CA Unpub Decisions

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. On January 9, 2007, defendant filed a document entitled, NOTICE AND MOTION FOR AN EXTENSION OF TIME, THE APPOINTMENT OF NEW COUNSEL, AND PRODUCTION OF RECORDS. We denied defendants request for new counsel and for production of records and granted his request for an extension of time to file a supplemental opening brief to February 13, 2007. We have received no further communication from defendant. Having reviewed the record as Court are required to do, Court affirm the judgment.

In July 2005, defendant Bert Barkley Taylor assaulted the victim by means of force likely to produce great bodily injury. In May 2006, defendant pleaded no contest to violation of Penal Code section 245, subdivision (a)(1). In exchange, a great bodily injury allegation ( 12022.7, subd. (a)) and prior prison term allegations ( 667.5, subd. (b)) were dismissed.
Defendant was sentenced to state prison for four years, awarded 48 days of custody credit and 24 days of conduct credit, and ordered to pay an $800 restitution fine ( 1202.4, subd. (b)), an $800 restitution fine suspended unless parole is revoked ( 1202.45) and a $20 court security fee ( 1465.8). The judgment is affirmed.

After defendant Edy Alberto Flores-Castro admitted he struck and bit his live-in girlfriend, he pled guilty to inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)) and was sentenced to prison. After sentencing, an abstract of judgment was prepared that included the imposition of a $400 domestic violence fee pursuant to section 1203.097, subdivision (a). Defendants sole contention on appeal is that imposition of the $400 fine was error because section 1203.097, subdivision (a) applies only to defendants who receive probation. The People properly concede error.Court agree. Section 1203.097 states, in pertinent part: (a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [] . . . [] (5) A minimum payment by the defendant of two hundred dollars ($200) to be disbursed as specified in this paragraph. If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee.

The juvenile court found a charge against Christopher T. (the minor) for vehicle theft (Veh. Code, 10851)[1]to be true. The court committed him to juvenile hall for approximately one year (minus 225 days of credit), and aggregated three prior sustained petitions with his current offense for a maximum term of confinement of six years. The minor contends on appeal that there was insufficient evidence to support the juvenile courts finding of vehicle theft, and that his maximum term of confinement was not properly calculated. The People concede the minors second contention. Court accept the Peoples concession and direct the juvenile court to modify the dispositional order of September 18, 2006, to reflect the correct maximum term of confinement. In all other respects, Court affirm the judgment (dispositional order).

Sara H. (appellant), the mother of Mark T. (the minor), appeals from the juvenile courts order terminating appellants parental rights. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellant contends the juvenile court committed reversible error in failing to apply a statutory exception to adoption to the dependency proceedings. ( 366.26, subd. (c)(1)(A)). Appellant also claims the court abused its discretion in denying appellants request for a bonding assessment. For the reasons that follow, Court affirm the order.

After a bifurcated jury trial, Rodney Wayne Willis was convicted of petty theft with a prior theft-related conviction.[1] (Pen. Code,[2] 484, subd. (a), 666.) Willis then admitted as true, allegations he had suffered three separate prior prison term convictions



( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (b)-(i), 1170.12). After striking one strike conviction, the court sentenced Willis to a total term of nine years, consisting of the upper three year term for the petty theft with a prior doubled under the Three Strikes law, plus three consecutive one year terms for the prior prison term enhancements.
Willis appeals, contending the trial court prejudicially erred by failing to instruct the jury on attempted theft and violated his constitutional rights by imposing an upper term sentence contrary to the holding in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). As to this latter issue, the parties have filed supplemental briefing on the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham) that determined California's Determinate Sentencing Law (DSL), which permitted a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely. Although we find no prejudicial error to reverse Willis's conviction, Court reverse his sentence and remand for resentencing in light of Cunningham.

SMS.ac, Inc. (SMS.ac) appeals from an order granting Sean Rowland attorney fees after it dismissed its action against him for breach of contract, misappropriation of trade secrets and defamation, and the judgment thereon. It contends that the attorney fee provision in its underlying contract with Rowland authorizes a recovery of fees only in an action to "enforce, interpret or obtain a declaration of rights" thereunder and thus does not authorize the recovery of fees incurred in defending against tort causes of action. Court agree and reverse.

James Lowther appeals from a judgment convicting him of residential burglary and unlawfully receiving stolen property. He challenges the residential burglary conviction, contending (1) the trial court erred by precluding him from presenting evidence of a codefendant's prior statement that Lowther did not assist with the burglary, and (2) the evidence was insufficient to establish his culpability for burglary. Court reject Lowther's arguments and affirm the judgment.

Tuan C. Trang was found guilty of receiving stolen property and possession of a forged check. It was found true he had suffered three prior terms of imprisonment within the meaning of Penal Code section 667.5, subdivision (b). Trang was sentenced to a term of five years. He appeals, arguing error in the manner the offenses were charged, in the admission of evidence, in the omission of instructions and in sentencing.

A jury convicted David A. Cortez of forcible rape (Pen. Code, 261, subd. (a)(2))and forcible oral copulation ( 288a, subd. (c)(2)). He contends the trial court (1) abused its discretion by denying his Marsden motion, and (2) erred in sentencing him under both the one strike ( 667.61) and the habitual sex offender ( 667.71) laws.
Cortez's sentence is modified by striking his sentence under the one strike law, and as so modified, affirmed. The judgment is affirmed in all other respects.

A jury convicted Jacqueline M. Sanchez of possessing a controlled substance for sale (Health & Saf. Code, 11378) and possessing a controlled substance (Health & Saf. Code, 11377, subd. (a)). The court suspended imposition of sentence and placed her on three years' probation including a condition she serve 365 days in custody. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

After Allan Pimentel and Michael Mathias entered into a stipulated judgment deeming Mathias liable for an injury to Pimentel and assessing over $500,000 in damages, Pimentel and Mathias each sued Mathias's insurer, Pacific Specialty Insurance Company (PSIC), seeking payment of the judgment and alleging that PSIC, in bad faith, refused to defend and indemnify Mathias for Pimentel's claim. All parties moved for summary judgment/adjudication, and the trial court, after granting Mathias's motion for consolidation, denied Mathias's and Pimentel's motions and granted PSIC's motion. In this appeal Mathias and Pimentel challenge the trial court rulings, which were based on the ground that the insurance coverage sought by Mathias and Pimentel was for a loss resulting from a battery committed by the insured, Mathias, and was consequently a "loss caused by a wilful act" for which coverage was precluded under Insurance Code section 533. As discussed below, we agree with the trial court's ruling. The undisputed facts established that the loss at issue was caused by Mathias's intentional, wrongful and inherently harmful act, and thus section 533 precluded any potential for insurance coverage as a matter of law. Consequently, PSIC had no obligation to defend or indemnify Mathias, and summary judgment was proper.

On May 17, 2006, Farzad Farhbaksh entered guilty pleas to 32 counts of robbery. (Pen. Code, 211.) There was no agreement with the prosecution but the court advised Farhbaksh that it would not impose a sentence in the 30-year range. On August 11, the court sentenced Farhbaksh to prison for 34 years: the three year middle term on one robbery conviction with consecutive one year terms on the remaining 31 robbery convictions (one third the middle term). On December 1, the court set aside the sentence and set a hearing for December 21 on Farhbaksh's motion to reduce the sentence to not more than 14 years in light of the court's statement when Farhbaksh entered the guilty pleas or to withdraw the guilty pleas because: his attorney misadvised him regarding the length of possible consecutive terms; two of the robberies Farhbaksh pled guilty to having committed were attempted robberies; and Farhbaksh was improperly interrogated after his arrest. On December 21, the People dismissed the charges on the two counts Farhbaksh claimed were attempted robberies, and the court denied the motion to withdraw the guilty pleas. It sentenced Farhbaksh to prison for 28 years: the three-year middle term on one count with consecutive one-year terms on 25 counts and concurrent terms on four counts. In a request for a certificate of probable cause, Farhbaksh alleged that the guilty pleas were induced by his trial counsel's misstatement that consecutive terms would only be eight months each, and that consecutive sentences violated the Sixth Amendment (see Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

Aimee C. appeals from orders declaring her minor children, Julio S., Ethan U., Melody U., and V.M., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). Aimee challenges the sufficiency of the evidence to support the court's jurisdictional findings. Court affirm the order.