CA Unpub Decisions

Adriana Vasquez appeals from the judgment entered after conviction by a jury of conspiracy to commit burglary (Pen. Code, 182, subd. (a)(1), 459), second degree commercial burglary ( 459, 460, subd. (b)), grand theft ( 487, subd. (a)), possession of a false identification card ( 529.5, subd. (c)), and petty theft with a prior theft-related conviction. ( 666.) She was sentenced to prison for three years.
Appellant contends that the trial court erroneously admitted her coconspirators' hearsay statements. She argues that the admission of these statements violated her Sixth Amendment right of confrontation. Court affirm.

A jury convicted Damon Reynolds (appellant) of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1](count 1) and the attempted making of criminal threats ( 422) (count 2). The trial court sentenced appellant to the midterm of three years on count 1 and a consecutive one-third the midterm, or four months, on count 2.
Appellant appeals on the ground that the evidence was insufficient to support the jurys finding that appellant attempted to make a criminal threat towards the victim. Court affirm.

Esteban G. appeals from the juvenile courts order declaring him a ward of the court and placing him home on probation, contending there was insufficient evidence to support the finding he made a criminal threat (Pen. Code, 422). Court affirm.

Ruben R., Sr. (father) appeals from the order of the juvenile court, pursuant to Welfare & Institutions Code section 366.26,[1] terminating his parental rights to Joseph R. (born in October 2004) and to twins Destiny R. and Ruben R., Jr. (born in September 2005). He contends the court erred because it did not insure that respondent, Santa Barbara County Child Welfare Services, had complied with the Indian Child Welfare Act (ICWA) (25 U.S.C.A. 1091, et seq.) and because it did not require respondent to give biological relatives of the children preferential consideration in determining their foster care and adoptive placement. Court affirm.

Michelle Bongo appeals her conviction by plea of grand theft (Pen. Code, 487, subd. (a)) with special findings that the theft exceeded $50,000 ( 12022.6, subd. (a)(1)). The trial court suspended imposition of sentence and granted probation with one year jail and restitution. Appellant claims that the trial court abused its discretion in imposing alcohol and drug terms as a term of probation. Court affirm.

Michael J. Coleman appeals from the judgment entered following his no contest plea to assault by means of force likely to cause great bodily injury. (Pen. Code, 245, subd. (a)(1).)[1] Pursuant to the negotiated plea, the trial court dismissed a sexual assault count ( 220), two counts for resisting an officer ( 69), and three prior prison term enhancements ( 667.5, subd. (b)). Appellant was sentenced to four years state prison and ordered to pay a $200 restitution fine ( 1202.4, subd. (b)), and a $200 parole revocation fine ( 1202.45). The judgment is affirmed.

A jury convicted defendant Jesus Dias Ruiz of possession of marijuana for sale (Health & Saf. Code, 11359) and cultivation of marijuana (Health & Saf. Code, 11358) and found, in connection with both counts, that a principal was armed with a firearm (Pen. Code, 12022, subd. (a)(1)).
The trial court sentenced defendant to state prison for an aggregate term of three years, that is, the midterm of two years for the possession for sale offense plus one year for the arming enhancement. For cultivation and the enhancement, defendant received a concurrent three-year term.
Defendant appeals, contending (1) his sentence for cultivation and the enhancement should have been stayed pursuant to Penal Code section 654 and (2) defense counsel rendered ineffective assistance in failing to object to the evidence of the details of defendants prior arrest and conviction of two counts of misdemeanor possession of marijuana. Court affirm.

Defendant James Decker, an inmate of Mule Creek State Prison, was charged with conspiracy to transport methamphetamine to a noncontiguous county for sale (count I; Pen. Code, 182, subd. (a)(1)/Health & Saf. Code, 11379, subd. (b); undesignated section references are to the Penal Code); conspiracy to bring and send controlled substances into a state prison (count II; 182, subd. (a)(1)/Health & Saf. Code, 4573); conspiracy to possess controlled substances in a state prison (count III; 182, subd. (a)(1)/Health & Saf. Code, 4573.6); conspiracy to sell, furnish, and transport marijuana (count IV; 182, subd. (a)(1)/Health & Saf. Code, 11360, subd. (a)); transporting methamphetamine to a noncontiguous county for sale (count V; Health & Saf. Code, 11379, subd. (b)); bringing methamphetamine into a state prison (count VI; 4573); and possession of methamphetamine in a prison facility (count VII; 4573.6).[1] As to counts I and V, it was alleged that defendant had one prior conviction for violating Health and Safety Code section 11351 and three prior convictions for violating Health and Safety Code sections 11378, 11379, and 11379, subdivision (a). As to all counts other than count IV, it was alleged that defendant had sustained ten prior convictions and served three prison terms. Pursuant to a plea bargain, defendant pled guilty to count I, with all other charges dismissed, in return for a prison sentence of nine years (the upper term) consecutive to his current term. The trial court imposed this sentence.
Defendant contends: (1) The court failed to recognize its discretion to sentence concurrently rather than consecutively. (2) The upper term violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm.

Defendant Sonya Lee Silveira pled guilty to driving under the influence in violation of Vehicle Code section 23152, subdivision (a),[1]and admitted three prior convictions in exchange for dismissal of all remaining charges and an agreement that she serve no immediate state prison time. The court granted defendant three years probation pursuant to specified terms and conditions, including an unspecified fine in the amount of $2,128. On appeal, defendant contends, and the People concede, the trial courts failure to provide a statutory basis for the $2,128 fine requires remand for resentencing and correction of the courts order. Court remand the matter to the trial court for clarification of the $2,128 fine imposed and correction of its order, and shall affirm the judgment in all other respects.

A jury convicted Joseph Colaneri of one count of assault by means likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).)[1] The jury also found that Colaneri used a deadly weapon in committing the assault, and that he inflicted great bodily injury. ( 1192.7, subd. (c)(23), 1192.7, subd. (c)(8), 12022.7, subd. (a).) The jury found Colaneri not guilty of a second count of assault by means likely to produce great bodily injury. The trial court found that Colaneri had two prior strike convictions, as well as two prison priors ( 667, subd. (b)-(i), 667.5, sub. (b)), and sentenced him to 30 years to life in state prison under the Three Strikes law. Colaneri appeals. He argues that his conviction must be reversed because the trial court abused its discretion in declining to replace his court appointed attorney, and in declining to declare a mistrial when one of the witnesses referenced the fact that Colaneri was on parole. Colaneri also contends that the trial court's findings with respect to his prior strikes must be reversed because those findings were not supported by substantial evidence. Finally, Colaneri contends that the trial court abused its discretion by declining to strike at least one of his prior strikes. As discussed below, Court conclude that Colaneri's contentions lack merit, and affirm.

Defendant Jane Marvaso appeals from a judgment of the trial court in which the court created an equitable mortgage in her favor in the amount of $189,350 on real property located on Enders Avenue in San Diego (Property). In 2000, Marvaso agreed to sell the Property to Michael Lowe for a total of $277,500, which Lowe was to pay over a five-year period. The unconventional contract (the contract) between the parties created a seller-financed transaction pursuant to which Lowe would make a $15,000 down payment, pay 60 monthly installments of between $1,200 and $1,300, and at the end of five years, make a balloon payment for the balance of the purchase price. The contract also provided that Lowe would take immediate possession of the Property and that Marvaso would convey a 90 percent interest in the Property to Lowe. In 2002, Marvaso executed a grant deed in which she conveyed a 90 percent interest in the property to Lowe and retained a 10 percent interest. Finally, both parties indicated during oral argument that if this court concludes that Barnes is to retain his 90 percent interest in, and possession of, the property, the parties want the refinancing to occur as soon as possible so that Marvaso can receive the money due to her, and Barnes can receive the final 10 percent interest in the property. With this in mind, the trial court should set a reasonable time frame during which the parties are to commence and complete the refinancing of the property. The trial court should retain jurisdiction over this matter to monitor the status of the equitable remedy.

Arthur and Janet Valentine appeal an order awarding attorney fees to La Jolla Bank, FSB, in this action by them against the bank for its alleged negligence in disbursing construction loan funds to their joint venture partner. They contend that, in accordance with the terms of the attorney fee provisions of the loan documents, La Jolla Bank is not entitled to recover attorney fees incurred in defending against a tort cause of action. Court conclude that a provision in the construction loan agreement is broad enough to authorize the recovery of attorney fees in this case and affirm the trial court's order.

Penal Code[1]section 4852.01 permits a person convicted of a felony or certain misdemeanors to petition for a certificate of rehabilitation in the superior court. An offender is only eligible to file such a petition if, among other things, he or she exhibits "good moral character" ( 4852.05) and, as applicable here, demonstrates a 10 year "period of rehabilitation" commencing upon the petitioner's "discharge . . . from custody due to" the "completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner" ( 4852.03, subd. (a)). Court Affirmed.

Raymond A. Gonzales entered a negotiated guilty plea to committing a lewd act on a child under 14 years old (Pen. Code, 288, subd. (a)) and admitted substantial sexual contact ( 1203.066 subd. (a)(8)). The court sentenced him to prison for the six year middle term. Gonzales appeals. Court affirm.