CA Unpub Decisions

Technology Properties Limited, LLC (TPL) and its principal, Daniel Leckrone, appeal from an order striking two causes of action in their cross-complaint against plaintiffs Chester and Marcie Brown. Defendants contend that the superior court improperly applied Code of Civil Procedure section 425.16[1] in striking these claims because they did not fall within the statutory description of a "strategic lawsuit against public participation" (SLAPP). We find no error and must therefore affirm the order.

On October 28, 2009, a consolidated information was filed in Kern County Superior Court, charging defendants Allen Rivas, Hilario Torres, and Joe Coronado, Jr., with attempted premeditated murder (Pen. Code,[1] §§ 187, subd. (a), 189, 664; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). Coronado was also charged with being a felon in possession of ammunition (former § 12316, subd. (b)(1); count 4).[2] As to count 1, it was alleged Coronado personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)), and, as to Rivas and Torres, that a principal in the commission of the offense so acted (id., subds. (d) & (e)(1)). As to count 2, Coronado was alleged to have personally inflicted great bodily injury (§ 12022.7). It was further alleged, as to counts 1 through 4, that defendant(s) charged therein committed the crime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Last, it was alleged Rivas and Torres each had previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).

K.P., age two, and K.M., less than one year, became dependents as a result of long-term drug abuse and the extensive criminal histories of their parents.[1] Mother’s parental rights as to two older children had previously been terminated, so the court denied services to mother, but granted services to the father of K.M. Services to the father of K.M. were terminated at the six-month review hearing and a hearing pursuant to Welfare and Institutions Code[2] section 366.26, was set for both children. During the interval prior to the section 366.26 hearing, mother completed a three-month residential drug rehabilitation program, gave birth to another child who remained in mother’s care, and resided in a sober living home, which formed the basis for a petition to modify the prior court order pursuant to section 388. The court denied the petition and terminated parental rights. Mother appealed.
On appeal, mother challenges the denial of her section 388 petition as an abuse of discretion. We affirm.

Appellant Robert L. Short (Husband) contends the trial court erroneously denied his motion to set aside a default judgment entered against him in a marriage dissolution proceeding. Despite Husband’s incarceration from before the default through the filing of his motion to set aside the default judgment, the trial court concluded the motion was untimely. Specifically, the court found that the motion to set aside the default judgment was not filed within the six-month period prescribed by Code of Civil Procedure section 473, subdivision (b).
The appellate record clearly establishes that Husband’s motion was deposited in the prison’s mail more than six months after the judgment was entered. Furthermore, Husband has not demonstrated that the six-month limit is unconstitutional on its face or unconstitutional as applied to his situation. Thus, the trial court correctly denied the motion on the ground it was untimely.
We therefore affirm the order denying the motion to set aside the judgment.

A jury convicted appellant, Eric Scott Campbell, of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)); receiving stolen property (Pen. Code, § 496, subd. (a));[1] possession of a firearm by a felon (§ 29800, subd. (a)(1)); possession of ammunition (§ 30305, subd. (a)(1)); and possession of marijuana for purposes of sale (Health & Saf. Code, § 11359). The court suspended imposition of sentence and placed appellant on five years’ probation, with various terms and conditions, one of which was that he serve one year in county jail.
The “MINUTE ORDER and ORDER GRANTING PROBATION” (minute order), signed by the court, states, in relevant part, that appellant was convicted of first degree burglary, “a violent felony within the meaning of [section 667.5, subdivision (c)] ....”
Appellant’s sole contention on appeal is that the evidence was insufficient to support the court’s finding that the instant first degree burglary was a violent felony within the meaning of section 667.5, subdivision (c). The People concede the point, and we agree. We order the erroneous finding be stricken, direct the trial court to issue an amended minute order, and otherwise affirm.

Appellant, Oscar Amparan, pled guilty to possession of methamphetamine (count 2/Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
On appeal, Amparan contends that three of his conditions of probation are unconstitutionally vague. We affirm.

In case No. BF131733A, appellant, Raul Castro Valenzuela, pled no contest to transportation or sale of cocaine (Health & Saf. Code, § 11352, subd. (a)).[1] On July 26, 2010, the court suspended imposition of sentence and placed Valenzuela on probation for three years on condition that he serve one year in local custody.
In case No. BF135839A, a jury convicted Valenzuela of transportation or sale of cocaine (count 1), possession for sale of cocaine (count 2/§ 11351), possession for sale of methamphetamine (count 4/§ 11378), and driving without a valid driver’s license (count 6/Veh. Code, § 12500, subd. (a)). In a separate proceeding, the court found true a prior conviction enhancement (§ 11370.2, subd. (a)) and revoked Valenzuela’s probation in case No. BF133733A.
On August 9, 2011, the court sentenced Valenzuela in both cases to an aggregate term of nine years eight months as follows: the upper term of five years on count 1; a three-year prior conviction enhancement on that count; a one-year term on count 2 (one third the middle term of three years); an eight-month term on count 4 (one third the middle term of two years); time served on count 6; and a concurrent three-year term on Valenzuela’s conviction for transportation or sale of cocaine in case No. BF131733A.
On appeal, Valenzuela contends: 1) the court erred in admitting a stipulation into evidence; and 2) the prosecutor engaged in prejudicial misconduct during his closing argument. We affirm.

Following a jury trial, appellant Terry Lee Hannah was convicted of making criminal threats (Pen. Code, § 422)[1] and exhibiting a deadly weapon (§ 417, subd. (a)(1)). Outside the presence of the jury, Hannah admitted that he had suffered a prior conviction for a serious and/or violent felony (§ 667, subds. (b)-(i)) and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced Hannah to an aggregate term of five years in state prison.
On appeal, Hannah contends that his constitutional right to be present at trial was violated. We agree and therefore need not address his further contention that application of section 4019 violated his equal protection rights. The judgment is reversed.

On October 28, 2009, a consolidated information was filed in Kern County Superior Court, charging defendants Allen Rivas, Hilario Torres, and Joe Coronado, Jr., with attempted premeditated murder (Pen. Code,[1] §§ 187, subd. (a), 189, 664; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). Coronado was also charged with being a felon in possession of ammunition (former § 12316, subd. (b)(1); count 4).[2] As to count 1, it was alleged Coronado personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)), and, as to Rivas and Torres, that a principal in the commission of the offense so acted (id., subds. (d) & (e)(1)). As to count 2, Coronado was alleged to have personally inflicted great bodily injury (§ 12022.7). It was further alleged, as to counts 1 through 4, that defendant(s) charged therein committed the crime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Last, it was alleged Rivas and Torres each had previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).

K.P., age two, and K.M., less than one year, became dependents as a result of long-term drug abuse and the extensive criminal histories of their parents.[1] Mother’s parental rights as to two older children had previously been terminated, so the court denied services to mother, but granted services to the father of K.M. Services to the father of K.M. were terminated at the six-month review hearing and a hearing pursuant to Welfare and Institutions Code[2] section 366.26, was set for both children. During the interval prior to the section 366.26 hearing, mother completed a three-month residential drug rehabilitation program, gave birth to another child who remained in mother’s care, and resided in a sober living home, which formed the basis for a petition to modify the prior court order pursuant to section 388. The court denied the petition and terminated parental rights. Mother appealed.
On appeal, mother challenges the denial of her section 388 petition as an abuse of discretion. We affirm.

Mother appeals from a juvenile court order terminating her parental rights under Welfare and Institutions Code section 366.26,[1] to her daughter, S.C. (born in 2005), and her two sons, J.D. (born in 2010) and J.J.D. (born in 2011). Mother contends the juvenile court failed to ensure proper notice was provided under the Indian Child Welfare Act of 1978 (ICWA) 25 U.S.C. § 1901 et seq.
Because the record on appeal does not demonstrate compliance with ICWA notice requirements, the order terminating parental rights is reversed, and the proceedings are remanded to the juvenile court to allow ICWA notice compliance. If, after proper ICWA notice, a tribe claims the children are Indian children, the juvenile court shall proceed in conformity with all the provisions of ICWA. If no tribe claims that the children are Indian children, the order terminating parental rights shall be reinstated.

Plaintiffs have elected to appeal without a reporter’s transcript. The appellate form (APP-3) notified them that “without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”
The same form instructed plaintiffs that certain required documents would be included in the clerk’s transcript. In designating additional documents to be included in the clerk’s transcript, plaintiffs designated their trial brief, their 17 trial exhibits, and an exhibit submitted by defendant. They did not designate the complaint or any other documents.

Defendant Tarius Javar Hardy broke a window to get into his girlfriend’s apartment and, after entering her home, refused to allow her to leave the apartment to get medical help for cuts she sustained from the broken glass. He also confiscated her cellular telephone so she could not call the police. Defendant was convicted of false imprisonment, first degree burglary, dissuading a witness, and misdemeanor vandalism.

On March 3, 2008, plaintiffs and respondents Charles Holdren and Raymarie Holdren filed a civil complaint against defendants and appellants Charles Raber, Dianne L. Raber, and others.. The case was tried by the trial court on June 3, 2011. Trial was held on three causes of action: (1) breach of contract; (2) fraud; and (3) constructive trust. The trial court found for plaintiffs on all causes of action and awarded them damages of $25,000. A new trial motion was denied on September 16, 2011, and judgment was entered against defendants on October 18, 2011. Defendants appeal.