CA Unpub Decisions

Respondents Mercedes Asuncion, Remigio M. Ruano, Jr., and Narciso Ruano filed an action for abuse of process against appellants Krys Howard, Marites Howard, Maribel Liberato, Tiffany Krog, and the DiJulio Law Group and R. David DiJulio. The trial court denied appellants special motion to strike brought under Code of Civil Procedure section 425.16 (hereafter section 425.16). Court conclude that, as a matter of law, respondents cannot prevail in their action and that therefore the motion to strike should have been granted. Accordingly, Court reverse.

On March 13, 2006, Ramiro Jimenez pleaded guilty to two counts of second degree burglary in violation of Penal Code section 459 (counts 1 and 2), one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 3), and one count of being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a) (count 4). Jimenez also admitted that he had served three prior prison terms within the meaning of section 667.5, subdivision (b), and that he committed counts 1 and 2 while released from custody on bail or on his own recognizance within the meaning of section 12022.1. The judgment is affirmed.

Pursuant to a plea bargain, appellant Alejandro Matildes pleaded no contest to one count of residential burglary; another count for residential burglary was dismissed. Appellant was sentenced to the low term of two years, was awarded custody credits, and the court imposed four minor fines totaling $430. The sole issue on appeal is the imposition of a victim restitution fine in the amount of $5,015. Court affirm.

Leroy P., the father of five-year-old Victoria P., appeals from the juvenile courts orders made at the jurisdiction and disposition hearings declaring Victoria a dependent child of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d), and removing her from his custody pursuant to section 361, contending the court erred in relying on Victorias out of court statements Leroy had sexually abused her. Court conditionally affirm the juvenile courts orders, but remand for compliance with the notice provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq. (ICWA)).

Defendant George Barnett Harmon pled no contest to possession of a firearm by a felon and admitted a prior serious felony conviction within the meaning of the three strikes law. The trial court sentenced him to the upper term of six years, reflecting the prior strike. Defendant obtained a certificate of probable cause, and on appeal challenges his upper term sentence.
Defendant originally contended the imposition of the upper term violates the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. He also asked for the abstract to be amended to reflect that he was sentenced with a strike. In our original opinion we rejected defendants Blakely claim, and ordered the trial court to amend the abstract to show defendant was sentenced under the Three Strikes law.
The trial court is directed to prepare an amended abstract of judgment correctly reflecting that defendant was sentenced under the second strike provision of the Three Strikes law. A certified copy of the amended abstract is to be forwarded to the Department of Corrections and rehabilitation. As amended, the judgment is affirmed.

Defendant Lawrence Van Riley entered a plea of no contest to the sale of methamphetamine (Health & Saf. Code, 11379, subd. (a)) and admitted a strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) and three prior prison term allegations (Pen. Code, 667.5, subd. (b)) in exchange for the prosecutors agreement not to add any additional enhancements. Defendant reserved the right to file a motion to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). After denying defendants Romero motion, the court sentenced defendant to state prison for an aggregate term of nine years, that is, the midterm of three years, doubled for the strike prior, plus three 1 year prior prison term enhancements. Defendant appeals. He contends the trial court abused its discretion in denying his Romero motion, requiring remand for a new hearing on the motion. Court disagree and affirm the judgment.

A jury convicted defendant Carl Dewayne Hughes of the continuous sexual abuse of Shannon D. (Pen. Code, 288.5; undesignated section references are to this code). The court sentenced defendant to state prison for the upper term of 16 years.
Defendant appeals. He contends the trial courts imposition of the upper term contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham), requiring remand for resentencing. Court disagree and affirm.

Pursuant to a negotiated settlement, defendant Ronald Sanchez pled guilty to possession of methamphetamine and forgery, and admitted a prior strike conviction in exchange for the dismissal of other counts and a stipulated sentence of six years. It was also agreed upon that defendant would be released on his own recognizance and if, as directed, he appeared for sentencing on June 6, 2005, and had not pick[ed] up a new case, he would receive a sentence of 32 months. Defendant failed to appear on June 6, 2005, and was arrested on September 1, 2006. On September 25, the court imposed the six year term.
Having undertaken an examination of the entire record, Court find no error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Appellant Brian Connelly, acting as a licensed real estate salesperson, marketed residential units in two condominium projects in downtown San Diego known as Treo and La Vita. The Treo project was developed by respondent Intergulf Development (Kettner), LLC (Intergulf) and the La Vita project was developed by respondent Lennar-Intergulf (Little Italy), LLC (Lennar).[1] Intergulf eventually discharged Brian and filed a lawsuit against him, based largely on allegations that Brian defrauded Intergulf by selling units at prices below Intergulf's established list prices. Brian filed a cross-complaint against Intergulf, Lennar and others seeking unpaid commissions and other damages. Lennar later filed a cross-complaint against the Connellys for fraud and breach of fiduciary duty in connection with the Connellys' purchase of a unit in La Vita. The court dismissed all of Brian's cross-claims against respondents before or during trial, and a jury returned verdicts in the Connellys' favor on Lennar's cross complaint and in Brian's favor on Intergulf's complaint. After the court entered judgment, Intergulf and Lennar jointly moved for a new trial and the court granted the motion.
The judgment entered on June 3, 2005, is reinstated and is affirmed in its entirety.

This is an appeal from an order denying Bret Marquis's postjudgment motion that the trial court remove a mandatory sex offender registration requirement from the judgment. After a jury trial, Bret Marquis was found guilty of voluntary oral copulation with a minor age 14 or 15 by a defendant over age 21. (Pen. Code, 288a, subd. (b)(2); see 288.) Pursuant to section 290's mandatory sex offender registration requirement for defendants convicted of certain specified sex offenses, Marquis was ordered to register as a sex offender. ( 290, subd. (a)(1)(A), (2)(A).) He challenged the registration requirement on appeal, arguing that his constitutional right to equal protection of the laws was violated because a defendant convicted of voluntary sexual intercourse with a minor in the same age group was subject only to section 290's discretionary sex offender registration requirement. In an unpublished opinion, Court rejected this challenge. (People v. Marquis (Oct. 18, 2005, D044601) (Marquis I).)

Lester Glynn Davis entered a negotiated guilty plea to one count of residential burglary (Pen. Code, 459). The court sentenced Davis to prison for a stipulated four year middle term. Davis appeals. Court affirm the judgment.

The parental rights of minors parents were terminated on January 25, 2007, and they are not parties to this petition. Petitioners (petitioners, Mrs. S., or Mr. S.) are the foster parents of the minor and had hoped to adopt the child. The minor was originally placed in their care in April 2006, when he was 14 months old. However, in the summer of 2007, the San Bernardino County Department of Childrens Services (department) determined that the minor should be removed from petitioners custody; the trial court granted this request. Petitioners challenge this ruling. The petition for writ of mandate is denied.

A jury found Dwayne Dunlap guilty of possession of marijuana in a state prison and found three prison term prior allegations true. ( 667.5, subd. (b), 4573.6.[1]) The court sentenced him to an aggregate seven-year term (the aggravated four-year term on the possession and a one-year term on each of the priors). On appeal, he argued that the lack of jury findings on circumstances in aggravation made the courts imposition of the aggravated term violative of his federal constitutional rights to due process and jury trial. In reliance on People v. Black (2005) 35 Cal.4th 1238 (Black I) and in deference to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity), we affirmed the judgment. (People v. Dunlap (Dec. 1, 2006, F049177) [nonpub. opn.].) Weeks later, the United States Supreme Court issued Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham), which overruled Black I and precipitated the California Supreme Courts initial issuance of a grant-and-hold (Cal. Rules of Court, rule 8.512(d)(2)) and subsequent order of a transfer without decision (Cal. Rules of Court, rule 8.528(d)) with directions to vacate our decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Having done so, and having read the supplemental briefing of both parties, Court again affirm the judgment.

Appellant Manuel Mesa entered into a plea agreement, covering Tulare County Superior Court case Nos. VCF155465, VCF162457, and VCF162657 (hereafter case Nos. 155465, 162457, & 162657, respectively), whereby he was to receive a stipulated sentence of eight years four months in prison. Although he was sentenced to the agreed-upon term, he now contends that, in one of the cases, the trial court sentenced him to a term in excess of the negotiated disposition for that case. He also claims excessive fines were imposed. Respondent counters that the appeal must be dismissed because appellant did not obtain a certificate of probable cause with respect to the issues he now raises, and that, in any event, appellant was properly sentenced. For the reasons that follow, Court modify the sentence, but otherwise affirm.