CA Unpub Decisions

Defendant William Adam Banks appeals from a judgment sentencing him to six years in prison. His sole claim is that the upper term sentence the trial court imposed on count 1 violated his constitutional rights because it relied on aggravating factors that were not proven to a jury beyond a reasonable doubt. In an opinion issued April 13, 2007, we held the courts reliance on defendants prior convictions and his unsatisfactory performance on probation and parole could support its choice of the upper term, but reversed the sentence and remanded the matter for a new sentencing hearing on whether, in the exercise of its discretion, the trial court believed this factor alone supported imposing an upper term. The California Supreme Court granted a petition for review and subsequently transferred the matter back to us with directions to vacate our original decision and reconsider the case in light of its recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We issued an order vacating our original decision and granted the parties additional time to file supplemental briefs. Having received and considered the supplemental briefs, Court now affirm the judgment.

As presented in briefing, the sole issue in this case is whether the post-plea restitution fund fine of $4,700 that the trial court imposed under Penal Code section 1202.4[1] violated the terms of defendants plea bargain under People v. Walker (1991) 54 Cal.3d 1013 (Walker). We filed our original opinion affirming the trial courts judgment. (People v. Romero (March 8, 2006, H028708) [nonpub. opn.].) That opinion concluded that because defendants plea bargain did not include any provision concerning the mandatory restitution fund fine, and because it appeared that the amount of the fine was left to the discretion of the trial court, defendant had not demonstrated that the fine exceeded his bargain. But based on the parties agreement and the supporting record that the abstract of judgment mistakenly stated the amount of the restitution fund fine to be $4,800, $100 in excess of what was intended, Court also modified the abstract to correct this error.

A modification decision.

Countrywide Home Loans (Countrywide) and three of its supervisory employees appeal from an order compelling them to provide discovery responses and imposing $7,500 in sanctions under Code of Civil Procedure section 2031.310, subdivision (d).[1] Defendants contend that the imposition of sanctions was an abuse of discretion because they had made valid and justified privacy objections to compliance, they had already agreed to provide supplemental corrective responses, and they successfully opposed the motion with respect to "numerous" discovery demands. Defendants further challenge the amount of the sanctions award as excessive and unjust. Court find no error and affirm the order.

Samuel Lopez challenges an order granting his grandmothers request for a restraining order against him under the elder abuse statute (Welf. & Inst. Code, 15657.03) on the grounds that the courts finding of a prior act of abuse is not supported by substantial evidence. Court hold substantial evidence supports the finding and affirm the order.

Anthony Vassallo appeals from the trial courts order vacating entry of a New York state judgment entered in California against Nayna Networks, Inc. under Code of Civil Procedure section 1710.25, which provides for entry of judgment on sister state judgments. Vassallo contends that the trial court abused its discretion in vacating the judgment because Nayna had failed to meet the statutory grounds for vacation of judgment on a sister state judgment under section 1710.40. We conclude that Vassallo has failed to carry his burden on appeal of demonstrating the trial courts abuse of discretion and Court accordingly affirm the order.

Appellant Paul Eric Shea appeals from the 10 year 4 month state prison sentence he received after entering a plea of guilty, with a Harvey waiver,[1] to four felonies and one misdemeanor charge. In his opening brief on appeal, appellant claims sentencing error in that the trial court failed to articulate reasons for sentencing appellant to an aggravated term as the principal term (child endangerment, Pen. Code, 273a, subd. (a))[2],and for ordering him to submit to involuntary AIDS testing without probable cause. After appellants opening brief was filed, leave was granted allowing him to submit a supplemental brief on the question of whether his aggravated sentence should be vacated in light of the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Respondent addressed this issue in its brief, as well as responding to those issues raised in appellants opening brief.
On July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) 41 Cal.4th 799 (BlackII), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Court provided the parties the opportunity to file letter briefs discussing the impact of these decisions to this appeal, which Court have received, and we have examined the issue once more. Again Court conclude that appellants Blakely Cunningham Black II claim has merit, and because we cannot conclude that the error was harmless beyond a reasonable doubt, Court remand to the trial court with direction to reconsider appellants sentence.

Nicholas Burt Floyd was sentenced to an aggravated term of imprisonment following his conviction by a jury of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1]; second degree robbery ( 211); and attempted second degree robbery ( 211, 664). In connection with the assault with a deadly weapon count, the jury found that appellant had personally inflicted great bodily injury and paralysis on the victim ( 12022.7, subd. (b)) and that he personally used a dangerous weapon ( 12022, subd. (b)(1)). Appellants sole challenge is to the imposition of the aggravated term. He contends imposition of the upper term denied him his rights under the Sixth Amendment as explicated in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856 (Cunningham), in that: (1) his waiver of the right to a jury trial on aggravating factors was involuntary and invalid because he was not given timely notice of the aggravating factors that the prosecution sought to prove; (2) the trial court erred in failing to find aggravating factors beyond a reasonable doubt; (3) the circumstances in aggravation relied on by the court were improper under Cunningham; and (4) the error was prejudicial. At our request, the parties have filed supplemental briefing regarding the impact of two recent opinions of the California Supreme Court, People v. Black (2007) 41Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), on the issues raised herein. Court affirm.

Defendant Anthony W. challenges juvenile court orders committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF),[1] and ordering that he pay restitution to the State Victim Compensation Board. We conclude that he did not file timely notices of appeal from those orders, and Court dismiss his appeal as to those orders. Defendant also contends the juvenile courts dispositional and commitment orders inaccurately state that the underlying sustained counts were for forcible lewd acts, Penal Code section 288, subdivision (b). Court remand for correction of the orders.

Appellant Thomas Lutge appeals from a workplace restraining order obtained by respondent Eskanos & Adler barring appellant from contacting respondents former employee Ryan White (White), Whites family members, and all of respondents current employees. Appellant contends the order was improperly issued for multiple reasons, all of which Court reject below. Accordingly, the order is affirmed.

Gustave William Link (Link) appeals from a summary judgment entered against him on his complaint for various claims related to the termination of his employment and fraud. He contends the court erred in concluding that his employment-related claims were barred by collateral estoppel and that he could not prevail on his fraud claim as a matter of law. Court affirm the judgment.

Defendants Brian M. Carter and Laure Kelley appeal an order granting a preliminary injunction in favor of plaintiffs, Steven P. Scagliotti and Elaine L. Scagliotti (the Scagliottis), in the latters action to quiet title to their residential property in Pleasanton (the subject property). As discussed below, Court find no abuse of discretion and affirm the order.

Rimma Fetissova appeals convictions for conspiracy to solicit for a prostitute (Pen. Code, 266h, subd. (a)/182, subd. (a)(1)),[1]conspiracy to commit pandering ( 266i, subd. (a)(1)/182, subd. (a)(1)), soliciting for a prostitute ( 266h, subd. (a)), pandering ( 266i, subd. (a)(1)), and four counts of money laundering ( 186.10, subd. (a)). The jury found a true allegation that two money laundering counts involved amounts in excess of $50,000. ( 186.10, subd. (c)(1)(A).) Fetissova was sentenced to nine years in state prison consisting of a six-year upper term on the soliciting for a prostitute count, and consecutive terms of 16 months on the pandering count and eight months and one year, respectively, on two of the money laundering counts. Other sentences were stayed. ( 654.) Fetissova contends that, because the sentences were based on aggravating factors determined by the court, the trial court's imposition of an upper term and consecutive sentences violated her constitutional right to a jury trial. Court agree as to the upper term sentence, and reverse and remand for resentencing.

Antonio Barba appeals from the judgment entered after a jury convicted him of first degree murder. Court reject his contentions that the prosecutor improperly challenged a prospective juror due to his race and that the court erred by admitting certain DNA related evidence and evidence related to some of Barbas jailhouse conversations, and therefore affirm the judgment.