CA Unpub Decisions

In this action for marital dissolution, Brian J. Kelly requested that spousal support to his now ex-wife Donna J. Kelly be stepped down and reduced to zero as of January 1, 2017. The family court granted the request and, in a prior appeal, this court affirmed the order. (In re Marriage of Kelly (May 17, 2018, E066722) [nonpub. opn.] (Kelly I).)

Pursuant to a plea agreement, defendant and appellant Denise Louise Burns pled guilty to one count of receiving stolen property. (Pen. Code, § 496, subd. (a), count 2.) In exchange, a trial court dismissed a count of forgery. (§ 475, subd. (c), count 1.) Pursuant to the agreement, the court sentenced her to two years in state prison. Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.) Defendant filed a petition for resentencing, pursuant to section 1170.18. The trial court found her ineligible for relief and denied the petition. Defendant now appeals. We affirm.

While on parole, defendant and appellant George Trevino used another person’s credit card to buy a Costco membership and over $1,300 in merchandise. A jury found defendant guilty of identity theft and felony grand theft. In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction and four prior prison terms. After the trial court denied defendant’s motion to dismiss his prior strike conviction pursuant to section 1385, defendant was sentenced to a total term of eight years in state prison with 270 days of credit for time served as follows: the upper term of six years on count 1, plus consecutive one-year terms for two of the four prior prison term enhancements; sentence on count 2 was stayed pursuant to section 654; and the court struck two of the prior prison term enhancements.

Defendant and appellant Steven Michael Welch pled no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)). In return, the trial court suspended imposition of sentence, and placed defendant on formal probation for a period of three years on various terms and conditions of probation. Defendant subsequently violated the terms and conditions of his probation. After the trial court found defendant in violation of his probationary terms, the court revoked defendant’s probation and sentenced him to an upper term of three years in county prison with credit for time served. On appeal, defendant contends his trial counsel was ineffective for failing to object to the trial court’s imposition of the upper term. We find no error and affirm the judgment.

A.P., a minor, appeals from an order at the six-month review hearing granting her mother (Mother) an additional six months of reunification services. The San Diego County Health and Human Services Agency (the Agency) argues the appeal is moot. We agree the appeal is moot but exercise our discretion to address the merits and affirm the order.

In 2007, the City of San Diego (City) established a tourism marketing district (TMD) and approved a levy on lodging businesses with 70 rooms or more located within the district (the TMD assessment). The TMD assessment funds were used to market and promote tourism in San Diego. The City renewed the TMD assessment in 2012 and expanded the levy to all lodging businesses within the district, regardless of size. In 2016, the City amended the TMD assessment, returning it to its original scope so that it again applied only to lodging businesses with 70 or more rooms.

Plaintiff Azael Chavez filed an action against Rady Children's Hospital (Rady), several Rady physicians, and other defendants arising out of a report to police of suspected child abuse or neglect of his child that resulted in his conviction on two counts of felony child abuse. After Rady filed an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16, the trial court issued a tentative ruling granting that motion. However, before the court issued a final ruling on the motion, Chavez voluntarily dismissed his action without prejudice. Rady then filed a motion for an award of attorney fees and costs pursuant to section 425.16, subdivision (c)(1), and sanctions pursuant to section 128.5. The court issued an order granting that motion, awarding Rady attorney fees and costs and dismissing Chavez's action with prejudice, and then entered judgment for Rady. Chavez appeals that judgment.

Defendant Jeffrey Allen White pleaded guilty to voluntary manslaughter. On appeal he challenges a restitution order awarding a neighbor $1,717.61 for funeral expenses. He also contends the minute order must be corrected to reflect the trial court’s statement that defendant may request a hearing on his ability to pay. We affirm the judgment.

Defendant David Casas Perez appeals from the trial court’s postjudgment order denying his request for recall of sentence after finding him ineligible for relief under the Three Strikes Reform Act of 2012 (Proposition 36). (Pen. Code, § 1170.126, added by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Defendant’s appeal is limited to the determination on one of his convictions for a violation of section 273d. He argues the trial court’s judicial fact finding as to his eligibility for this conviction “deprived him both of his right to a determination of those facts beyond a reasonable doubt and his right to a jury determination of those facts, secured by both the United States Constitution and the Reform Act [Proposition 36].”
We affirm the trial court’s order.

Defendant David Casas Perez appeals from the trial court’s postjudgment order denying his request for recall of sentence after finding him ineligible for relief under the Three Strikes Reform Act of 2012 (Proposition 36). (Pen. Code, § 1170.126, added by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Defendant’s appeal is limited to the determination on one of his convictions for a violation of section 273d. He argues the trial court’s judicial fact finding as to his eligibility for this conviction “deprived him both of his right to a determination of those facts beyond a reasonable doubt and his right to a jury determination of those facts, secured by both the United States Constitution and the Reform Act [Proposition 36].”
We affirm the trial court’s order.

Defendant Daniel Kirk Long appeals from the trial court’s order granting his petition for resentencing pursuant to Penal Code section 1170.18 as to case No.
62-117731 and denying it as to case Nos. 62-125434 and 62-125470, and from the
court’s order denying his request for reconsideration of its ruling. He contends the trial court should have stricken prior prison term and on-bail enhancements in case Nos.
62-125434 and 62-125470 when resentencing him in case No. 62-117731 because the felonies underlying those enhancements previously had been reduced to misdemeanors pursuant to section 1170.18. Defendant also contends that section 1170.18 applies retroactively to those enhancements.

Defendant David Lynn Devoy appeals following conviction of possession of a gun (a Deutsche Werke 7.65 mm. semiautomatic gun) by a felon, possession of ammunition by a prohibited person, and misdemeanor resisting, delaying or obstructing a peace officer in the performance of his duties. The jury found defendant not guilty of possessing a Beretta 9 mm. handgun. The trial court placed defendant on formal probation for five years.
Defendant contends the trial court erred in denying his motion to suppress evidence and revising his proposed jury instruction on possession, and the prosecutor committed misconduct in closing argument. Defendant also asks us to review whether the trial court abused its discretion in finding no discoverable police records in response to his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Finding no grounds for reversal, we affirm the judgment.

A jury convicted defendants Robert Antonio Barnes and Alphonze Fitzhugh of first degree murder (count one), attempted murder (count two), and attempted robbery (count three). The jury found true the special circumstance that the murder was committed during the commission or attempted commission of a robbery. The jury also found true that Barnes personally and intentionally discharged a firearm in the commission of all three counts. The jury found not true that Fitzhugh personally and intentionally discharged a firearm. The People did not seek the death penalty. Consequently, as to the first count, defendants each received the mandatory lesser sentence for special circumstance murder, life imprisonment without parole. The court also sentenced Barnes to a consecutive upper term of nine years for count two and two consecutive 25 years to life sentences for the firearm enhancement as to counts one and two, for a total of 59 years to life plus life without the possibility of parole.

David Lee Waltz (appellant) was charged with possessing over two pounds of methamphetamine for sale (Health & Saf. Code, §§ 11378 & 11370.4, subd. (a); count 1), and unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 2). As to count 1, it was alleged, inter alia, that he had a prior serious and/or violent felony conviction under the “Three Strikes” law (§§ 667, subd. (d), 1170.12, subd. (b)), and that he had suffered five prior prison terms (§ 667.5, subd. (b)). Appellant pleaded no contest to count 1, admitted his strike prior and two of his prison priors. Count 2 was dismissed. He was sentenced to eight years in prison. The trial court ordered him to pay a restitution fine of $2,400 (§ 1202.4, subd. (b)) as well as various lesser fines to be collected by the Department of Corrections.