CA Unpub Decisions

Defendant Anousone Phongviseth pleaded guilty to first degree murder (Pen. Code, 187, subd. (a); further statutory references are to the Penal Code) with an enhancement for personally discharging a firearm. ( 12022.53, subd. (d).) Pursuant to a plea agreement, a special circumstance allegation was dismissed and defendant was sentenced to state prison for a term of 50 years to life. Defendant appeals, contending the trial court did not properly respond to a letter from him seeking to withdraw his plea. Because defendant has not obtained a certificate of probably cause ( 1237.5), Court dismiss the appeal.

Ruben M. Robles appeals from a family court judgment dissolving his marriage to Carla Robles, dividing the parties assets and debts, and awarding custody of their two children to Carla.
For the reasons that follow, Court affirm the judgment.

Anthony Kekulawela, appearing in propria persona, purports to appeal from the denial of his motion to enforce an order recusing the San Joaquin County Department of Child Support Services in this action. The San Joaquin County Superior Court denied his motion after it found that jurisdiction over the matter of his payment of child support had been transferred to Stanislaus County in 2004. The court also denied Kekulawelas related requests for attorney fees and costs, and for orders to stop child support [wage] garnishment and for the return of previously garnished sums plus interest. Court affirm the judgment (order). Each of Kekulawelas contentions fails either because: 1) it is moot; 2) it is not supported by the record or citations to authority; or 3) it is barred by the legal doctrine of res judicata.

Defendant Milo Rick Acosta pled no contest to vandalism (case No. CRF06811) and, as part of the negotiated plea agreement, charges in another proceeding against him (case No. CRF06812) were dismissed. Defendant was sentenced to three years in prison, and the trial court found he was not entitled to any presentence custody credits.
On appeal, defendant contends the trial court erred in denying him any presentence custody credits. Court disagree and affirm the judgment.

The will was discovered after letters of administration had been issued based on a finding that the decedent was intestate. In the first proceeding, the proponent of the will was aware of the pending proceedings to administer the intestate estate at the time he discovered the will, but he did not file his successor petition for probate until more than 120 days after the court issued its order determining intestacy and until more than 60 days after he had knowledge of the will. The probate court ruled that the successor petition was barred by the time limits set forth in Probate Code section 8226, subdivision (c). In the second proceeding, the court found that the petition for probate was timely because the proponent, who had not received notice of the prior probate proceedings, filed the petition within 60 days after he learned of the wills existence. Court affirm both orders.

Chester Ray Killebrew appeals his conviction on one count of possession of cocaine base for sale and one count of sale of cocaine base on grounds of insufficiency of the evidence and the admission of improper opinion evidence. Finding no error, Court affirm.

Home Depot USA, Inc., the nationwide chain of home improvement stores, employs Merchandising Assistant Store Managers (MASMs) to work 55 hours a week or more. The trial court denied plaintiffs motion seeking class certification. (Code Civ. Proc., 632.) Plaintiffs appeal.
Court hold the trial court did not abuse its discretion in determining that plaintiffs did not meet their burden of proof for class certification. The disputed issue, whether the proposed class is exempt from overtime wage laws, involves individual questions of fact that predominate over common issues, rendering class action treatment inappropriate. We also hold the trial court did not commit legal error, as urged by plaintiffs. Court reject plaintiffs continuously reiterated position that, for purposes of class certification, the trial court should consider only the realistic requirements of the job of MASM in deciding whether it qualifies for exempt status. Court affirm the judgment.

A jury found defendant and appellant, Sonya Rochelle Bullette (hereafter defendant), guilty as charged of premeditated attempted murder in violation of Penal Code sections 664 and 187, subdivision (a)[1](count 1), discharging a firearm from a vehicle in violation of section 12034, subdivision (c) (count 2), and robbery in violation of section 211 (count 3). The jury also found true the special allegations that defendant personally discharged a firearm, causing great bodily injury within the meaning of section 12022.53, subdivision (d), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced defendant to serve a term of life in prison on count 1, the attempted premeditated murder conviction, plus a term of 25 years to life on the firearm use enhancement.
Defendant contends in this appeal that the evidence is insufficient to support the jurys guilty verdicts on counts 1 and 2, and in any event the trial court did not properly instruct the jury on the charge alleged in count 2. Defendant also contends that the trial court erred when it allowed the prosecutor to introduce evidence of a statement made by the non-testifying codefendant and that the prosecutor improperly capitalized on that error. Court conclude that defendants claims are meritless and affirm the judgment.

Rampage Vineyard, LLC (Rampage), contends interpretation of contractual provisions is a judicial function and the trial court erred in permitting the jury to construe disputed contract provisions. Rampage also contends the trial court erred in its award of attorney fees to Michael Hat. Court affirm the judgment.

Appellant Donald R. McQuiller was arrested at a Wal-Mart store after obtaining a cash refund of $203.58 for a foam mattress. McQuiller had not paid for this mattress and it had not left the store. McQuiller testified that he did not receive any money in exchange for the mattress when he gave it to the clerk at the customer service counter.

McQuiller was convicted after jury trial of commercial burglary (count I) and petty theft with a prior theft conviction (count II). (Pen. Code, 459, 666.) He was sentenced to the upper term of three years imprisonment for count I; the upper term was imposed and stayed for count II.
Appellant argues that the trial court erroneously admitted of evidence of uncharged misconduct. Also, he cites imposition of the upper term as Blakely/Cunningham error. Neither argument is persuasive; Court affirm.

Appellant Jerald Ray Coronado was convicted after jury trial of two counts of arson of an inhabited structure; the jury found true two enhancement allegations that he proximately caused multiple structures to burn. It also found true allegations that he suffered a prior strike, a prior serious felony conviction and served a prior prison term. (Pen. Code, 451, subd. (d); 451.1, subd. (a); 667, subds. (a)(1), (c)-(j); 1170.12, subds. (a)-(e); and 667.5, subd. (b).) Appellant was sentenced to an aggregate term of 19 years imprisonment. Court affirm.

Jacqueline P. (Mother) appeals from an order at a post permanency planning review hearing (Welf. & Inst. Code,[1] 366.3) in which the juvenile court continued her sons J.W. and D.P. in long-term foster care. Mother contends: (1) the court failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; ICWA), and (2) the court erred in finding the boys should not be returned to her and denying reunification services. Court affirm.

Andres Arthur Lopez appeals from the judgment sending him to prison for a total of 25 years following his guilty plea to one count of residential burglary, after having one prior strike conviction,[1] two prior serious felony convictions, and three prior prison terms. (See Pen. Code, 459-460, 667, subds. (a) & (d)-(e), 667.5, subd. (b).)[2] The trial court had indicated prior to Lopezs change of plea that 25 years would be the lid on his sentence.
In this appeal, Lopez contends his waiver of his appeal rights was not knowingly and intelligently made and thus was invalid. If this contention prevails, he further argues that the sentencing court failed to state reasons for selecting the aggravated term, and the judgment must be reversed and remanded for resentencing. However, if this court holds that this issue was waived due to defense counsels failure to object at the sentencing hearing, Lopez then proposes that counsel rendered ineffective assistance by failing to object, necessitating reversal of the judgment and remand for resentencing. Finally, Lopez contends the court improperly imposed three separate one-year enhancements following an inadequate admission to the three prior prison term allegations. Court disagree.

Christopher Szabo appeals from the judgment sending him to prison for nine years after he violated his probation following his guilty plea to possessing methamphetamine and his admission that he had served six separate prior prison terms.[1] (See 667.5, subd. (b); Health & Saf. Code, 11377, subd. (a).) He appeals on the basis that his prison sentence, formulated under Californias determinate sentencing law (DSL), was in violation of the Sixth Amendment because the DSL granted authority to trial judges, instead of juries, to make factual findings and then impose the upper term in prison. (See Cunningham v. California(2007) 549 U.S., [127 S.Ct. 856, 860].) This conclusion was in conflict with the California Supreme Courts holding in People v. Black (2005) 35 Cal.4th 1238 (Black I). We are now asked to review the instant case in light of those decisions and the more recent opinions of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.