CA Unpub Decisions

Having been charged with murder involving the personal use of a firearm (Pen. Code, SS 187, subd. (a), 12022.5, subd. (a)(1)), appellant Bertoldo Gonzales Rendon stands convicted, following a court trial, of voluntary manslaughter involving the personal use of a firearm (SS 192, subd. (a), 12022.5, subd. (a)(1)). Sentenced to a total term of six years in prison, he now appeals, raising numerous claims of error that present one central question: Was his motion for a continuance, made four days before the start of trial, erroneously denied? For the reasons that follow, court affirm.

Defendant appeals his conviction for first degree murder. Defendant contends that there was insufficient evidence to establish premeditation and deliberation. He also contends that the trial court erred in permitting a police detective to testify that the person who slit the throat of the murdered victim (i.e., Quevedo) had the mental state of trying to "finish her off." Finally, he complains that the trial court erred in ordering him to pay for the erection of a block fence as part of victim restitution. Court affirm.

On May 22, 2002, appellant, was granted sole custody of her daughter, Olivia, by the Kern County Superior Court. As part of its order, the court reserved jurisdiction over the child. The order further noted that the father, respondent Ron Vecente, "objects to paternity."
The order is affirmed.

On September 27, 2005, L.F. (mother) filed a petition in Kern County Superior Court to declare her minor children, F.C. and R.C., free from Freddie C., Jr.'s (father) parental custody and control (Fam. Code, SS 7822, 7825).
The judgment (order declaring minors free from parental custody and control) is reversed and the matter is remanded to the trial court for further proceedings as appropriate.

This is an appeal from judgment after defendant and appellant was sentenced to prison pursuant to a plea bargain. Defendant contends the sentence imposed by the trial court violated his Sixth and Fourteenth Amendments right to jury trial. There is no merit to defendant's claim; court affirm the judgment.

In this case, the court entered judgment, ex parte, at the request of plaintiff Bank of Orange County (BOC). BOC argued that a settlement agreement previously entered into between the parties provided for an ex parte entry of judgment in accord with a neutral appraiser's valuation of shares of stock owned by defendants. By contrast, defendants argued the appraiser's decision amounted to an arbitration pursuant to Code of Civil Procedure sections 1280 et seq. (the Arbitration Act), and that they were consequently entitled to a noticed hearing, in accordance with the requirements of those provisions, before that decision could be considered "final" for purposes of entering a judgment. Of course, only if the agreement were clear on its face in favor of plaintiff's "ex parte" interpretation could plaintiff prevail in an ex parte proceeding. Any ambiguity concerning whether the ex parte procedure was applicable should have been resolved only through a court hearing a regular, noticed hearing.
And court conclude the parties' agreement did not clearly provide for an ex parte entry of a judgment in the circumstances of this case. Instead, the ex parte judgment procedure outlined in the agreement was applicable only in the event that a share value was determined in an earlier phase of the agreement, by two party appraisers reaching a consensus regarding the fair price of the shares. Consequently, the court erred in doing so.

Defendant appeals from a judgment entered following his entry of pleas of nolo contendere and his admission of enhancement allegations. In consolidated proceedings, defendant pleaded no contest to 17 counts, namely, 12 counts of possession of a firearm by a felon (Pen. Code, S 12020, subd. (a)(1)), two counts of possession of ammunition by a felon (S 12316, subd. (b)), one count of perjury (S 118, subd. (a)), one count of conspiracy (SS 182, subd. (a)(1), 12021, subd. (a)), and one count of misdemeanor possession of marijuana (Health and Saf. Code, S 11357, subd. (c)). The court sentenced defendant to 22 years, eight months in prison; the sentence included an upper term sentence on the perjury conviction.
Defendant presents two challenges on appeal. First, he claims that the court erred in imposing an upper term sentence for the perjury conviction (in superior court case number 210852) in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. He claims that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence. Second, he contends that the sentence for the ammunition-possession conviction (count 6 in superior court case number CC238138) should have been stayed pursuant to section 654.
Court conclude, based upon a very recent controlling decision of United States Supreme Court (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)), that there was Blakely error. Court hold further that the sentence for the ammunition possession conviction did not violate section 654. Court therefore reverse the judgment and remand for resentencing in light of the holding in Cunningham.

Defendant appeals from the judgment entered after a jury found her guilty of possession of methamphetamine for sale. (Health and Saf. Code, S 11378.) She claims that her rights to a speedy trial and due process were violated by the prosecution's delay in bringing her to trial. She also challenges the imposition of certain fines and fees. Court find merit in her challenge to the probation revocation fee, and otherwise affirm the judgment.

A modification decision.

The sole contention on appeal is that the trial court's imposition of a $400 restitution fund fine was a violation of an alleged plea bargain. Court conclude that there was no plea bargain and the imposition of the fine did not violate the plea "understanding."

Following completion of a sentence for a rape conviction, defendant was found by a jury to be a sexually violent predator. He had three prior rape convictions, two in 1972 and one in 1989. At the commitment hearing, the prosecution read into the record preliminary hearing testimony from (1) the victim of a 1972 rape of which he was found guilty, (2) the victim of a 1972 rape to which he pled guilty, and (3) three other women who were the victims of rape around the same time and place as the first two. Defendant contends that admission of the transcript testimony of these victims was prejudicial error. In addition, he asserts that the prosecutor committed prejudicial misconduct during questioning and argument. Court affirm.

This appeal presents the question whether a lawsuit challenging a special assessment levied under the Municipal Improvement Act of 1913 (Sts. and Hy. Code, S 10000 et seq.) for failure to comply with Proposition 218 is subject to special procedural rules applicable to "validation actions." Appellants are property owners who sought to invalidate a special assessment imposed by respondent Town of Tiburon (Town) to cover the costs of moving overhead utility lines underground. Appellants claimed the special assessment violates Proposition 218 because, among other things, the amount of the assessment exceeds any "special benefits" conferred on their properties. The trial court dismissed the action because appellants failed to publish notice of the action and file proof of publication within 60 days after the filing of the complaint, a procedural requirement that must be satisfied to confer jurisdiction in a validation action filed by an interested person. (See Code Civ. Proc., S 863.)
Court conclude that appellants' lawsuit constitutes a validation action subject to the procedural requirements governing such actions contained in section 860 et seq. of the Code of Civil Procedure. Court also conclude the trial court did not abuse its discretion in finding no good cause for appellants' failure to publish notice of their action within the required time period. Accordingly, court affirm the judgment.

Husband appeals the order denying his motion to set aside the judgment that reinstated an earlier "judgment on reserved issues" in the marriage dissolution proceedings between him and Lisa Alfar (Wife). Husband contends the denial deprived him his right to due process.
The October 7, 2005 order denying Husband's motion to vacate the March 4, 2005 reinstated judgment on reserved issues is affirmed.

Plaintiffs/appellants Guardian Life Insurance Company and Berkshire Life Insurance Company of American (collectively, Guardian) appeal a summary judgment in favor of defendant/respondent law firm Thelen Reid and Priest (Thelen) to Guardian's action for professional negligence based on failure to file a timely appeal. Guardian contends there are triable issues of fact as to whether it would have prevailed in the appeal. Court affirm.