CA Unpub Decisions

Thomas L. appeals orders adjudicating his daughter, Tomi L., a dependent child of the juvenile court. Thomas contends there was insufficient evidence supporting the jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b). Thomas also contends the court's dispositional findings and orders were erroneous because a lesser alternative to dependency was available.
The orders are affirmed.

Michael Roddy, as Jury Commissioner for the Superior Court of San Diego County (Roddy), filed a petition for writ of mandate challenging the trial court's order enforcing the subpoenas duces tecum served on him by defendants Mark Jeffrey Brown, David Phommachanh, and Konrsavanh Donald Sirypangno (collectively Defendants)[1]requiring Roddy to disclose certain State of California Department of Motor Vehicles (DMV) information in his (Roddy's) possession in connection with Defendants' investigation into whether the jury selection process managed by Roddy complies with constitutional standards. Roddy contends the trial court erred because: (1) Code of Civil Procedure section 197[2]precludes his disclosure of that DMV information to anyone; (2) Defendants do not have a constitutional right to pretrial discovery of that DMV information; and (3) Defendants did not make the requisite showing for disclosure of that DMV information. Court conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation of their reasonable belief that underrepresentation of cognizable groups may be the result of improper jury selection practices. Court therefore grant the petition.

A jury convicted defendant of one count of attempted murder against Joseph Mooyman; three counts of assault with a firearm against Mooyman, Hilda Franson, and Susan Rios; and two counts of criminal threats against Franson and Rios. ( 664/187; 245, subd. (a)(2); 422.) The jury also found true various other special allegations and the court found true the alleged prior convictions. ( 667.5, subds. (b)-(i); 1107.1, subds. (a)-(d); 12022.5, subd. (a); 12022.53, subd. (d); 12022.7, subd. (a).) The court sentenced defendant to state prison for a determinate sentence of 31 years eight months, and a consecutive indeterminate term of 25 years to life. Court hold there was no evidence to support a voluntary manslaughter instruction; the evidence was sufficient that defendant made criminal threats to Franson and Rios; the aggravated and consecutive sentencing was proper under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] and section 12022.53 is not unconstitutional. Court affirm the judgment.

On September 8, 2005, a jury found Erik Russell Fredrickson (defendant) guilty of one count of assault with a deadly weapon in violation of Penal Code[1]section 245, subdivision (a)(1). In a bifurcated trial, the court found true the allegation that defendant had two prior felony convictions for which he had served prison time under section 667.5, subdivision (b). The trial court sentenced defendant to three years for the assault charge and one year each for the two prior felony convictions, totaling five years in state prison. Defendant appeals, contending (1) the evidence is insufficient to sustain the jurys verdict because defendant did not commit an assault and never used the vehicle as a deadly weapon, and (2) the trial court committed prejudicial error in failing to instruct the jury on the lawfulness of a condition in the crime of assault by conditional threats. Court reject both of these contentions.

Appellant Michael D. (Father) is appealing from the juvenile courts August 24, 2006, Welfare and Institutions Code section 366.26 order terminating his parental rights to Desiree D. and A.D. (Minors), the subjects of this appeal.
Minors were brought to the attention of the San Bernardino Department of Childrenss Services (DCS) in November 2004 when a San Bernardino County sheriffs deputy called the agency to respond to Minors mothers apartment in Victorville. The deputy, having arrived at the apartment to question Mother and her sister about a stabbing, discovered they were not at home. The sisters had left their five children (four of whom belonged to Mother) home alone all during the night and early morning hours, not an uncommon occurrence for Mother. The children ranged in age from one to seven years. Mother had an extensive drug history and at the time of this incident was on probation and enrolled in a Proposition 36 drug class. DCS detained Minors and was unable to locate Father, who also had a history of drug arrests. Court have completed that review and find no arguable issues. The judgment is affirmed.

Peter Munoz Garnica filed his appeal after pleading no contest to one charge of knowingly receiving stolen property. (Pen. Code,[1] 496, subd. (a).) He additionally pled no contest (in response to a separate complaint) to charges of grand theft auto. ( 487d.) On appeal, Garnica contends that the trial court committed Marsden error (People v. Marsden (1970) 2 Cal.3d 118) by failing to inquire into his complaint that defense counsel refused to file a motion to withdraw his guilty plea. Garnica argues that the courts Marsden inquiry was inadequate and as such the trial court erred in denying his motion for substitute counsel. Court find the courts Marsden inquiry sufficient and affirm the judgment.

On appeal, Olivas contends that the trial court abused its discretion when it refused on remand to strike a prior serious felony conviction and that the imposition of the indeterminate term of 25 years to life constitutes cruel and unusual punishment. He also argues that the trial court erred by failing to calculate Olivass actual time served prior to resentencing and that it improperly stayed rather than struck the section 667.5, subdivision (b), enhancement.
The judgment is modified as follows: The section 667.5, subdivision (b), enhancement is stricken and Olivas is awarded 740 days actual time credit. The trial court is directed to prepare a new abstract of judgment nunc pro tunc to July 11, 2006, reflecting the above changes. The abstract shall state that any prison behavior and work credits for the period of July 2, 2004 to July 11, 2006, are to be calculated by the Department of Corrections and Rehabilitation.

James Isaac Mesa appeals from a judgment entered after a jury convicted him of multiple criminal offenses. In our original unpublished opinion, filed on June 15, 2007, we affirmed appellants conviction, but reversed the upper term sentences that were imposed based on our interpretation of Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham).) On August 29, 2007, the California Supreme Court granted a petition for review and transferred the case to us for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of those cases, Court affirm appellants upper term sentences.

In previous litigation, competing billboard companies sued each other over a disputed billboard site. The company that prevailed in that litigation now sues its competitor for malicious prosecution in bringing the previous legal claim. A bench trial was held to determine whether the previous claim was brought with probable cause. The court found probable cause for instituting and maintaining the previous claim, and entered a defense judgment. Court affirm the judgment.

A jury convicted defendant David Desie Revello of petty theft with a prior and commercial burglary. Defendant contends that the prosecution committed misconduct and violated his due process rights by: (1) allowing certain evidence to be destroyed, and (2) arguing to the jury that this was not a Three Strikes case and that defendants prior convictions were irrelevant to sentencing. Court find no merit in these contentions and affirm the judgment.

Defendant Tery Ty Griffey appeals from a judgment convicting him of rape and assault and sentencing him to 10 years in prison. Griffey was originally convicted of these offenses in 1998. His conviction was set aside after the federal court issued a writ of habeas corpus directing the state to release defendant or retry him within 90 days. Defendants retrial, which resulted in the present conviction, commenced 70 days after the writ was issued. While defendant acknowledges that his retrial was timely under the federal court order, he contends nonetheless that his speedy trial rights were violated because the trial did not begin within the 60 day period required by Penal Code section 1382. In rejecting defendants plea for a reversal of his conviction, we need not accept the Attorney Generals contention that the federal court order superceded the state statute. Assuming that the time limit imposed by section 1382 was applicable, defendant has failed to establish that the violation was prejudicial and his conviction therefore affirmed.

Juan Bernal challenges the adequacy of the procedures used to determine his competency to stand trial. Court affirm.

Appellant Virginia Smith (Smith) challenges the grant of summary judgment in favor of respondents Edwin D. Hatter (her former accountant) and Hatter & Co., CPA. She claims that the trial court erred in denying her request to dismiss three causes of action without prejudice, and that it also erred in granting summary judgment as to the remaining cause of action (for breach of fiduciary duty). Court conclude that the trial court erred in denying appellants request to dismiss three causes of action without prejudice; however, summary judgment was appropriate as to appellants breach of fiduciary duty claim. Court therefore reverse in part and affirm in part.

Defendant Kwai Ho Lam appeals from the denial of his special motion to strike the complaint of plaintiffs Regina Birkner, Nyri Scanlon, Charles Birkner, and William Rogers Burton as a strategic lawsuit against public participation pursuant to Code of Civil Procedure section 425.16 (commonly known as the anti SLAPP statute). The trial court determined plaintiffs causes of action were not based upon petitioning activity protected by section 425.16. Court disagree, and remand the matter for further proceedings.