CA Unpub Decisions

Defendant entered guilty pleas to various counts but contends on appeal that the trial court erred in imposing the middle term sentences with respect to some of those counts. The People concede that the abstract of judgment should be corrected. We affirm the judgment but order that the abstract of judgment be corrected.

In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. court have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

A few months after he refinanced his home loan, plaintiff Doyle Warkentin received a letter from Countrywide Home Loans, Inc. (Countrywide) notifying him that Countrywide had assumed the servicing of his home loan. The letter advised plaintiff of his rights [u]nder the Fair Debt Collections Practices Act, and disclosed, among other things, that plaintiff had 30 days in which to dispute the amount of the debt. After the 30-day period expired, Countrywide sent a notice of default to plaintiff because he was delinquent on his loan payments. Plaintiff responded to the notice of default by certified letter disputing that he had a contractual obligation to pay Countrywide and demanding verification of any such obligation. When Countrywide failed to address the issues raised in plaintiffs letter and continued to seek foreclosure, plaintiff filed his complaint for violation of the Fair Debt Collection Practices Act (15 U.S.C. 1692g, hereafter FDCPA) and, after amendment thereof, for violation of the Real Estate Settlement Procedures Act (12 U.S.C. 2601, hereafter RESPA). Following several rounds of demurrers, the trial court finally sustained Countrywides demurrer to the plaintiffs third amended complaint without leave to amend. Upon entry of judgment of dismissal, the trial court granted Countrywides motion for recovery of attorney fees pursuant to contract. Plaintiff appeals from the judgment of dismissal and the order granting attorney fees on the ground the trial court should not have sustained the demurrer without leave to amend. Court agree and accordingly reverse the judgment, vacate the attorney fees order, and instruct the trial court to grant leave to amend as to the RESPA cause of action.

Appellant Sergio Aguilera Garza challenges his sentence on the ground that imposition of the upper term violated the principles set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) regarding the constitutional right to a jury trial. Court reject appellants challenge and affirm the judgment.

A jury convicted appellant, Jerry Diaz Richer, Jr., of first degree burglary (count I/Pen. Code, 460, subd. (a)),[1]making criminal threats (count II/ 422), misdemeanor vandalism (IV/ 594, subd. (b)(1)), misdemeanor battery on a cohabitant (count V/ 243, subd. (e)(1)), and misdemeanor cruelty to a child (count VI/ 273a, subd. (a)).[2] In a separate proceeding the court found true a prior prison term enhancement ( 667.5, subd. (b)), a serious felony enhancement ( 667, subd. (a)), and allegations that Richer had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).
On appeal, Richer contends the court violated section 654s prohibition against multiple punishment when it imposed a consecutive term on his criminal threats conviction. Court affirm.

Appellant Ralph Zapata Ramos contends the trial court erred when it imposed two five-year enhancements pursuant to Penal Code section 667, subdivision (a)(1) because the prior underlying charges were not brought and tried separately. The People agree. Court reverse and remand.

A.C.L. (hereafter appellant), the mother of the five children who are the subject of these dependency proceedings, appeals from the orders setting a hearing to consider termination of parental rights. She contends that the Kern County Department of Human Services (the Department) failed to give sufficient notice to the Bureau of Indian Affairs and the Pascua Yaqui Tribe, and that the juvenile court erroneously found compliance with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1900 et. seq.). Court agree to the extent that the matter must be conditionally reversed and remanded to the juvenile court for further proceedings as outlined in this opinion.

On September 10, 2007, the Kern County District Attorney filed an information in superior court charging appellant Javier Contreras with infliction of corporal injury resulting in traumatic injury upon his spouse (count 1; Pen. Code, 273.5) and assault with a deadly weapon, a skateboard (count 2; Pen. Code, 245, subd. (a)(1)). A jury returned guilty verdicts on both counts. With respect to count 1, the jury found Contreras guilty of battery against a spouse (Pen. Code, 243, subd. (e)(1)), a lesser-included offense. The judgment is affirmed.

On February 14, 2008, after his motion to suppress was denied, appellant, Michael William Deal, pled no contest to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)). On that same date, the court sentenced him to time served and placed him on probation for three years. On appeal, Deal contends the court abused its discretion when it denied his motion to suppress. Court affirm.

On March 11, 2008, appellant Danny Ewalt was ordered recommitted as a sexually violent predator. He contends the recommitment order should be reversed because (1) the trial court failed sua sponte to instruct the jury on the issue of serious difficulty in controlling sexual behavior, and (2) an indefinite commitment is unconstitutional. Court affirm the judgment.

Appellant, L.G., appeals from the juvenile courts order terminating her parental rights to G.R. pursuant to section 366.26. Appellant contends the court erred in failing to apply the parent/child relationship exception rather than accepting adoption as the final plan for G.R. Court will affirm the juvenile courts judgment.

On July 24, 2004, the 15-year-old victim and a friend went to a party in Selma. After a while, they went to a second party where the victim met appellant, Giovan Barrera. Barrera provided the victim with beer and hard liquor at the party. At one point, he showed her a cup that he said contained a date rape drug and asked her to take a drink. She initially refused but eventually drank the contents of the cup. When the victim and her friend were going to return to the first party, Barrera offered her a ride. The victim got into his car, had second thoughts, and left with her friend instead.

On April 9, 2008, Cynthia Donez was working security at the Tachi Palace Casino. At approximately 2:45 a.m., she observed appellant, Enrique Navarro, Jr., and Alberto Montejano through a surveillance camera in an elevator appear to exchange cash for drugs. Kings County Sheriff Deputy Benjamin Moore was dispatched to the casino and contacted Montejano. He subsequently found a glass pipe and a small quantity of methamphetamine on Montejanos person. Navarro was contacted by Deputy Scott Ward. During a consensual search, Ward found a glass pipe and a small amount of methamphetamine on Navarros person. The judgment is affirmed.

Donnell English (appellant) appeals from the denial of his petition for writ of error coram nobis. We appointed counsel to represent him on appeal. Counsel filed a brief that set forth the facts and procedural history of the case. Counsel presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. We granted appellant 30 days to file a supplemental brief. In his responsive filings, appellant contends he received ineffective assistance of counsel. He asserts his midtrial guilty plea to three counts of child molestation was based on his attorneys concern for the well-being of one of the child victims and a broken promise to vigorously protect his interests during sentencing proceedings. Based on our independent review of the record, counsels brief, and appellants supplemental brief, we conclude the trial court correctly denied appellants petition for writ of error coram nobis and therefore affirm the judgment.