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Restraining Order for Verbally Abusing Neighbors, Plus Criminal, Tort & Trust Matters

By FindLaw Staff on September 30, 2010 3:08 PM

People v. Vance, A122777, concerned a challenge to a conviction of a defendant for first degree murder.  In reversing the conviction, the court remanded the matter as,  the prosecutor made a sustained Golden Rule closing argument by arguing that the jury should "walk in the victim's shoes," and to "relive what the victim experienced"  Further, the prosecutor's misconduct and the trial court's refusal to admonish the jury demonstrate reversible error.  However, the court held that there was no error in the denial of defendant's suppression motion.


People v. Mosley, G038379, concerned a challenge to the trial court's order requiring defendant to register as a sex offender, following a jury acquittal of defendant of any sexual offense, and a guilty verdict only of misdemeanor assault.  The court modified the trial court's judgment by striking the sex offender registration requirement as, imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum.  The facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt, which was not done so in this case.

Malatka v. Helm, H032417, concerned a challenge to the trial court's denial of defendant's motion to dissolve an order restraining her from verbally harassing her neighbor and the neighbor's husband.  In affirming, the court held that, to the extent the current appeal from an order implicitly refusing to dissolve a restraining order presents issues that could have been raised in an appeal from the original restraining order, those issues are not reviewable in this appeal.  Also, because the alleged evidentiary error by the trial court in refusing to consider the declarations of defendant's witnesses as defense evidence at the hearing could have been raised in an appeal from an earlier order, it is not reviewable on appeal from the later order implicitly denying the request to dissolve the restraining order.  The court held that defendant's claim that the trial court erred in denying a motion to strike the testimony of a witness because the witness did not appear for further cross-examination on the date of the continued hearing is without merit.  Lastly, defendant's request to reverse the judgment is denied as her appeal has become moot.

In re Shaun R., H035112, concerned a minor defendant's challenge to the juvenile court's imposition of several conditions of probation for his convictions for attempted auto burglary, misdemeanor vandalism, and  misdemeanor exhibiting deadly weapon.  In dismissing the matter for lack of jurisdiction, the court held that the "all prior orders" provisions in a 2009 Order did not create a right to appeal 2008 Orders that were already final, and the appeal of the 2008 Order is not properly before the court.

In re E.O., H035462, concerned a challenge to a condition of probation restricting defendant's freedom to approach or enter courthouses, in a trial court's order placing a minor defendant on probation after finding that he came within the jurisdiction of the juvenile court because he possessed a knife on school grounds.  In reversing, the court held that, on the record, the challenged condition is overbroad as the trial court should reconsider the necessity for, and thus the purpose of, the condition.

Chan v. Lund, H034196, concerned a challenge to the trial court's grant of defendants' motions to enforce a settlement agreement under Code of Civil Procedure 664.6, arising from a homeowner's suit against the defendants, for cutting a number of trees on plaintiff's property adjacent to a fence separating his property and the property of defendants.

In affirming, the court rejected plaintiff's contentions, that the court should not have enforced the settlement because his execution of the settlement memorandum was obtained through extortion or because defendants' motions to enforce constituted violations of section 496(a) of the Penal Code.  The court held that plaintiff's contentions that as a result of his attorney's conduct, the settlement agreement was subject to rescission under various legal theories including economic duress, undue influence, and fraud, are without merit as plaintiff has failed to cite to specific portions of the appellate record in support of these assertions.  Lastly, because there is no specific order or ruling in which the trial court held that plaintiff was barred from introducing evidence to oppose enforcement of the settlement, plaintiff's constitutional argument need not be addressed.

Araiza v. Younkin, B221815, concerned a challenge to the trial court's order confirming ownership of a savings account to a lawyer, as successor trustee of a living trust, and naming the lawyer's mother the beneficiary of that account, over decedent's step-daughter's objections.  In affirming, the court held that the trial court properly relied on the living trust to find that the decedent intended to change the beneficiary of her Totten trust from the step-daughter to the lawyer, and because the change was made by a living trust rather than a will, it is not invalidated by section 5302(e).  Also, the step-daughter's argument that the transfer of the savings account to the lawyer is invalid pursuant to section 21350(a)(2) because the lawyer drafted the living trust and the beneficiary is his mother, is forfeited because she did not raise it in a timely fashion or obtain a ruling on it from the trial court.

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