CA Unpub Decisions

For the third time, Charles Fluker appeals the sentence imposed by the trial court on his conviction for possession of cocaine in violation of Health and Safety section 11350, subdivision (a). We previously vacated the sentence and remanded for resentencing. The California Supreme Court directed this court to vacate our prior decision and to reconsider the cause in light of decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Because the imposition of the upper term sentence based entirely on facts neither admitted by Fluker nor found true by the jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), Court remanded the matter for resentencing consistent with Sandoval.

Jesus T. appeals from an order terminating his parental rights and finding his consent was not required for the adoption of his biological daughter, N.R. He contends the juvenile court lacked authority to terminate his parental rights. Court affirm.

Defendants Sergey Vinalyevic Shchirskiy and Andrey Larshin appeal following judgment in a case involving various offenses, including assault with a firearm (Pen. Code, 245; undesignated section references are to the Penal Code), robbery ( 211), and extortion by threat ( 519,[1]520,[2]524[3]). Larshin claims insufficiency of the evidence and sentencing error. Shchirskiy challenges a $1,500 restitution order. In an unpublished opinion filed on December 29, 2006, we reversed the $1,500 restitution order against Shchirskiy but otherwise affirmed the judgments as to both defendants. Having reconsidered Larshins sentencing issue, we make no change in our disposition. Court shall reverse the $1,500 restitution order against Shchirskiy, but Court shall otherwise affirm the judgments.

Defendant Arthur Guiterrez Gonzales appeals from an order extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code[1]section 2970 to April 22, 2008.[2] Defendant contends the trial court abused its discretion by failing to dismiss the commitment petition on the ground it was filed late, in violation of the statutory time frame and too late to permit a trial to take place without holding him past his scheduled release date, and thus in violation of due process. Court agree and reverse.

Defendant Guadalupe Llanes appeals from an order denying his motion to set aside a judgment of paternity as untimely. He contends his motion was timely. Alternatively, he argues plaintiff County of Sacramento (County) should be estopped from asserting the motion is untimely because the California Department of Child Support Services (CDCSS) posted letters on its website stating that previously established fathers, such as defendant, had until December 31, 2006, to file a motion to set aside a judgment of paternity, and he relied on those letters in filing his motion on December 29, 2006. Defendant also seeks to challenge a finding by the child support commissioner that he was estopped from obtaining the relief he requests . . . .
As Court explain, the only issue that is properly before us is whether the trial court erred in determining defendants motion to aside a judgment of paternity was untimely. Finding no error, Court affirm the trial courts order.

Loretta Demele (daughter) appeals from a probate court order denying her petition for a conservatorship of the person and estate of her mother, Wilma Jo Radulovich (mother) under Probate Code section 1801. (Undesignated statutory references are to the Probate Code; 1301, subd. (a) [denial of conservatorship is appealable].) Daughter contends uncontradicted evidence demonstrated the need for a conservatorship. Court affirm the judgment (order).

Defendant Alexander Fondril Hardley pled guilty to forcible digital penetration of My. and to digital penetration of Mi., both of whom were his younger cousins. The court sentenced him to 11 years in prison. On appeal, defendant contends the court erred in imposing the fully consecutive sentence because it failed to articulate the reason for its sentencing choice, and his attorney was ineffective for failing to object. Finding no error, Court affirm the judgment.

Defendant Kevin Terrell Burton appeals from a final judgment following a jury trial in which he was convicted of one count of possessing a controlled substance (cocaine base). After finding true the allegations that Burton had suffered five prior serious or violent felony convictions, the trial court sentenced Burton to an indeterminate term of 25 years to life in state prison. Burton contends that the trial court abused its discretion in refusing to dismiss any or all of his prior strike convictions. He further contends that his sentence constitutes cruel and unusual punishment. Finally, Burton asserts that the trial court erroneously imposed and stayed his prior prison term enhancements, rather than striking them. Court conclude that the trial court did not abuse its discretion in denying Burton's motion to dismiss his prior strikes, and further conclude that Burton's sentence does not violate the California or United States Constitutions' prohibitions against cruel and/or unusual punishment. However, as the People concede, the trial court erred in not striking Burton's prior prison term enhancements. Court therefore modify the judgment by striking the prior prison term enhancements, and affirm the judgment as so modified.

Defendant and appellant Daybreak Group, Inc. (Daybreak) appeals from a summary judgment in favor of plaintiff and respondent Cecelia Lewis. Lewis is the owner of a residence (the property) located in Temecula. Lewis purchased the property from an entity which had in turn purchased it at a trustees sale. Daybreak is the current holder of a $100,000 note purported to be secured by a trust deed on a 2.28‑acre portion of the property, which it received by assignment from the original holders of the trust deed. This action arose when Lewis discovered that Daybreak intended to hold a trustees sale to sell the 2.28‑acre portion of the property to satisfy the $100,000 trust deed. Lewis filed the instant action for declaratory relief, seeking a determination by the trial court that any lien supporting the deed of trust had been distinguished by a 2005 bankruptcy judgment quieting title to the property. The trial court granted Lewiss motion for summary judgment. The judgment and award of attorney fees are affirmed.

Defendants challenge the probate courts ruling granting plaintiffs safe harbor application filed under Probate Code section 21320.[1] The court determined that plaintiffs proposed petition to remove the trustee (Petition) would not constitute a contest within the terms of the no contest clauses contained in the applicable trust documents. Defendants argue: (1) the court incorrectly determined that the no contest clauses violate California common law and public policy; and (2) the order is overbroad and subject to reversal because the court based its order, in part, on no contest clauses that were not before it. As discussed below, we conclude that the trial court erred in granting the safe harbor application. This is because it is California common law that no contest clauses may be enforced against beneficiaries who petition the courts to remove a trustee only if the grounds for removal are frivolous. Further, such a determination normally cannot be made in a section 21320 proceeding because it would require both a factual inquiry and a determination of the petitions merits, which are beyond the scope of a section 21320 proceeding.

HMY New Yacht Sales, Inc. and HMY of the Carolinas, Inc. (HMY) appeal from the trial courts order denying its motion to compel arbitration. (Code Civ. Proc., 1281.2, 1294.) HMY claims the trial court erred in finding that HMY waived its right to arbitrate its dispute with Brunswick Corporation (Brunswick). Court affirm the order. The order is affirmed.

Following a joint trial with codefendant Joni LaFlamme, defendant Thomas Donald Benn was convicted of possessing methamphetamine for sale and of possessing drug paraphernalia. Defendant argues on appeal the trial court erred by (1) denying his motion to suppress evidence recovered from the search of his travel trailer, (2) admitting into evidence hearsay statements made by callers during intercepted cell phone calls, (3) failing to limit to codefendant the evidence recovered from the house, and (4) failing to give defendant two more days of credits for time served. Defendant further argues that defense counsel was ineffective because he failed to object to the phone call statements on Sixth Amendment grounds. Court affirm.

A modification decision.

Victoria Dupont sued her neighbors, Dean and Susan Leffler, for damages caused by the construction of their second story addition, which allegedly obstructed Duponts ocean view. Dupont recovered $2000 for damage to her side yard. The Lefflers filed a motion for attorney fees, claiming they were the prevailing parties. The trial court found there was no prevailing party and denied their motion. On the Lefflers appeal from the postjudgment order denying attorney fees, Court affirm.