CA Unpub Decisions

Manuel Antonio Gonzalez III (Gonzalez) appeals from the trial courts order denying his petition for writ of errorcoram nobis. Gonzalez pled no contest to first degree residential burglary (Pen. Code, 459)[1]on December 17, 1997. The trial court sentenced Gonzalez to four years in prison, suspended imposition of sentence and granted Gonzalez three years formal probation. On June 4, 2007, Gonzalez, acting in propria persona, filed in the trial court a petition for writ of error coram nobis alleging his 1997 plea had been improper and that he therefore should be allowed to withdraw the plea. Court affirm the judgment (order denying the petition for writ of error coram nobis).

Plaintiffs Charel Winston and Alma M. Triche-Winston (collectively plaintiffs), appearing in pro. per., appeal from the denial of their petition for an injunction prohibiting harassment under Code of Civil Procedure section 527.6. They contend the trial court erred in (1) denying the petition; (2) failing to rule on all of the motions that were filed in connection with the petition; (3) denying their motion to strike defendants opposition to plaintiffs Response to Order to Show Cause for Civil Harassment Order; (4) failing to take in to [sic] account all of the facts in ruling on the petition; and (5) awarding defendants attorney fees. Plaintiffs also assert that their due process rights were violated because the political bias in the county made it impossible for the [trial] court to be impartial in its final ruling and the trial court was persuaded to deny plaintiffs petition because of the district attorneys malicious prosecution case against them. Mindful of our limited role in reviewing the issues raised by this appeal, Court affirm the judgment and the award of attorney fees.

In 1985 someone stabbed Jane Hylton to death. Fourteen years later, in 1999, detectives reopened the case. Detectives again interviewed Constance Dahl, one of the three people who discovered Hyltons body, about the murder. Confronted many years after the fact, Dahl confessed that defendant Ricky Leo Davis murdered Hylton following an argument about Hyltons 13-year-old daughter, Angela.[1] Dahl and Angela helped defendant clean up the murder scene and then the trio feigned discovering the body. An information charged defendant with murder. (Pen. Code, 187, subd. (a).)[2] A jury found defendant guilty of second degree murder. Sentenced to 16 years to life, defendant appeals, contending: (1) the court erred in excluding evidence indicating Hyltons husband killed her, (2) the court erred in allowing the prosecution to introduce evidence of a prior angry altercation between defendant and a neighbor, (3) the court violated defendants constitutional rights in intrusively questioning a hold out juror while defendant was not present, and (4) the parole revocation fine is improper. The People concede the trial court improperly imposed the parole revocation fine, which Court strike. In all other respects Court affirm the judgment.

A jury found defendant Karim Zen guilty of two counts of second degree murder and one count of attempted murder, and found that he personally discharged a firearm causing death or great bodily injury. Defendant was sentenced to a determinate term of seven years and to an indeterminate term of 105 years to life.
On appeal, defendant contends that he was prejudiced by prosecutorial misconduct during closing argument. Court disagree and affirm the judgment.

Defendants Soco, LLC (Soco), Rieker Shoe Corporation (Rieker), and America West Properties, Inc.,[1](AWP) appeal a judgment after the jury found them liable in the action of plaintiff Freestyle Martial Arts Corporation (Freestyle) for breach of contract (against Soco) and intentional inducement of breach of contract (against Rieker and AWP). On appeal, Rieker and AWP contend: (1) there is insufficient evidence to support the jury's finding that they are liable for intentional inducement of breach of contract; and (2) they are entitled to judgment because the manager's privilege applies to their conduct as a matter of law. Soco and Rieker contend the trial court erred by rejecting their request for an instruction on the propriety of their counsel's meeting with witnesses in the absence of Freestyle's counsel. All three defendants contend there is insufficient evidence to support the jury's finding on Freestyle's damages.

In 1971, the City of San Diego (City) and (SDG&E) entered into two franchise agreements for SDG&E to install gas and electric lines and facilities on streets owned by City. City retains the right to require SDG&E at its own expense to remove or relocate its lines and facilities if they conflict with City's use of the streets. Beginning in 1999, when City was constructing Petco Baseball Park in the area referred to as the East Village Redevelopment Project, a dispute arose regarding who should pay for SDG&E's relocation of utility lines and facilities undertaken at City's request. SDG&E filed a declaratory action in the trial court. City, Redevelopment Agency of the City of San Diego (Agency) and Padres, L.P. (the Padres) (collectively respondents), successfully moved for summary judgment and obtained an award of attorney fees. SDG&E appeals, contending as a matter of law it was not obligated to pay the total cost for the relocation of gas and electrical facilities for the Petco project; and, alternatively, it raised triable issues of material fact. It further contends there is insufficient evidence to support the attorney fees award. Court affirm the judgment.

This case is before us for a second time, after transfer from the California Supreme Court for reconsideration in light of that court's recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In our original opinion, we affirmed appellant Amber Jackson's convictions, but vacated her sentence on the ground that the trial court's imposition of the upper term violated Jackson's constitutional rights because the trial court relied on facts that were not found by a jury nor admitted by Jackson to impose the upper term, in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). On reconsideration, we conclude that under the principles announced by the Supreme Court in Black II, the trial court did not err in imposing the upper term sentence on count 2.

In two separate cases, Judy Elizabeth Bentley entered negotiated guilty pleas to possession of methamphetamine for sale in violation of Health and Safety Code section 11378 and to one count of forgery of an altered access card in violation of Penal Code section 484i, subdivision (b). As part of the plea bargain, Bentley was to be placed on probation for three years, serve a stipulated term of 365 days in jail and have other pending charges against her dismissed. The trial court sentenced Bentley in accordance with the terms of the plea bargain, but also imposed as a condition of probation that Bentley have no contact with Calvin Delathouwer, her codefendant in the forgery case. At the time of sentencing, Bentley was engaged to marry Delathouwer.
Bentley appeals, contending the no contact condition of probation order was an abuse of discretion and cannot withstand constitutional scrutiny.

A jury convicted Robert Martin Masiel of second degree murder (Pen. Code,[1] 187, subd. (a)) and found true allegations that he personally and intentionally discharged a firearm, proximately causing great bodily injury or death ( 12022.53, subd. (d)) and committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)).[2] After denying a new trial motion, the trial court sentenced Masiel to prison for indeterminate terms of 15 years to life for the murder and 25 years to life for use of a firearm, both consecutive to the determinate 10 year criminal street gang enhancement.
Masiel appeals, contending that there was insufficient evidence to support the jury's verdicts for the second degree murder and the street gang and firearm enhancements, that the trial court erred in failing to instruct the jury on misdemeanor-manslaughter based on brandishing a firearm, and that the 10 year street gang enhancement must be stricken. Court concur with the People's concession on this latter point (see People v. Lopez (2005) 34 Cal.4th 1002, 1011) and modify the sentence to delete the 10 year gang enhancement. In all other respects, Court affirm.

Magdalena M. appeals a judgment terminating her parental rights to her minor son Carlos M. under Welfare and Institutions Code section 366.26 (all further statutory references are to the Welfare and Institutions Code unless otherwise indicated). Magdalena challenges the sufficiency of the evidence to support the court's findings that Carlos was adoptable. Court affirm the judgment.

Appellant J.A. (father) is the presumed father of Alissa A. and Giovanni A. (the children). Fathers parental rights were terminated. On appeal, his sole claim is that the juvenile court and the San Bernardino County Department of Childrens Services (the department) failed to inquire of him whether he had any Indian ancestry for purposes of the Indian Child Welfare Act. (25 U.S.C. 1901 et seq.; ICWA.) Court affirm.

Joshua D., the biological father of J.D., contends that the juvenile court erred in denying him status as a presumed father and refusing to order the provision of reunification services. Court find no error and, accordingly, deny this petition for extraordinary writ relief.

Petitioner Colleen F. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (formerly rule 38.1(a)), challenging the juvenile courts order terminating reunification services as to her children Brandy, Jack, and Sherry (the children) and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues that there was a substantial probability the children would be returned to her care since she made substantive progress in her case plan. The Department of Public Social Services (the department) filed a letter on October 9, 2007, indicating its intention not to file a response to mothers writ petition. Court deny the writ petition.

In this case, we are asked to determine whether the superior court erred in concluding that the City of Coalinga and its former city manager, Richard Warne, (respondents) did not abuse their discretion in terminating City of Coalinga Police Officer Rene Mendoza (appellant). We conclude that there was sufficient and substantial evidence to sustain the superior courts conclusion that termination was the appropriate remedy. Thus, Court affirm the superior courts denial of a writ of mandamus.