CA Unpub Decisions

Defendant Justin Meskan appeals from judgment revoking his probation and sentencing him to two years in prison. He contends that the trial court violated his constitutional rights at the contested revocation hearing by admitting hearsay evidence regarding an alleged assault. We conclude that any error in this regard was harmless beyond a reasonable doubt because the judgment is independently supported by evidence that defendant violated his probation by failing to report to his probation officer. Accordingly, Court affirm.

Burney Tyrone Stewart appeals from a judgment entered after he pleaded no contest to uttering checks with insufficient funds. (Pen. Code, 476a, subd. (a).) He challenges a restitution fine that was imposed. Court agree the fine was imposed improperly and order the appropriate modification.

Defendant pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, 11378) and was placed on probation. After repeated violations of probation, he was eventually sentenced to two years in state prison. His attorney on appeal has asked this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. The judgment is affirmed.

Steven Michael Lopez (Lopez) appeals the judgment entered following a jury trial which resulted in his conviction of six counts of second degree robbery (Pen. Code, 211)[1] during the commission of each of which he personally used a firearm ( 12022.53, subd. (b)), and one count of being a felon in possession of a firearm ( 12021, subd. (a)(1)), and his admissions he had suffered two prior felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court sentenced Lopez to a total term of 71 years eight months to life in prison.
Lopez contends the prosecutions suppression of a police report and photographic lineup violated his constitutional rights to a fair trial, due process of law and to present a defense. He further contends the trial court erred in declining to strike both of his Three Strikes prior convictions. Court affirm the judgment.

Rioz contends the trial court abused its discretion by denying his self-representation request and his Romero motion, and his sentence constitutes cruel and unusual punishment. Court affirm.

Appellants complaint, filed in pro per, was for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The basis of the instant lawsuit is that Scharf and Salvato encouraged attorney Nassirzadeh and his client Forest to maliciously file three lawsuits against appellant in order to intimidate and threaten appellant from pursuing enforcement of his judgment rights in the United States Bankruptcy Court.
Appellant alleged he secured a large Bankruptcy Court judgment against respondents in 1999 and, in an alleged effort to stymie collection of that judgment, respondents sued appellant three (or possibly four) times in state court. The instant complaint is appellants response to the three lawsuits, which he claims were all filed maliciously, without probable cause, terminated in his favor, and caused him serious emotional distress.
Respondents motion pursuant to Code of Civil Procedure section 425.16 argued that the instant lawsuit by appellant is a SLAPP suit. The trial court agreed and granted the motion. In addition to finding that appellants opposition to the motion was untimely filed and could be disregarded, precluding appellant from meeting his burden of showing a likelihood of prevailing on his claims, the court concluded the result would be the same even if it were considered.
Subsequently, the court awarded attorney fees to respondents. Appellant appealed separately from both the order striking his complaint and the award of attorney fees. The appeals have been consolidated.

Appellant James Warner was previously the petitioner in a will contest, which was fully litigated, adversely decided against him, and unsuccessfully appealed by him. (See Estate of Bussard (Nov. 30, 2004, B169944) [nonpub. opn.]; hereinafter, Bussard I.) Thereafter, Warner filed new petitions in the trial court, arguing principally that an exhibit previously denied admission to probate (exhibit 2) was falsely interpreted, and seeking the same relief he unsuccessfully sought in Bussard I.
Court find, inter alia, that (1) the prior rejection of an alleged will by the court is conclusive of its invalidity and deprives the trial court of jurisdiction to entertain a belated new theory, and (2) even though Warner raises a new legal theory (i.e., integration of documents) relitigation of the same underlying claim is barred by res judicata. Thus, the trial court properly granted the demurrer by respondent James Bussard (hereinafter, Bussard).

This is the third lawsuit by a former general partner of two real estate investment partnerships against one of the limited partners and others. Because the only issue raised in the current action was conclusively decided against the former general partner in the first action, the trial court resolved this case by sustaining a demurrer without leave to amend and imposing sanctions for a frivolous lawsuit against the former general partner and his lawyer, both of whom appeal. Court affirm the judgment of dismissal and the sanction award, but deny the respondents motion for sanctions against the former general partner and its primary lawyer for a frivolous appeal.

On plaintiffs cause of action for partition the trial court ordered the sale of the real property owned by plaintiff and defendant as tenants in common, distributed the proceeds and awarded plaintiff his attorney fees and costs out of defendants share. Defendants appeal alleges the trial court erred in awarding one half the imputed rental value of the premises to plaintiff and in awarding plaintiff his attorney fees and costs from defendants share of the proceeds. Court affirm the judgment insofar as it credits plaintiff with one half the imputed rental value of the premises and reverse as to the award of attorney fees and costs. Court remand the cause to the trial court for an apportionment of both parties attorney fees and costs in proportion to their interest in the property.

Police officers found appellant in possession of a handgun that had been used in the shooting death of a 16-year-old boy. Appellant moved to suppress the handgun based upon a theory of illegal search and seizure. The motion was denied by the trial court. A jury convicted appellant of first degree murder (Pen. Code, 187, subd. (a)) and additionally found true that he committed the murder with a firearm ( 12022.53) and that he committed the murder for the benefit of a criminal street gang ( 186.22). Appellant contends that the trial court erred when it denied his motion to suppress ( 1538.5) and further contends that the statements made by him to police investigators should be suppressed as fruits of an illegal search.

This is an appeal from an order denying a motion for class certification. Because Court find the trial court used improper criteria, Court reverse.

Appellant S.D. appeals an order terminating his visitation with his daughter, A.D., and A.D.s half brother, J.E. He contends the juvenile court abused its discretion in terminating visitation because there was no substantial evidence visitation would be detrimental to either A.D. or J.E. Court disagree and affirm.

After attacking his cousins wife, defendant Jacinto Jose Flores entered negotiated pleas of guilty to rape (Pen. Code, 261, subd. (a)(2); unspecified section references that follow are to the Penal Code), burglary of a locked vehicle ( 459), making criminal threats ( 422), assault with intent to commit rape, sodomy, and oral copulation ( 220), and failing to register as a sex offender ( 290, subd. (a)(1)(A)). The court dismissed four other charges, including kidnapping to commit rape ( 209, subd. (b)(1)), and the parties agreed that a maximum sentence of 11 years might be imposed.

The court sentenced defendant to an aggregate prison term of 10 years. It selected the upper term of 8 years for rape, and added a consecutive term of 16 months for assault and a consecutive 8-month sentence for making criminal threats. (The sentences on the remaining counts are not at issue in this appeal.) Defendant contends that the court abused its discretion in imposing consecutive sentences on the assault and criminal threat convictions. Specifically, he contends that these sentences should have been stayed pursuant to section 654 or, alternatively, that concurrent sentences should have been imposed. Defendants claim is properly before us despite the lack of a certificate of probable cause. (People v. Shelton(2006) 37 Cal.4th 759, 769-770; People v. Buttram (2003) 30 Cal.4th 773, 787 [challenge to exercise of courts sentencing discretion within agreed maximum sentence does not require certificate of probable cause].) However, Court find it unpersuasive and therefore affirm the judgment.

Citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), defendant Frank Jason Uhler contends that the trial court violated his right to a jury trial by imposing the upper term on his conviction for assault on a police officer with a semi automatic firearm. (Pen. Code, 245, subd. (d)(2)). Court disagree and affirm the judgment.