CA Unpub Decisions

Dandre Green appeals from a judgment following his plea of nolo contendere and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplement brief with the court. No supplemental brief has been received. Upon independent review of the record, Court conclude that no arguable issues are presented for review and affirm the judgment.

Plaintiff and appellant Monticello Insurance Company (Monticello) appeals a stipulated judgment in favor of defendant and respondent Essex Insurance Company (Essex) in an action for equitable contribution.

In this action, Monticello seeks contribution from Essex for defense costs to defend mutual insured Blumenfeld Construction Company (Blumenfeld), a general contractor, against construction defect claims in an underlying action. Blumenfeld was a named insured under the Monticello policy and an additional insured under an Essex policy. Dana Drywall, Blumenfelds drywall subcontractor, was the named insured under the Essex policy. The judgment is affirmed.

This is the third appeal in these consolidated and related actions. Pursuant to our instructions in the previous appeal (Korean Philadelphia Presbyterian Church v. California Presbytery (Sept. 10, 2003, B151945, B158402) [nonpub. opn.] (KPPC II)), the trial court conducted further proceedings after remand and entered judgment on August 17, 2006. Court affirm that judgment.

Brigitte DeLuise, attorney Steven Zelig and his firm Zelig & Associates appeal the denial of their two special motions to strike[1]Dom DeLuises action for malicious prosecution against them. Defendants principally contend that Dom DeLuise cannot establish a reasonable probability that he will prevail on the merits. Court affirm.

Defendant Eddie Lee Harris appeals from a judgment of conviction entered after a jury found him guilty of shooting at an occupied vehicle (Pen. Code, 246,[1]count 1), shooting at an inhabited dwelling ( 246, count 2), and permitting someone to shoot from a vehicle ( 12034, subd. (b), count 3). The trial court found true the allegations defendant suffered a prior conviction of a serious felony ( 667, subds. (a), (b)-(i), 1170.12). It sentenced defendant to 15 years in state prison: 10 years on count 1 (double the middle term sentence of 5 years as a second strike), and five years for the prior conviction. It stayed sentence on counts 2 and 3 pursuant to section 654.
On appeal, defendant contends there is insufficient evidence to establish that his federal bank robbery conviction was a serious felony within the meaning of sections 667 and 1170.12. He also claims the trial court erroneously failed to instruct as to a lesser included offense on count 2, erroneously denied his motion to exclude identification evidence, and failed to rule on his new trial motion. We agree that the evidence is insufficient to support the finding defendant previously was convicted of a serious felony. Court reject the remainder of defendants contentions.

Geraldine Carr appeals after the probate court ruled against her will contest and ordered a lost will admitted to probate.[1] Geraldine also appeals from orders regarding the taking of her deposition and directing her attorney of record, Ian Noel, to pay $3,936 in monetary sanctions. Court affirm the order admitting the lost will to probate. Court also affirm the deposition and sanctions orders in all respects.

Oswaldo Rivera appeals from a judgment following his conviction, after jury trial, of carjacking and attempted second degree robbery. (Pen. Code, 215, subd. (a); 664, 211.)[1] The trial court selected a five-year midterm sentence for each crime and stayed the attempted robbery sentence pursuant to section 654. The court ordered appellant to pay attorney fees in the amount of $268 ( 987.8); a $20 court security assessment ( 1465.8, subd. (a)(1)); a $200 restitution fine ( 1202.4, subd. (b)); and a parole restitution fine which the court stayed, with the stay to become permanent upon the successful completion of parole ( 1202.45). Appellant contends that the court violated his constitutional rights by excluding evidence and ordering him to pay attorney fees. Court strike the attorney fees order because there is not evidence to rebut the statutory presumption that appellant lacks the financial ability to pay. ( 987.8, subd. (g)(2)(B).) As modified, Court affirm the judgment.

Appellant Kevin B. appeals from an order of the juvenile court declaring him to be a ward of the court (Welf. & Inst. Code, 602) and ordering camp placement entered after the court sustained a petition as to count 1, criminal threats (Pen. Code, 422) and count 3, cutting a utility line (Pen. Code, 591). The juvenile court did not sustain the petition as to count 2, criminal threats. On appeal, appellant contends that remand is required because the juvenile court failed to declare count 1 a felony or a misdemeanor. The People agree, and Court remand for the juvenile court to declare the offense to be a felony or a misdemeanor.

Defendant, Daniel Classon, appeals following his nolo contendere plea for failing to register as a sex offender. (Pen. Code, 290, subd. (b).) On February 25, 2008, a no bail bench warrant was issued for defendants arrest who was placed on probation. We issued an order to show cause as to whether defendants appeal should be dismissed because of his fugitive status. Because the uncontradicted evidence demonstrates defendant is currently a fugitive, his appeal should be dismissed. (People v. Redinger (1880) 55 Cal. 290, 299; People v. Kang (2003) 107 Cal.App.4th 43, 52; People v. Buffalo (1975) 49 Cal.App.3d 838, 839.) Court need not address other issues concerning our authority to address the merits of defendants challenge to the validity of his nolo contendere plea. (In re Chavez (2003) 30 Cal.4th 643, 649; People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.)
The appeal is dismissed.

Osvaldo Solano appeals from the judgment following his entry of a guilty plea to four counts of child abuse (Pen. Code, 273a, subd. (a)) and one count of manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)),[1] and his admission of allegations of excess weight ( 11379.8, subd. (a)(2)), manufacturing in a structure with children present ( 11379.7, subd. (a)), and a prior conviction of possessing methamphetamine for sale ( 11370.2, subd. (c), 11378; Pen. Code, 1203.073, subd. (b)(2)). The court dismissed a simultaneous possession of methylamine and phenyl 2 propanone with the intent to manufacture methamphetamine charge and a transportation of methamphetamine charge ( 11383, subd. (a), 11379, subd. (a)); struck appellant's prior conviction; and sentenced him to 10 years in prison. The sentence included a three-year low term for manufacturing methamphetamine ( 11379.6, subd. (a)), a consecutive five-year excess weight enhancement ( 11379.8, subd. (a)(2)); a consecutive two-year enhancement for manufacturing in a structure with children present ( 11379.7, subd. (a)); and four concurrent two-year terms for child abuse (Pen. Code, 273a, subd. (a)). Court affirm.

This is the third action filed in pro. per. by appellant Thomas Hawkins III. All three actions arise from a criminal, misdemeanor trial in which appellant was convicted on June 28, 2004, of the unlawful obstruction of a peace officer and of preventing and dissuading a witness from reporting charges. Like the previous two actions, this action is also predicated on the rulings of the trial court in that case. This third action has been brought against the Cities of Glendora and West Covina and the State of California. The trial court sustained the demurrers of all three defendants without leave to amend. Court affirm the resulting judgment.

Fernando Perez appeals from a judgment entered after a jury convicted him of driving under the influence and found he had refused to submit to a chemical test. He contends his conviction is not supported by substantial evidence, and the trial court imposed the upper term as punishment for electing to stand trial. Court affirm.

Defendant Julio Cesar Jimenez appeals from a judgment of conviction following his no contest plea pursuant to a plea bargain. Defendant was convicted of corporal injury to a spouse, cohabitant, or childs parent (Pen. Code, 273.5, subd. (a)[1](count 2)) and criminal threats ( 422 (count 4)). The trial court sentenced defendant to state prison for a total term of three years, that is, the mid-term of three years as to count 2 and, as to count 4, the upper term of three years, to be served concurrently with the sentence for count 2. The other three counts with which defendant was charged in the information were dismissed.

Appellant Marcos R., a minor, appeals from an order of the juvenile court declaring him to be a ward of the court (Welf. & Inst. Code, 602) and ordering him suitably placed after finding that appellant was guilty of first degree residential burglary (Pen. Code, 459). On appeal, appellant contends that the burglary must be deemed second degree because the juvenile court failed to specify the degree of the offense. Appellant also contends that the matter should be remanded for a determination of whether the second degree burglary is a misdemeanor or a felony. Court disagree and affirm the order of the juvenile court.