CA Unpub Decisions

A jury convicted Uriah Frank Courtney of kidnap for sexual penetration (Pen. Code, 209, subd. (b)(1), 289), rape by foreign object with the use of force (id., 289, subd. (a)(1)), and false imprisonment by violence (id., 236, 237, subd. (a)). In separate proceedings, Courtney pleaded guilty to possession of more than $100,000 in proceeds from drug sales in exchange for the dismissal of two other related charges.[1] (Health & Saf. Code, 11370.6, subd. (a)). The trial court sentenced Courtney to a term of life in prison with the possibility of parole for the kidnapping for sexual penetration conviction, plus three years for the possession of drug proceeds conviction. The trial court sentenced Courtney to six years in prison for the rape by foreign object conviction and two years in prison for the false imprisonment by violence conviction, but stayed imposition of the sentences for these two convictions under Penal Code, section 654.
Courtney appeals, arguing there is insufficient evidence to support the asportation element of kidnapping for sexual penetration. Alternatively, Courtney argues the trial court should have stricken the false imprisonment by violence conviction because false imprisonment by violence is a lesser included offense of kidnapping for sexual penetration. Court agree with Courtney's latter argument and reverse the judgment as to the conviction for false imprisonment by violence. Court affirm the judgment in all other respects.

A modification decision.

Defendant, representing himself, pled guilty to failing to register as a sex offender in violation of Penal Code section 290, subdivision (a)(1)(B). In return, the remaining allegations were dismissed, and defendant was placed on three years of formal probation on various terms and conditions. Appellate counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. The judgment is affirmed.

In this matter we have reviewed the petition and the opposition thereto which we conclude adequately address the issues raised by the petition. We 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.)
Let a writ of mandate issue directing the Appellate Division of the Superior Court of Riverside County to vacate its order summarily denying the petition and to enter a new order granting the petition.

Willie Raul Harris-Velasquez[1]pled guilty to one count of receiving stolen property (Pen. Code, 496, subd. (a))[2]in exchange for (1) a mitigated sentence of 16 months in state prison, (2) dismissal of a second charge, (3) dismissal of a prior prison term enhancement, and (4) his codefendant being allowed to plead guilty to a misdemeanor charge. Prior to sentencing, Harris-Velasquez moved to withdraw his plea. The trial court denied the motion and sentenced Harris-Velasquez to the agreed-upon term of 16 months. Harris-Velasquez appeals the denial of his motion to withdraw his plea and the trial courts failure to obtain an adequate factual basis for the plea as required by section 1192.5. Court affirm the judgment.

Anthony Lopez was convicted of four counts of forcing his stepdaughter, J.S., to orally copulate him, in violation of Penal Code section 288a, subdivision (c). Lopez contends the trial court erred in denying his motion for a new trial. Court affirm the judgment.

In this medical malpractice case, defendant Gordon Mitts, M.D., moved for summary judgment on the grounds that his care and treatment of plaintiff, Arlene Smith, were within the standard of care and did not cause her alleged injuries. Additionally, defendant moved for summary judgment on the ground that the statute of limitation expired. The motion was supported by specific evidence submitted by defendant and referred to in his separate statement.[1] Plaintiffs opposition consisted solely of argument. No evidence was presented by plaintiff, and no objections were made to defendants evidence. The trial court granted defendants motion for summary judgment. Plaintiff appeals, contending the matters raised by defendants motion were triable issues of fact based on the contested pleadings alone. Court disagree. Because defendant made a prima facie showing of undisputed facts entitling him to judgment, the burden of producing evidence shifted to plaintiff and she could not rely on allegations in her complaint to create a triable issue of fact. Accordingly, the judgment is affirmed.

Daniel Aguba was found guilty of first degree murder with an enhancement for personally using a deadly weapon. The trial court sentenced him to 25 years to life for the murder conviction with a consecutive one-year term for the gun enhancement. The court awarded 784 days of presentence credit, and imposed a $10,000 restitution fine and a $10,000 parole revocation fine, which will be imposed only if Aguba fails to complete parole successfully. On appeal, Aguba contends the trial court made evidentiary errors that were prejudicial to him. He also contends the trial court miscalculated his presentence custody credit. We agree with his assertion that the trial court erroneously calculated his presentence custody credits and modify the judgment accordingly. In all other respects, the judgment is affirmed.

Defendant Marty Jay Lovan appeals from the judgment entered after a jury found him guilty of possession of methamphetamine for sale, transportation of methamphetamine, and possession of controlled substance paraphernalia. Defendant argues the judgment should be reversed because the trial court erroneously denied his pretrial motion to suppress evidence he contends was obtained by police following an unjustified detention. He also contends his conviction for transportation of methamphetamine was not supported by substantial evidence.
Court affirm the trial courts denial of defendants motion to suppress because the record shows the police initiated contact at issue was consensual and did not constitute a detention. Court reverse, however, defendants conviction for transportation of methamphetamine because substantial evidence did not support the finding defendant moved or transported methamphetamine from one location to another.

In an action against the City of Laguna Beach and other defendants (collectively the City), plaintiffs Eileen Garcia and George Riviere sought (1) a declaration that the City[s] expenditure of taxpayer funds and taxpayer-financed resources for the operation of [a day labor site] is unlawful, void, and a waste of taxpayer funds, and (2) injunctive relief restraining and preventing the City . . . from expending any further taxpayer funds or taxpayer-financed resources for the operation of the [day labor site]. Plaintiffs contend the Citys funding of the day labor site violates federal immigration law, alleging the City (1) refers unauthorized aliens for employment for a fee, (2) encourages them to reside in the United States, (3) provides them with prohibited public benefits, and (4) takes actions preempted by federal law. In a bench trial, the court entered judgment for defendants. Court affirm.

R.N., the alleged adoptive mother of 11-year-old S.N., appeals from the juvenile courts order denying her standing to participate further in the hearing freeing S.N. for adoption (Welf. & Inst. Code, 366.26 (.26 hearing)),[1] after R.N. failed to file a modification petition ( 388) or otherwise present evidence or argument to attain standing as the childs presumed mother. In denying an earlier writ petition filed by R.N., we upheld the juvenile courts order terminating the reunification period, setting the .26 hearing, and denying R.N. presumed mother status on the basis of unclean hands. (Rosie N. v. Superior Court (Jan. 31, 2008, G039079) [nonpub. opn.] (Rosie N.).) The unclean hands doctrine applied because, after lying about S.N.s biological parentage, R.N. claimed to be S.N.s mother via an informal adoption arrangement with S.N.s birth mother, but R.N. prevented Orange County Social Services Agency (SSA) from contacting the birth mother. We observed R.N. held the key to unwinding her predicament: she could disclose what she knew about [the birth mother]s whereabouts anytime. (Id. at p. 12.)
The order of the juvenile court terminating parental rights and freeing S.N. for adoption is affirmed.

Defendant Howard Lawrence Portis was charged in Santa Clara County with robbery in the second degree (Pen. Code, 211/212.5, subd. (c)).[1] It was further alleged that he was armed with a handgun ( 12022, subd. (a)(1)). Four prior strike convictions within the meaning of sections 667, subdivisions (b)-(i) and 1170.12 were also alleged, as well as two prior serious felony convictions within the meaning of section 667, subdivision (a) and three prison priors within the meaning of section 667.5, subdivision (b).
Defendant filed a timely notice of appeal, based upon the sentence or other matters occurring after the plea.

After a jury trial, Jeffrey Dewayne Washington was convicted of inflicting corporal injury on a cohabitant, assault by means of force likely to cause great bodily injury, and making criminal threats, as felony offenses, arising from an incident involving his ex-wife Joy Deibert. (Pen. Code,[1] 245, subd. (a)(1), 273.5, subd. (a), 422.) At a bench trial, the court found defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to an aggregate term of six years eight months, consisting of the middle term of three years for inflicting corporal injury on a cohabitant and consecutive terms of one year (one third the middle term) for assault, eight months (one third the middle term) for criminal threats, and one year for each prior prison term enhancement.
On appeal, defendant argues his assault conviction should be reversed because his trial counsel failed to object to the prosecutors request to amend the information to include that offense. He also contends that the trial court abused its discretion in imposing consecutive terms and in failing to treat the felony convictions as misdemeanors for sentencing purposes. Court conclude there is no merit to these arguments and shall affirm.

Lloyd W. Schloegel appeals from an order dismissing this action for his failure to bring it to trial within five years. (Code Civ. Proc., 583.310, 583.360.) Court affirm.