CA Unpub Decisions

jury convicted John Richard Croteau of five counts of residential burglary (Pen. Code, 459 & 460; counts 1, 2, 4, 5 & 6) and one count of receiving stolen property ( 496, subd. (a); count 7). The jury acquitted Croteau of the alleged count 3 residential burglary. (496, subd. (a).)
The court sentenced Croteau to an aggregate term of 12 years in prison, consisting of the upper term of six years on count 1, consecutive 16-month midterms on counts 2, 4, 5 and 6, and a consecutive eight month term on count 7.
Defendant appealed, contending the court abused its discretion in refusing to sever for trial the first residential burglary count from the other five residential burglary counts. He, therefore, asserted he was denied a fair trial because the joinder had a substantial influence on the jury's verdicts.
During the pendency of his appeal, Court asked the parties for supplemental briefing on the applicability of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) on the upper term imposed on count 1 and the consecutive sentences on the other counts in this case, and also on the legality of the parole revocation fine imposed under section 1202.45.
In an unpublished opinion filed November 19, 2004, this court reversed the upper term sentence on count 1 as well as the parole revocation fine and remanded for resentencing. In all other respects the trial court judgment was affirmed. The California Supreme Court granted review[3]and subsequently remanded the case to this court with directions to vacate our decision and reconsider the case in light of People v. Black (2005) 35 Cal.4th 1238, which held that the Blakely requirement of a jury trial for sentencing factors did not apply to California's determinate sentencing law (DSL). In an unpublished opinion filed October 18, 2005, we followed the holding in Black and affirmed the judgment as modified to correct an error in the parole revocation fine.
On February 20, 2007, the United States Supreme Court granted Croteau's petition for writ of certiorari, vacated the judgment in this case, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham), which determined that that portion of the DSL permitting a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 (Booker). The parties have submitted supplemental briefing pursuant to our request regarding the effect of the holding in Cunningham on Croteau's sentence. After further consideration, Court again affirm Croteau's convictions, reverse the parole revocation fine and his upper term sentence on count 1, and remand the matter for resentencing.

Appellant appeals from a judgment in favor of Seapoint Properties, LLC (Seapoint) awarding Seapoint breach of contract damages for unpaid rent, late charges and interest after Henrich vacated leased commercial premises. In part, the court found Henrich had exercised a lease renewal option for an additional 36-month term at a $1350 monthly rate, but breached the lease by abandoning the premises. On appeal, Henrich asks this court to hold as a matter of contract interpretation that his exercise of the option was not effective until the parties mutually agreed upon the fair market value rent, and as a consequence of the parties' failure to agree, he operated under a month to month tenancy. Challenging the trial court's denial of his new trial motion, Henrich further contends the court erred by excluding a statement from Seapoint's attorney pertaining to Seapoint's right to evict him from the premises. Court affirm the judgment.

The issue in this case is whether the court erred by entering judgment for the Poway Unified School District (the District) on its motion to enforce a sanctions order it obtained against Lindsey Stewart in an administrative proceeding. Court find no error and affirm the judgment.

This appeal arises from an order entered after final judgment in a marriage dissolution action involving appellant Mark B. and respondent Rachel B. According to the judgment entered in their dissolution action, the parties shared legal custody of their daughter, U., and Rachel had primary physical custody of U., while Mark was granted visitation set at 20 percent. Rachel filed an order to show cause (OSC) requesting a "move away" order so that she could relocate to Hawaii with U. After a hearing on the matter, the trial court granted Rachel's request to relocate with U. to Hawaii.
Mark appeals from the court's order allowing Rachel to relocate with U. to Hawaii. Mark contends that the trial court misunderstood and erroneously applied In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), to the circumstances of this case. He further contends that the trial court abused its discretion in concluding that allowing Rachel to relocate to Hawaii with U. would be in U.'s best interest.
Court conclude that although Mark met his burden to establish that the proposed move would result in some detriment to U., the trial court properly applied the law and weighed the evidence before it, and did not abuse its discretion in determining that it was in the child's best interest to grant the mother's request to allow her to relocate with U. to Hawaii.

Richard S. appeals a judgment of the juvenile court terminating his parental rights to his minor children Robert and Jacob (together the minors) under Welfare and Institutions Code section 366.26. Richard challenges the sufficiency of the evidence to support the court's finding the beneficial parent child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. Victoria S., the minors' mother, joins in Richard's argument and further contends the court abused its discretion by denying her request for a continuance. court affirm the judgment.

At age 16, plaintiff was diagnosed with a spinal tumor. Plaintiffs, Foss and his parents, appeal from the trial courts judgment in favor of defendants on plaintiffs claim for medical negligence and the related claim of fraud by concealment.
Defendants filed one motion for summary adjudication and two motions for summary judgment. After a considerable amount of procedural wrangling, the court granted all three motions and entered judgment in favor of defendants.
Plaintiffs appeal and Court affirm the judgment. After hearing on defendants motion for sanctions, Court deny the motion.

Defendant was charged with three crimes stemming from the death of his girlfriends youngest daughter, 25-month-old D.H. The charges consisted of murder (Pen. Code, 187, subd. (a); count 1); assault on a child under age eight, causing death by means of force likely to produce great bodily injury ( 273ab; count 2); and felony child abuse or endangerment ( 273a, subd. (a); count 3). A jury found defendant guilty as charged on all three counts. He was sentenced to 29 years to life in prison, and appeals.
Defendant contends the trial court prejudicially erred in failing to instruct the jury sua sponte on the defenses of accident and justification in all counts and on the lesser included offenses of manslaughter and voluntary manslaughter in count 1. He further claims that the trial court prejudicially erred in failing to clearly instruct the jury that felony endangerment as charged in count 3 requires criminal negligence. Court find each of these claims without merit.
Defendant further contends his four-year term on count 3 should have been stayed under section 654 as a matter of law. Court reject this claim. Lastly, defendant claims his abstract of judgment must be amended to reflect that he was convicted of second degree murder in count 1 and received a stayed term of 15 years to life rather than 25 years to life on count 1. Court agree with this claim; accordingly, we remand the matter to the trial court with directions to amend the abstract and affirm the judgment in all other respects.

Defendant appeals as an abuse of discretion the trial courts denial of his Romero motion to dismiss a prior strike conviction. Court affirm.

Defendant, while intoxicated, rammed his pickup truck four times into the back of a car occupied by two teenaged girls. A jury convicted defendant of one felony count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and two misdemeanor counts of driving under the influence. (Veh. Code, 23152.) The court sentenced defendant to a three-year term on count 1 and concurrent 180-day sentences on counts 2 and 3. On appeal, defendant makes four contentions: 1) the court failed to excuse a juror who may have been slightly acquainted with the victims family; 2) the court should have instructed the jury on the defenses theory of accident; 3) the prosecutor erred in her argument; and 4) section 654 required the court stay the sentence on count 3. As to the latter issue, the People concede count 3 should have been stayed and request the abstract of judgment be corrected accordingly. With this exception, Court reject defendants contentions and affirm the judgment.

On December 16, 2005, defendant George Arriola pled guilty to one count of possession of heroin, in violation of Health and Safety Code section 11350, subdivision (a). He also admitted seven prior nonstrike convictions, each of which exposed defendant to a one-year prison term. Two other drug charges were dismissed, and defendant was placed on probation with a referral to the Proposition 36 drug court. The petition for writ of habeas corpus (E041893) is denied as moot.

Pursuant to our directions in a prior appeal, a new sentencing hearing was held and defendant was resentenced. In this appeal, he contends that the court erred in denying his request to continue the sentencing hearing, and that a clerical error in the abstract of judgment must be corrected. Court reject defendants first contention and agree with the second.

Plaintiff appeals from the trial courts order granting defendant Judy Phillipsens motion to enforce a settlement agreement regarding their dispute over the ownership of real property in Palm Desert. The settlement agreement provided that Lopez would obtain title to the property after fulfilling various conditions, including paying off all liens and encumbrances. After executing the agreement, the parties discovered that the Franchise Tax Board had filed a lien against the property for Phillipsens personal tax debt of $12,782.77. When Lopez refused to pay the tax lien and thereby failed to close escrow within the allotted time provided under the agreement, Phillipsen filed an action to enforce the agreement, which would have extinguished any claim Lopez had in the property. On appeal, Lopez claims that the trial court erred in granting Phillipsens motion under Code of Civil Procedure section 664.6. He specifically argues that he was the de facto owner of the property and the agreement was unenforceable because there was a lack of mutuality of consent or a mistake of fact. While Court cannot make a determination as to whether Lopez was the de facto owner of the property, Court agree with Lopezs argument that the settlement agreement was void because of a unilateral mistake of fact.

Appellant (mother) appeals from an order terminating her parental rights to her three children: Robert, Jr., Monique, and Priscilla. The order was made at a hearing held pursuant to Welfare and Institutions Code section 366.26. Mother contends: (1) the court abused its discretion in denying her oral motion to continue the section 366.26 hearing; and (2) the court erred in failing to consider the so called beneficial relationship exception to adoption under section 366.26, subdivision (c)(1)(A). Court reject these contentions and affirm.

The trial court granted defendant motion for summary judgment. Plaintiff appeals. Finding no error, Court affirm.