CA Unpub Decisions

Defendant and appellant Manuel Quirio Mazariegos appeals after the trial court revoked his probation and sentenced him to state prison. He has also filed a petition for writ of habeas corpus. The writ petition has been ordered considered together with the appeal. The gist of both attacks is the same: That his five-year probation expired as a matter of law before the court took the appropriate actions to assert jurisdiction over him. Court affirm the courts orders and deny the petition for habeas corpus.

Larry Michael Urias (appellant) pled no contest to one count of heroin possession (Health & Saf. Code, 11350, subd. (a)), and admitted that he had served three prior prison terms (Pen. Code, 667.5, subd. (b)), and had one prior strike conviction (Pen. Code, 667, subds. (b)-(i)). In exchange, the trial court placed appellant on Proposition 36 probation. After appellant violated probation on various occasions, the trial court sentenced appellant to the upper term of six years in prison, plus three years for the three prior prison terms, and imposed various fees and fines. On appeal, appellant contends: (1) that the upper term imposed violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham); (2) that trial counsel was ineffective; (3) that the trial court abused its discretion when it denied his Marsden motion; (4) that the trial court abused its discretion when it denied his Romero[2]motion; (5) that the trial court erred when it denied his request for California Rehabilitation Center (CRC) treatment; (6) that the cause must be remanded to correct the abstract of judgment; and (7) that there was cumulative error. Court agree only with appellants contention that the cause must be remanded to correct the abstract of judgment, and in all other respects affirm the judgment.

Appellant Julie M. Hyder was convicted after jury trial of conspiracy to possess a controlled substance in prison (count 1), transportation of heroin (count 3), possession of a controlled substance (count 4), transportation of methamphetamine (count 5), and possession of heroin and methamphetamine (count 6); the court found true two prior prison term enhancement allegations and a prior drug conviction enhancement allegation. (Pen. Code, 182, subd. (a)(1), 4573.6 and 667.5, subd. (b); Health & Saf. Code, 11352, subd. (a), 11350, subd. (a), 11379, subd. (a) and 11377, subd. (a).) She was sentenced to an aggregate term of 11 years imprisonment. As modified, Court affirm.

Appellant, Charles Thomas Anderson, was charged in an amended information with kidnapping (Pen. Code, 207, subd. (a), count one),[1]false imprisonment by means of violence ( 236, count two), and resisting a peace officer ( 148, subd. (a)(1), count three). It was further alleged that Anderson had a prior serious felony conviction within the meaning of the three strikes law and was subject to two prior prison term enhancements. Prior to trial, Anderson waived his constitutional rights and admitted count three. The court granted a motion to bifurcate the truth of the prior serious felony allegation and the prior prison term enhancements. At the conclusion of the prosecutions case, the trial court granted a defense motion to dismiss the kidnapping allegation pursuant to section 1118.1. The jury found Anderson guilty of the false imprisonment by means of violence allegation. Anderson waived his right to a jury trial on the truth of the special allegations. The court found these allegations true. The trial courts restraining order against appellants contact with Olsen and her family is reversed. The judgment is otherwise affirmed.

L.C. appeals from October 2007 orders denying her ex parte request for a contested hearing on a matter previously decided and her request for an order returning custody of her three children (Welf. & Inst. Code, 388) who have been dependent children for many years.[1] Appellants appointed appellate counsel submitted a letter dated January 28, 2008, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated January 31, 2008, we extended time for appellant to personally file a letter brief. Appellant has filed such a letter brief with this court. In it, she argues the court erred by failing to grant her meaningful evidentiary hearings on the departments modification request as well as her later request for custody. Having reviewed the appellate record as summarized below, we conclude appellants assertions do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994). Court affirm.

On April 26, 2006, petitioner was charged in the Madera County Superior Court by criminal complaint with violation of Vehicle Code section 23152, subdivision (a),[1]driving under the influence of an alcoholic beverage or drug (count 1). He was also charged with violation of section 16028, subdivision (a), driving without evidence of financial responsibility (count 2). Due to his in custody status, petitioner filed a section 41500 request, asking that the above described charges be dismissed. The Madera County Superior Court denied the request. The instant petition followed. Let a peremptory writ of mandate issue directing the Madera County Superior Court to dismiss count 2 in action No. CCR014411. The petition for writ of mandate is otherwise denied. This opinion is final forthwith.

This is a companion appeal to City of San Jose v. Operating Engineers Union Local No. 3 (H030272, pub. opn., filed Mar. 4, 2008). Both cases present the same two substantive legal issues jurisdiction over particular labor disputes and the need for exhaustion of administrative remedies as well a similar threshold question, mootness. In this case, because the underlying controversy has been resolved, Court dismiss the appeal as moot.

Plaintiff Yong Tan Huang appeals from an order dismissing his complaint against defendants Tim Bell and Gayle Bell. The dismissal was entered as a sanction for plaintiffs failure to complete his deposition after the trial court had ordered him to do so. Plaintiff contends that the trial court abused its discretion in dismissing his complaint as a sanction for his noncompliance. Court disagree and affirm.

Defendant Anthony Lee Baldwin was convicted by guilty plea of vehicle theft (Veh. Code, 10851), and by no contest plea of resisting a police officer (Pen. Code, 148, subd. (a), a misdemeanor).[1] He also admitted having served two prior prison terms. ( 667.5, subd. (b).) The court sentenced defendant to four years in state prison and awarded him 486 days of presentence custody credits. On appeal, defendant contends that the trial court erred by denying his motion to suppress evidence ( 1538.5), because the officer who prepared the affidavit supporting the search warrant authorizing the search of defendants residence and vehicles retained a portion of the affidavit after the trial court granted the officers request to seal that portion of it. Defendant also contends, and the Attorney General concedes, that he is entitled to one additional day of presentence custody credit. Court order modification of the judgment by granting defendant one additional day of presentence custody credit, and affirm the judgment as so modified.

A law firm filed a complaint on behalf of an insured alleging bad faith handling of an insurance claim. The insurer moved to disqualify the firm based on its current and prior representation of affiliated insurance companies. The court found the firm had a disqualifying conflict of interest, but denied the motion based on delay and prejudice to the plaintiff.

The commercial lease pertinent to this appeal was extinguished by a trustee sale under a deed of trust. The deed of trust was senior to the lease by virtue of a clause in the lease subordinating it to future mortgages. In this appeal from a judgment, after summary adjudication and court and jury trials, appellants,[1]the former lessees of the foreclosed property, continue to assert that the lease was not forfeited because the subordination clause encompassed only mortgages, not deeds of trust. As we explain, under long-settled legal precedent the two instruments are functionally and legally the same. Appellants also assert that the trial court awarded damages to respondents for appellants postforeclosure occupancy of the premises on an improper basis. Court conclude the damage award was appropriate. Accordingly, Court affirm the judgment in its entirety.

Plaintiff and appellant, Gerald Adair, individually and as trustee of Triple-T Trust (hereafter Adair), appeals from a judgment following a court trial. Adair contends that the trial court erred, earlier in these proceedings, in conditionally granting his motion to set aside a default entered on a cross-complaint filed by defendant and respondent Terry Lee, individually, and as trustee of the Carl F. Brellow and Reva G. Brellow Trust, (hereafter Lee). Adair also argues that the default judgment improperly awarded punitive damages to Lee. Court affirm the judgment with the exception of that portion of the award awarding punitive damages, which Court reverse.

Dennis W., a minor, appeals the juvenile courts jurisdictional and dispositional orders entered in connection with two petitions under Welfare and Institutions Code section 602. He contends the juvenile court erred in denying his motion to suppress evidence. Court affirm.

Carol Marlene Jones appeals from a judgment entered after the trial court revoked her probation. She contends (1) the court failed to provide her with adequate notice and an opportunity to be heard, and (2) the court abused its discretion when it revoked her probation. Court conclude the court did not commit any prejudicial errors and affirm.