CA Unpub Decisions

Defendant David Joseph Rosa pled guilty to infliction of corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)) and dissuading a witness by force or threat (Pen. Code, 136.1, subd. (c)(1)). In exchange, five related counts and an enhancing allegation were dismissed. Imposition of sentence was suspended and defendant was placed on probation for 60 months on conditions including 365 days of incarceration with credit for 157 days. As a general term and condition of probation he was ordered: Do not leave the State of California. On appeal, defendant contends the imposition of a probation condition that absolutely bans interstate travel has no rational connection to his crime or future criminality and violates his constitutional rights to due process and to travel. Court shall modify the probation condition.

In 2008, defendant Orben Oliver Maniord pled no contest to committing a lewd and lascivious act on a five-year-old child, an offense he committed in 1996. The trial court dismissed the remaining counts of forcible rape and kidnapping with the purpose of rape. Subsequently, the court sentenced defendant to the upper term of eight years in prison. On appeal defendant contends: (1) the court committed an ex post facto violation when it applied the 2007 amended version of Penal Code section 1170 to a crime committed in 1996; (2) the imposition of the upper term was based on disputed facts and thereby violated his Fourteenth Amendment due process right to a fair sentencing hearing; and (3) he received ineffective assistance of counsel when his attorney failed to object to the imposition of the upper term on due process grounds. Disagreeing with these contentions, Court affirm the judgment.

A jury convicted Anthony Javon Martin of one count of felony vandalism (Pen. Code,[1] 594, subds. (a), (b)(1)) and two counts of assault with a deadly weapon on a peace officer ( 245, subd. (c)), arising out of an incident in which Martin threw bricks at two police cars. Martin admitted that he had suffered two prior prison priors, one prior serious felony, and one prior strike ( 667, subds. (a)(1), (b)-(i), 667.5, subd. (b), 1170.12), and the trial court sentenced Martin to 11 years in prison.

Defendant Bernard R. Hess appeals in propria persona a domestic violence restraining order. Plaintiff Su Ling Herron has not filed a respondent's brief. For reasons Court shall explain, we conclude that Hess has forfeited his claims on appeal. Accordingly, Court affirm the judgment.

Christina H. and Christopher D. appeal the dispositional judgment in the dependency case of their sons Christian D. and C.D. Christopher contends that the juvenile court erred by ordering him to participate in substance abuse treatment, removing the children from his custody, and ordering supervised visits. Christina contends that the court erred by denying her services to reunify with C.D. Court affirm.

David M. appeals an order of the juvenile court denying his request to have his minor daughter, Christine M., placed with him under Welfare and Institutions Code section 361.2, subdivision (a). David challenges the sufficiency of the evidence to support the court's findings that placing Christine with him would be detrimental to her. Court affirm the order.

C.T. appeals a judgment terminating her parental rights to her minor daughters, I.T. and D.H. (the minors), under Welfare and Institutions Code section 366.26. C.T. argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights. Court affirm the judgment.

A jury convicted defendant Robert Glen Daniel Ray of assault as a lesser included offense of the charged count of assault with a deadly weapon (count 1Pen. Code 240)[1]and criminal threats (count 2 422). In a bifurcated bench trial, the court considered whether defendant had suffered two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subd. (a)) and a prior prison allegation ( 667.5, subd. (b)). As to the alleged 1994 prior strike conviction, the People submitted exhibit No. 4, a packet containing certified documents in case No. FVA002489. Included in the packet was a copy of the felony complaint dated June 22, 1994, which alleged that [o]n or about May 23, 1994, . . . the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by ROBERT GLEN RAY, who did willfully and unlawfully commit an assault . . . with a deadly weapon, to wit, CLUB, and by means of force likely to produce great bodily injury. (Sic.)

Defendant and appellant Sean Deandre Lusk pleaded nolo contendere pursuant to a plea bargain; he appeals contending that his sentence violated the plea agreement. The People raise an additional issue that defendants sentence was unauthorized. Because the unauthorized sentence fundamentally altered the nature of the plea bargain, Court reverse the judgment and remand with directions to the trial court to permit defendant to withdraw his plea.

Defendant and appellant Andrew J. Rooks appeals following his guilty plea, because he claims he received ineffective assistance of counsel during plea negotiations. He also contends the trial court erroneously denied his motion to withdraw his guilty plea.

Appellant Tabatha S. Leddy (mother) appeals a postjudgment order of the family law court awarding primary legal custody of the minor child of the marriage to respondent William D. Leddy (father). The trial court found changed circumstances justified the modification of the custody orders. The trial court did not abuse its discretion in so finding. Court affirm.

Plaintiff and appellant Starlight Ridge Homeowners Association (the Association) is the owners association of a common interest development. Defendant and respondent Stephanie K. Hunter-Bloor (the homeowner) is the owner of a residential lot in the development. The Association claimed that the homeowner was responsible for upkeep and maintenance of a portion of a drainage channel (the V-ditch) crossing her lot. The homeowner contended that, instead, the Association was responsible for the costs of maintaining the section of the V-ditch crossing her property, because at that location the V-ditch section was wholly contained within a landscape maintenance area, and the Association was charged with the duty of maintaining the landscape maintenance area. The Association filed an action against the homeowner for injunctive and declaratory relief. Each party filed a motion for summary judgment. The trial court, interpreting the covenants, conditions and restrictions (CC&Rs), granted the homeowners summary judgment motion and entered judgment in favor of the homeowner. The Association has appealed, contending that the trial court erred in its interpretation of the CC&Rs. Court agree with the Association, and we therefore reverse the judgment.

Gregory Grantham (Grantham) and John Saba (Saba) appeal from an award of attorneys fees to San Jacinto Z, LLC (SJZ). The trial court awarded attorneys fees to SJZ after concluding that Grantham and Saba filed a frivolous anti-SLAPP motion (Code Civ. Proc., 425.16).[1] Grantham and Saba contend the award of attorneys fees was improper because (1) SJZ had previously requested attorneys fees, and therefore was collaterally estopped from renewing its motion; (2) the judge who ruled on the attorney fee award was not the same judicial officer who ruled on the anti-SLAPP motion; (3) the trial court did not consider the merits of the anti-SLAPP motion prior to awarding attorneys fees; (4) the trial court considered Grantham and Sabas conduct in a related case when awarding attorneys fees in the instant case; and (5) the amount of the fee award was not reasonable. Court affirm the judgment.

Appellant Robert G. Langley pled no contest to a violation of Penal Code[1]section 288.5, subdivision (a) (continuous sexual abuse of a child) and admitted he had one prior felony conviction (strike) within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At sentencing, the trial court granted appellants motion to dismiss his strike conviction. He was sentenced to the upper term of 16 years, granted time credits, and ordered to register as a sex offender and provide a blood sample for AIDS testing under section 1202.1. The court also ordered appellant to pay a restitution fine.
On appeal, appellant challenges the courts order that he provide blood for an AIDS test under section 1202.1. He contends that order should be stricken because the evidence was insufficient as a matter of law to prove that any bodily fluid capable of transmitting HIV has been transferred from [appellant] to the victim. ( 1202.1, subd. (e)(6)(A).) Respondent concedes that the record lacks evidentiary support for the courts order, but urges this court to remand the matter for a probable cause hearing at the election of the prosecutor pursuant to People v. Butler (2003) 31 Cal.4th 1119 (Butler).