4 million, in addition to losing the initial $2.5 million. Fred contends the evidence does not support the conclusion he violated his fiduciary duties. Moira in her appeal contends she was entitled to more than the $1.9 million award she received as her community interest in the $4 million loss. But as we explain, the law and the evidence amply support the court’s award, and we therefore affirm the judgment.

On September 15, 2017, the Attorney General filed an informal response. With respect to petitioner’s request for a belated appeal from the sentence imposed on March 24, 2017, the informal response stated, “respondent does not oppose the petition as he appears to have made a prima facie case for ineffective assistance of counsel. (See Roe v. Flores-Ortega (2000) 528 U.S. 470, 478.)” Respondent is correct because petitioner asserts under penalty of perjury that he did not know he could file an appeal, he was never so informed by his attorney, and he “just found out of this in prison.”
The informal response opposed granting petitioner a belated appeal from his original conviction and sentence in May 2016 because petitioner did not make any effort to excuse his delay. Respondent is correct. (In re Anderson (1971) 6 Cal.3d 288.)

A jury convicted appellant Severino Arrango Perez of assault with a deadly weapon or by means of force likely to produce great bodily injury by a person confined in a state prison (Pen. Code, § 4501/count 1); battery by a person confined in a prison on a non-confined person (§ 4501.5/count 2); and resisting an executive officer through force or violence (§ 69/count 3). The jury also found true a great bodily injury enhancement (§ 12022.7, subd. (a)) in count 2. In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)(1)) and allegations that Perez had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

A jury convicted defendant Eugene Louis Jones of criminal threats (Pen. Code, § 422; count 2), intimidating a witness by force or threat of force (§ 136.1, subd. (c)(1); count 3), misdemeanor assault (§ 240; count 1), and misdemeanor spousal battery (§ 243, subd. (e)(1); count 4). Defendant admitted he had a prior conviction for violating section 245, subdivision (c), that qualified as a serious felony conviction (§ 667, subd. (a)(1)) and as a strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a total prison term of 12 years four months. On appeal, defendant contends insufficient evidence supports his conviction of intimidating a witness by force or threat of force. We affirm.

Defendant and appellant, J.S. (father), challenges the juvenile court’s termination of his parental rights over his daughter, N.F. Father contends the court erred because the only obstacle to placing N.F. in his care was his poverty-based lack of housing. Father maintains that the court’s severance of the parent-child relationship based on poverty violated his right to due process. In addition, he argues the court misapplied the parental benefit exception to adoption by reading a requirement of day-to-day contact into the exception. Defendant and appellant, S.Y. (mother), for her part, maintains that if we reverse the termination of father’s parental rights, we must also reverse the termination of her rights.

Defendant and appellant, Gerald Gutierrez, pled guilty to receiving stolen property, a motor vehicle. (Pen. Code, § 496d, subd. (a); count 2.) Pursuant to the plea agreement, the court granted defendant probation on various terms and conditions. After defendant admitted violating a term of his probation for a fourth time, the court sentenced defendant to the upper term of three years in state prison.
After defendant’s counsel filed a notice of appeal, this court appointed counsel to represent him on appeal.

Defendant and appellant, Carlos Garcia, pled guilty to possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and possession of drug paraphernalia (count 2; Health & Saf. Code, § 11364). Defendant additionally admitted he had suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)) and a prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to four years of incarceration, as indicated.
After defendant filed two notices of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying one potentially arguable issue: whether the court erred in denying defendant’s request to relieve the public defender and appoint new counsel. We affirm.

Defendant and appellant Gilberto Lopez-Valencia appeals from the trial court’s denial of his motion to reduce his felony conviction to a misdemeanor, pursuant to Penal Code section 17, subdivision (b). We reverse and remand.