CA Unpub Decisions

John Cunningham appeals from a judgment convicting him of manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, and possessing hydriodic acid with intent to manufacture methamphetamine. He contends (1) the trial court erred in admitting prior offense evidence, (2) the evidence is insufficient to support the jury's verdicts, and (3) the trial court erred in denying his motion for new trial. He also asserts the trial court erred at the hearing on his motion for new trial when it denied his request to substitute new retained counsel and to continue the hearing. Court reject his arguments and affirm the judgment.

In this action for malicious prosecution brought by Emerald Bay Financial, Inc. (Emerald) and Financial Freedom Loans, Inc. (FFL) (together plaintiffs), Suppa, Trucchi and Henein, LLP (ST&H) and attorneys Jerry Michael Suppa, Teresa Trucchi, Gregory Highnote and Stephen Shaw (collectively attorney defendants), and their clients, Petar Stojsavljevic (Petar),[1]and Judith Stojsavljevic (Judith), appeal from an order denying their special motion to strike the complaint under Code of Civil Procedure[2]section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. They assert the court erred in denying their motion because (1) the action was not pursued "by or at the direction of" certain defendants; (2) there was probable cause to instigate and pursue the underlying action; (3) the underlying action was not initiated or pursued for a malicious purpose; (4) plaintiffs have not suffered any damages; and (5) plaintiffs did not produce sufficient evidence to negate Judith and Petar's advice of counsel affirmative defense. We conclude the court erred in not granting Petar and Judith's motion to strike as plaintiffs cannot show a reasonable probability of success on their malicious prosecution action against them as they cannot produce sufficient evidence to negate Judith and Petar's advice of counsel defense. Court also conclude the court did not err in denying the attorney defendants' motion to strike as plaintiffs have demonstrated a reasonable probability of success on their malicious prosecution claims directed against them.

Moises Ivan Velasco entered a negotiated guilty plea to vandalism causing less than $400 in property damage (Pen. Code, 594 (a)(b)(2)(A))[1]and admitted he committed the offense for the benefit of a criminal street gang ( 186.22, subd. (d)), which made the crime a felony. Under the plea term, the prosecution agreed to dismiss a second count of vandalism, to not oppose local time and to not oppose Velasco's sentence running concurrently to a sentence in another pending case. Velasco appeals, contending the trial court abused its discretion by denying his motion to reduce the offense to a misdemeanor.

A jury convicted George Barek of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and found he personally used a deadly weapon, to wit, a metal pipe within the meaning of section 1192.7, subdivision (c)(23). The judgment is affirmed.

R.N. appeals an order terminating her parental rights to her daughter, M.P. She contends the Agency did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.), and the court erred by finding the beneficial relationship exception to termination of parental rights and adoption did not apply. Court reverse the order and remand for the limited purpose of compliance with ICWA notice requirements.

N.E. seeks review of juvenile court orders denying family reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(2), (10) and (11), and setting a permanency plan selection and implementation hearing under section 366.26. Court deny the petition.

A juvenile court terminated the parental rights of appellant Paula L. (mother) as to her daughter, Destiny H. (the child). On appeal, mother claims: 1) there was insufficient evidence to support the finding that the child was likely to be adopted; and 2) the beneficial relationship exception applied. (Former Welf. & Inst. Code, 366.26, subd. (c)(1)(A).) Court affirm.

Nina M. (Mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26[1]as to her child Anthony O. (the minor) (born in 2006). Mother contends (1) the juvenile court erred in failing to comply with the notice provisions of the Indian Child Welfare Act (ICWA); and (2) the juvenile court abused its discretion when it denied Mother a hearing on her petition for modification of orders. Court reject these contentions and affirm the judgment.

A modification decision.

Following his conviction of receiving stolen property (Pen. Code,[1] 496, subd. (a)) and first degree burglary ( 459, 460, subd. (a)), appellant David William Remillard contends that the trial court erroneously denied his various requests for self-representation. For the reasons that follow, Court disagree and, accordingly, affirm.

On April 30, 2007, the Madera County District Attorney filed a consolidated information in superior court charging appellant Ruben Camillus Acuna and codefendants Nicholas Castillo and Paul Gonzales as follows: count 1possession of methamphetamine for sale (Health & Saf. Code, 11378) in an excess quantity (Pen. Code, 1203.073, subd. (b)(2)), and count 2possession of marijuana for sale (Health & Saf. Code, 11359).
The judgment is affirmed. The trial court is directed to recalculate the Penal Code section 672 fine, to amend the abstract of judgment accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities.

A jury convicted appellant, Ernesto Yanez Elizondo, of possession for sale of methamphetamine (count 1/Health & Saf. Code, 11378), transportation of methamphetamine (count 2/Health & Saf. Code, 11379, subd. (a)), and possession of a smoking device (count 3/Health & Saf. Code, 11364). In a separate proceeding, Elizondo admitted three prior prison term enhancements (Pen. Code, 667.5, subd. (b)), allegations that he had a prior conviction for possession of drugs for sale (Health & Saf. Code, 11370.2, subd. (a)), and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i)). On July 24, 2007, the court sentenced Elizondo to an aggregate 10-year term, the middle term of 3 years on count 2, doubled to 6 years because of his prior strike conviction, a 1-year prior conviction enhancement, three 1-year prior prison term enhancements, a stayed term on count 1, and credit for time served on count 3. On appeal, Elizondo contends the court abused its discretion when it admitted evidence of an uncharged offense. Court affirm.

On November 4, 2002, appellant Rita Nina Floyd pled guilty to two counts of identity theft in Tulare County Superior Court case number CRF9710 (case 9710). (Pen. Code, 530.5, subd. (a).)[1] On March 3, 2003, the court suspended imposition of sentence and placed appellant on probation for a period of five years. The court imposed a number of terms and conditions, including the condition that appellant obey all laws.
Appellant separately appealed the judgments in cases 9998 and 9710. Appeal number F054010 relates to case 9998. Appeal number F054011 relates to case 9710. In both appeals, appellant argues that the court lacked jurisdiction to sentence her pursuant to section 1203.2a. We are not persuaded. Appellant did not provide the court or the probation department with notice satisfying the requirements of section 1203.2a. As a result, the time limits contained in this section did not commence to run. In appeal number F054010, appellant argues that imposition of the aggravated term for count I in case 9998 prejudicially infringed her jury trial right. She is correct. Following and applying our Supreme Courts recent decision in People v. French (2008) 43 Cal.4th 36 (French), we conclude that imposition of the aggravated term infringed appellants jury trial right because this sentencing decision was based exclusively on offense-related factors that were not found true by a jury. The error is prejudicial because the record does not contain evidence demonstrating beyond a reasonable doubt that a jury unquestionably would have found at least one of these offense-based aggravating factors to be true. Therefore, appellant must be resentenced in case 9998. In case 9710, Court affirm.

Pursuant to a plea agreement, on September 19, 2007, appellant Valentin Munoz pled no contest to attempted carjacking (Pen. Code, 664, 215, subd. (a)),[1]and admitted enhancement allegations that he had served a prior prison term ( 667.5, subd. (b)) and that a principal in the instant offense was armed with a handgun ( 12022, subd. (a)(1)). On October 17, 2007, the court imposed a prison term of four and one-half years, consisting of two and one-half years on the substantive offense and one year on each of the enhancements.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing.