CA Unpub Decisions

A modification decision,

These consolidated appeals are from orders granting summary judgment and denying motions for reconsideration and to amend the pleadings in a case involving five causes of action: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) trade libel; (4) respondeat superior; and (5) injunction harassment. Court affirm.

Jon Marc Dobrin as trustee of the Blackfield Revocable Living Trust (hereafter Blackfield) appeals from a judgment dismissing Robert Middagh from two consolidated construction defect lawsuits, and from a postjudgment order awarding contractual attorney fees to Middagh. Middagh cross appeals from the order awarding fees. Court affirm the judgment and order, finding that Middagh was properly dismissed due to Blackfields failure to diligently prosecute its claims against him, and that the trial court did not abuse its discretion in awarding fees to Middagh or in determining the amount of fees to be awarded.

Defendant appeals a judgment entered upon a jury verdict finding her guilty of taking and driving a stolen vehicle (Veh. Code 10851, subd. (a)) and driving without a license (id., 12500, subd. (a).) She contends that there is insufficient evidence to support the trial courts finding that she intended to deprive the owners of the car of title or possession; that the trial court erred in excluding a statement she made to a police officer; and that she was denied her constitutional right to effective assistance of counsel. Court affirm.

A modification decision.

Deanna I. (Deanna) appeals from a juvenile court dispositional order in a wardship proceeding under Welfare and Institutions Code section 602. She contends the juvenile court abused its discretion in ordering out of home placement instead of continued residence in her mothers home while on supervised probation. She also contends that the court erred because the placement was for an indefinite term. Court modify the dispositional order to state a maximum period of confinement (Welf. & Inst. Code, 726, subd. (c)) and, as so modified, affirm the order.

Defendant entered a negotiated plea of guilty to one count of soliciting an agent to commit murder (Pen. Code, 653f, subd. (a)), and was sentenced to the upper term of nine years in state prison. As the Attorney General concedes, the sentence was imposed upon defendant following proceedings that did not comply with the plea agreement. Court must therefore reverse the judgment and remand the case to the trial court.

Roy L. Stone and Robert Stone appeal following a court trial resulting in a judgment in favor of respondents Urbano and Elisa Gonzalez. The Gonzalezes do not speak or read English. To help their son, Ricardo Gonzalez (Ricardo), purchase a home from the Stones, the Gonzalezes pledged their home as partial security for a loan. Ricardo failed to make timely payments to the Stones, and the Stones initiated nonjudicial foreclosure proceedings. The Gonzalezes lost their home. The trial court awarded damages to the Gonzalezes after concluding that the loan transactions were invalid under Civil Code section 1632. Although section 1632 does not apply to the loan, the judgment is supported by another legal theory. Court affirm.

Appellant was convicted of possession of a firearm by a felon, illegal possession of an assault weapon and unlawful possession of ammunition. He contends the trial court violated Penal Code section 654 by sentencing him to a term of imprisonment on all three counts, rather than staying the sentence on two of them. Appellant also contends the trial court impermissibly imposed the upper term under Californias determinate sentencing law, using factors condemned by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Finally, appellant requests a review of the trial courts in camera determination that none of the items produced pursuant to appellants Pitchess motion was discoverable. Court review the sealed transcript of the in camera hearing, but otherwise reject appellants contentions and affirm the judgment.

Defendant appeals from judgment entered following a jury trial in which he was convicted of selling a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a)) and a court trial wherein he was found to have suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). Appellants prior conviction was stricken pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and he was sentenced to the middle term of four years. He contends there was insufficient evidence that he sold cocaine. For reasons stated in the opinion Court affirm the judgment.

Appellant filed a complaint for specific performance, breach of contract, quiet title, equitable estoppel, and declaratory relief against Saul Huerta, Nubia Huerta, Jose Raul Huerta, and Elsi A. Huerta (collectively referred to as respondents, individually referred to by their first names for the sake of clarity, with no disrespect intended) after they attempted to evict him from a home in which respondents held title. Respondents filed two demurrers which were sustained with leave to amend. The trial court sustained the demurrer to the second amended complaint without leave to amend and the action was dismissed. Court affirm the judgment (order of dismissal).

A jury convicted defendant Victor Espinoza of carjacking in violation of Penal Code section 215, subdivision (a), the second degree robbery of Rafael Rodriguez in violation of section 211, and street terrorism in violation of section 186.22, subdivision (a). As to the carjacking and robbery, the jury found defendant personally used a handgun as defined by section 12022.53, subdivision (b), and committed both offenses with the intent of benefiting a criminal street gang as defined in section 186.22, subdivision (b)(4). The trial court sentenced defendant to 25 years to life on the carjacking count, consisting of an indeterminate term of 15 years to life, based on the criminal street gang finding ( 186.22, subd. (b)(4)(B)), plus a 10 year determinate term for the firearm use finding. The trial court imposed an identical sentence for the robbery count, but stayed the sentence pursuant to section 654. For the substantive street terrorism conviction, the trial court imposed a concurrent two-year middle term sentence.
In his timely appeal, defendant contends there was constitutionally insufficient evidence to support the gang enhancement and imposition of a separate sentence for the street terrorism conviction was proscribed by section 654s bar against multiple punishments. Court reject those contentions and affirm.

Raymond Smith appeals from the order denying his petition for writ of error coram nobis seeking an order vacating his conviction of unlawful sexual intercourse with a minor. (Pen. Code, 261.5, subd. (c).)[1] Smith was charged initially with two counts of forcible rape while acting in concert (Pen. Code, 261, subd. (a)(2), 264.1) with codefendant Donald L. Brewer. After Smith pleaded no contest to a felony violation of unlawful sexual intercourse with a minor, the court placed him on probation for five years. The court later terminated probation and dismissed Smith's conviction pursuant to section "1203.4 or 1203.4A" and "reduced [his conviction] to a misdemeanor." The judgment (order denying petition for writ of error coram nobis) is affirmed.

Defendant pled no contest to one count of lewd act upon a child in violation of Penal Code section 288, subdivision (a). On January 18, 2006, defendant was placed on probation for a period of five years, with conditions including a term of 365 days in the county jail, participation in a one year plan for counseling, and an order to stay away from and not contact the victim, Steven P. Probation was formally revoked following a contested hearing. Defendant was sentenced to state prison for the midterm of six years. This timely appeal is taken from the judgment (order revoking probation).
Defendant raises the following issues on appeal: (1) the evidence was insufficient to support the finding of a probation violation; (2) the trial court abused its discretion in refusing to reinstate probation; (3) the trial court abused its discretion in sentencing defendant to the midterm of six years; (4) any failure to object to the use of subsequent events to impose the midterm or other sentencing errors was ineffective assistance of counsel; and (5) the $1,200 restitution and parole revocation fines must be reduced to $200.
Court conclude defendants challenges to the revocation of probation and the state prison sentence are without merit. However, the restitution fine and parole revocation fines must be reduced to $200. As modified, the judgment be affirmed.