CA Unpub Decisions

Federal bankruptcy law imposes an automatic stay on civil actions by or against debtors in state court while the bankruptcy case is pending. In this case, defendants had commenced a bankruptcy action before this state court suit was commenced by the plaintiffs. Also, while the bankruptcy proceeding was pending, defendants joint default was entered in violation of the automatic stay. After defendants bankruptcy case was dismissed, the state court default ripened into a default judgment. Court conclude that the violation of the automatic stay rendered the underlying default void, and that as a result, the ensuing judgment was also void. Accordingly, Court reverse the trial courts order denying defendants motion for relief from the default, and the resulting judgment.

Appellant Gary Duane Smith pled guilty to inflicting corporal injury upon a former cohabitant, a violation of Penal Code section 273.5, subdivision (a), and he admitted an allegation that he had suffered one prior strike. The trial court sentenced him to eight years in state prison. Appellants court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. Court have done so and find no issues that merit briefing.

Petitioner Michael Robert Hiscox filed a petition for a writ of habeas corpus on June 8, 2007, claiming, in part, that his detention is unlawful because he was illegally sentenced by the trial court to an aggravated term in violation of the principles laid out in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. Initially a jury had convicted petitioner on 11 counts of lewd and lascivious conduct with a child. Each count included a finding of substantial sexual conduct under Penal Code section 1203.066, subdivision (a)(8). The court had applied Penal Code section 667.61 and imposed 11 consecutive terms of 15 years to life (for a total of 165 years to life). (People v. Hiscox (2006) 136 Cal.App.4th 253, 256.)
On direct appeal this court affirmed petitioners conviction, but vacated that original sentence and remanded for sentencing under the law as it existed before November 30, 1994. (People v. Hiscox, supra, 136 Cal.App.4th at pp. 257, 262.) Petitioner filed a petition for review by the California Supreme Court, which denied the petition on May 17, 2006, and the remittitur issued on June 21, 2006. On May 4, 2006, before the Supreme Court acted, the superior court re sentenced petitioner. Accordingly, Court remand this case to the superior court for resentencing. Pursuant to stipulation, this opinion is final for all purposes immediately upon filing, and the clerk of the court immediately issue the remittitur herein.

Robert Matthews appeals from the judgment dismissing his action following the granting of respondents special motion to strike. Court find no error and affirm the order.

Father, Roosevelt Gaymon, appeals the trial courts order granting primary physical custody of his daughters to their mother, Christine Hunt. Father argues the court: (1) exceeded its jurisdiction by ordering modification of custody of the minor children when the only issue raised and responded to was visitation; (2) improperly modified custody using a best interest standard rather than a postjudgment change of circumstance standard; and (3) minors counsel went beyond the scope of her role by analyzing the case using a best interest standard. Court find no abuse of discretion and affirm the judgment.

Norman Louis Condiff appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder (Pen. Code 187, subd. (a); count one)[1]willful, deliberate and premeditated attempted murder ( 187, subd. (a)/664; count 2); conspiracy to commit murder ( 182, subd. (a)(1); count 3); dissuading witness by force or threat ( 136.1, subd. (c)(1); count 4); and conspiracy to dissuade witness by force or threat ( 136.1, subd. (c)(2); count 5); jury special circumstance findings as to count 1 that the murder was committed while lying in wait ( 190.2, subd. (a)(15)) and in furtherance of criminal street gang activities ( 190.2, subd. (a)(22)); jury findings that as to all counts the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and that during their commission Condiff personally and intentionally discharged a firearm ( 12022.53, subds. (d)&(e)(1)); and court findings that Condiff had suffered two strikes under the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The judgment is modified by striking two of the LWOP penalties from Condiffs sentence on count 1 and the $5,000 parole revocation fine, and, as modified, the judgment is affirmed.

A modification decision.

A jury found defendant and appellant Marcus Shipp guilty of murder. During jury selection, the prosecutor excused four African American jurors. On appeal, defendant contends that the prosecutor exercised peremptory challenges in violation of his equal protection rights. Defendant also contends that the prosecutor committed prejudicial misconduct during closing argument. Court disagree with both contentions, and Court therefore affirm the judgment.

Plaintiff Manoucher, or Mark, Rofeh appeals the trial court order granting the motion of defendant Canon Partnership to strike plaintiff's malicious prosecution complaint pursuant to Code of Civil Procedure section 425.16, the anti SLAPP statute, as well as the denial of a subsequent motion for reconsideration. Finding no error, Court affirm.

Ricardo Paramo appeals from the judgment entered following a jury trial in which he was convicted of two counts of grand theft of personal property, counts 2 and 3, in violation of Penal Code section 487, subdivision (a) and found to have suffered a prior conviction of a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and three prior convictions of a serious felony and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for five years, consisting, on count 2, of the middle term of two years, doubled pursuant to the Three Strikes law, plus one year for one of the prior prison term enhancements. On count 3, appellant was sentenced to a concurrent term of four years and one year for the prior prison term enhancement. The judgment is affirmed.

Defendant Antonio Villanueva Zaldana appeals from the denial of his motion to withdraw a guilty plea to a charge of assault with a firearm with great bodily injury. Defendant contends the trial court failed to adequately advise him about the immigration consequences of his plea, as required by Penal Code section 1016.5, and the court abused its discretion in denying his motion to withdraw his plea. Court find no error, and affirm.

Appellant Johnny Lee Sanchez was sentenced to three years in prison for felony possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1). Appellant appeals the trial courts denial of his motion to suppress evidence and the courts calculation of his presentence credits. Court affirm the denial of the suppression motion but modify the judgment to reflect the correct calculation of presentence credits.

Frederick Cacho (appellant) appeals from the judgment entered following his negotiated and certified plea of no contest to assault by means of force likely to produce great bodily injury and with a deadly weapon upon a police officer. (Pen. Code, 245, subd. (c).) Following the plea and before sentencing, the trial court denied appellants motion to set aside his plea. Pursuant to the terms of the negotiated plea, the trial court sentenced appellant to a five year term in state prison. Court appointed counsel to represent him on appeal. Court have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (Peoplev. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.

Mother is the mother of Neil D. (born July 1998), R. D. (born July 2000), and Nathan D. (born January 2002). Mother and the children, in a separate filing, appeal from the juvenile courts order requiring Mother to complete an in-patient drug treatment program as part of the disposition case plan. The father of the children, K.D. (Father), is not a party to this appeal. Court dismiss the childrens appeal for lack of standing and affirm the order.