CA Unpub Decisions

The prosecution presented the following evidence. On the afternoon of October 26, 2006, Tina Whaley entered a Mervyns store in Chico carrying a Kmart bag that appeared to contain a flat object. Whaley selected some sheets from a store shelf and then placed the sheets and the Kmart bag in a shopping cart. Whaley then pushed the shopping cart to a location near an exit, parked the cart there, and left the store. The judgment is affirmed.

Linda K. Gonzalez and her attorney, John J. Machado (respondents) sued Hector D. Hernandez (Hernandez) and his attorney, Judy R. Bailey (Bailey), for malicious prosecution. Bailey appeals from an order denying her special motions to strike brought under Code of Civil Procedure section 425.16, the "anti-SLAPP" statute. Bailey contends: (1) she did not maliciously prosecute the posttrial actions, which were not independent actions but rather subsidiary to the wrongful death action; and (2) respondents failed to show she lacked probable cause to prosecute an action pursuant to Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 (Ruttenberg). Court affirm.

Kerry Steffan entered a negotiated guilty plea to stalking while a temporary restraining order was in effect (Pen. Code, 646.9, subd. (b)) and evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)). The court sentenced him to three years eight months in prison: the three-year middle term for stalking and eight months (one-third middle term) for evading an officer. Steffan appeals. Court affirm.

Appellant, H.Z., appeals from orders terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughter, M.B. Appellant contends the juvenile court erred in failing to find that she came within the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)). Court disagree and will affirm.

Juan G. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, 602) after the juvenile court found true he committed first degree murder, street terrorism, attempted murder, and found true firearm and street terrorism allegations. He argues the court erroneously denied his motion to continue, insufficient evidence supports his convictions and the allegations, and the court erroneously committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJJ). None of his contentions have merit, and Court affirm the judgment.

A jury convicted defendant Vu Trowa Bui of five counts of attempted murder (Pen. Code, 664, 187, subd. (a); all further statutory references are to this code unless otherwise stated), two counts of assault with a firearm ( 245, subd. (a)(2)), two counts of street terrorism ( 186.22, subd. (a)), and three counts of assault with a semiautomatic weapon ( 245, subd.(b)). The jury also found true enhancements of personal discharge of a firearm ( 12022.53, subd. (c)) and personal use of a firearm ( 12022.5, subd. (a)), and that all but two of the counts were committed for the benefit of a street gang ( 186.22, subd. (b)(1)). Defendant was sentenced to life with the possibility of parole after 15 years, plus an additional 20 years. Defendant appeals on several grounds: there was insufficient corroboration of accomplice testimony, three of the attempted murder counts are barred by collateral estoppel, the court erred by failing to give two jury instructions, and his motion for new trial should have been granted because the prosecution failed to prove the identities of the victims. Court find no error and affirm.

Tamio Onishi appeals from an order denying his motion to set aside a 1998 default judgment entered against him. Onishi and Ricardo Ramirez appeal from the portion of the order filed on December 12, 2006, awarding attorneys fees to respondents Mary Murguia and Frank Murguia pursuant to Family Code section 271. They also appeal from the temporary order vacating and expunging the acknowledgment of satisfaction of judgment. On appeal, Onishi contends that the judgment entered against him is void on numerous grounds and that the trial court erred in denying his motion to set aside a default judgment. Onishi and Ramirez contend: (1) the order vacating the satisfaction of judgment is void; (2) the trial court erred in striking their testimony; and (3) the award of attorneys fees deprived them of due process of law. Court affirm the order, which was filed on December 12, 2006, denying the motion to set aside the 1998 default judgment and awarding attorneys fees. Court also dismiss the appeal from the temporary order, which was filed on April 3, 2006, vacating and expunging the acknowledgment of satisfaction of judgment.

This is an appeal from a probate order entered in April 2007, which concerns an irrevocable trust that was established following a marital dissolution. The appellant is Constance Anne Dudley, who is one of the settlors of the trust, a former co-trustee, and a trust beneficiary. The respondents on appeal are the three current co-trustees of the trust: Paul Laub, Dudleys ex-husband; Breck Tostevin, an accountant; and Andrew Swartz, an attorney.
For reasons explained below, Court consider only the April 2007 order here, which Court affirm.

Defendant pleaded no contest to three felonies involving S., his granddaughter: a lewd and lascivious act upon a child under 14 years of age; indecent exposure, with a prior conviction; and annoying or molesting a child, having been convicted of a specified prior conviction. (Pen. Code, 288, subd. (a), 314.1, 647.6, subd. (c)(2).)[1] Defendant also admitted that he had suffered three prior convictions for violations of section 288, subdivision (a). ( 667, subds. (b)-(i), 1170.12.) The prior convictions involved his daughter, S.s mother. The court sentenced defendant to an indeterminate term of 50 years to life, consecutive to five years. Defendants sole contention on appeal is that the trial court abused its discretion in denying his Romero motion to strike one or more of his prior convictions under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) Court affirm.

This appeal is taken from a probate order entered in October 2007, which concerns a trust established following a marital dissolution. The appellant is Constance Anne Dudley, who is one of the settlors of the trust, a former co-trustee, and a trust beneficiary. The respondents are the three current co-trustees of the trust: Paul Laub, Dudleys ex-husband; Breck Tostevin, an accountant; and Andrew Swartz, an attorney. The trust has been the subject of other litigation, including several proceedings in this court.
In this case, Dudley challenges the dismissal of her petition to remove respondents as trustees. We conclude that the trial court did not abuse its discretion in dismissing Dudleys petition, nor did it violate her due process rights. Court therefore affirm the order.

In June 2007, petitioner Constance Anne Dudley was found guilty of contempt for disobeying an April 2007 probate court order. That earlier order is the subject of a separate appeal (H031723), initiated in May 2007. In this proceeding, petitioner seeks extraordinary relief from the contempt finding. As Court explain, the trial court lacked jurisdiction to conduct contempt proceedings, because enforcement of the April 2007 order was stayed by petitioners appeal. For that reason, the contempt finding must be annulled. Court shall therefore grant the petition and order issuance of a writ of habeas corpus as requested by petitioner.

Pursuant to a negotiated disposition, appellant pleaded no contest to felony possession of cocaine base for sale and misdemeanor driving with a blood alcohol level of .08 or more. (Health & Saf. Code, 11351.5, Veh. Code, 23152, subd. (b).) The trial court sentenced appellant to four years in state prison. Shepard appeals from the judgment. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has referred this court to possible, but not arguable, issues. (Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396].) We advised appellant that he could submit any argument that he wanted us to consider and he has done so. Court affirm.

Defendant was convicted following a jury trial of second degree murder (Pen. Code, 187) and possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)), along with an enhancement for personal use and discharge of a firearm causing death (Pen. Code, 12022.5, subd. (a), 12022.53, subds. (b) & (d), 12022.7, subd. (a)). He was sentenced to an aggregate term of 40 years to life in state prison. In this appeal defendant objects to an instruction given by the trial court on his constitutional right not to testify. Court find that the instruction was erroneous, but was not prejudicial to defendant. Court therefore affirm the judgment as modified to correct the unauthorized imposition of a concurrent sentence of one-third of the middle term on count 2.

Mohamed C. Malam and Sara Bibi Malam (collectively plaintiffs) appeal from the judgment entered following a jury trial in favor of Toyota Motor Corporation (Toyota) and Toyota Motor Sales, U.S.A. (Toyota Sales) (collectively defendants). Judgment was entered on the special verdict in favor of defendants. The trial court denied plaintiffs motion for a new trial.