CA Unpub Decisions

Appellants Jeffrey and Barbara Van Schaick appeal the order denying their special motion to strike the complaint of respondents Mark and Teresa Dilbeck. They contend the trial court erred in ruling that the Dilbecks action was not a strategic lawsuit against public participation (SLAPP). Court conclude the Dilbecks complaint does not arise from acts undertaken in furtherance of the Van Schaicks rights of free speech or petition, and therefore, affirm.

Garret L. Swearingen appeals from a judgment placing him on felony probation after he pled guilty to possession of methamphetamine (Health & Saf. Code, 11377). He contends the trial court erred in denying his motion to suppress evidence (Pen. Code, 1538.5) because it was the fruit of an unlawful patdown search for weapons, as contemplated by Terry v. Ohio (1968) 392 U.S. 1. Court agree and, accordingly, reverse.

Louise B. has three minor children, a son and two daughters. They were removed from their parent's custody due the parents' failure to protect, inability to provide support and exposure to domestic violence. Mother seeks extraordinary writ review of an order of the juvenile court setting the matter for a hearing terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, 366.26.)Reunification services were denied to father, who is not a party to the writ proceeding. Court deny the petition.

In an opinion filed on February 27, 2006, we affirmed the judgments in full. After granting a petition for writ of certiorari, the United States Supreme Court vacated the judgment and remanded the cause to us for further consideration in light of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). We recalled the remittitur and the parties filed supplemental briefs on the effect, if any, of Cunningham on this case. Court again affirm the judgments.

This case comes before us upon transfer from the Appellate Department of the Nevada County Superior Court. (Cal. Rules of Court, rule 8.1000 et seq.) The Appellate Department affirmed the trial courts order dismissing a complaint accusing defendant Dale Traylor of misdemeanor vehicular manslaughter. (Pen. Code, 192, subd. (c)(2); further undesignated statutory references are to the Penal Code.) The trial court determined that the charge had previously been dismissed, as a felony, pursuant to section 871, and thus was barred by section 1387 as construed in Burris v. Superior Court (2005) 34 Cal.4th 1012 (hereafter Burris). Court certified two issues for transfer.

Defendants Transpack Corporation (Transpack) and Buckley & Associates, Inc. (Buckley) obtained judgment in their favor after prevailing on a motion for summary judgment against plaintiffs Craig and Christina Clark. The action was filed after (1) the Clarks defaulted on a secured loan owned by Transpack and (2) Buckley, acting as trustee, sold the property. In their main headings in their opening brief on appeal, the Clarks assert the trial court erred by concluding (1) they could not obtain legal remedies as a result of the trustees sale because they did not tender to Transpack the full amount of their indebtedness, (2) the facts did not support a cause of action for wrongful foreclosure, and (3) the facts did not support causes of action for negligence, fraud, and the breach of the covenant of good faith and fair dealing. Although the legal arguments in the briefs do not necessarily match the main headings, Court nevertheless find that the Clarks have failed to establish that the trial court erred by granting summary judgment.

In 1981, defendant Christopher John Thomas was charged with attempted murder. (Pen. Code, 187, 664; unspecified statutory references that follow are to the Penal Code.) Defendant was found not guilty by reason of insanity because, at the time of the incident, defendant, acting under the delusion that his victim had killed defendants sister, struck his victim in the head with a hammer. Defendant was committed to the state hospital and that commitment has been extended on three occasions since his original commitment expired on June 24, 2000. This appeal follows an order entered in 2005 extending defendants commitment once again for an additional two years.
Defendant contends in the matter before us that the trial court failed to consider whether he has serious difficulty in controlling his dangerous behavior, a finding required on recommitment. Court agree, but, under the circumstances, Court find the error harmless beyond a reasonable doubt and affirm the judgment.

A jury found defendant Jason Leroy Cooper guilty of first degree murder with special circumstances and conspiracy to commit murder and also found true enhancements attached to both counts. The court sentenced him to life without the possibility of parole for the murder with special circumstances, a consecutive 25 years to life for the conspiracy, and additional terms for the enhancements. On appeal, defendant contends the trial court erred in: (1) retaining a juror who was allegedly sleeping during trial; (2) imposing punishment for conspiracy to commit murder in light of the punishment for murder; and (3) imposing the upper term on the enhancement for personal use of a firearm in violation of his right to a jury trial. Agreeing only with defendants second contention, Court modify the sentence and affirm the judgment as modified.

Defendant James Henry Simmons appeals from his convictions for two counts of forcible oral copulation (Pen. Code, 288a, subd. (c)(2)) and one count of oral copulation with a person under 18 years of age ( 288a, subd. (b)(1)). He contends the trial court erred in summarily dismissing his request to disclose juror identifying information, the trial court abused its discretion in denying his motion for a new trial, and the trial courts delivery of the CALJIC instruction on reasonable doubt rather than the CALCRIM instruction resulted in structural error. Court are not persuaded by defendants claims and affirm.

During an argument with Christopher Best, the ex-husband of defendant Paul Michael Tuceys current paramour, defendant threatened to cut or stab Best with a bowie-type knife. Defendant was charged with assault with great bodily injury and with a deadly weapon, and exhibiting a deadly weapon. On March 9, 2007, the information was amended to include a third count of making criminal threats. Defendant pled no contest to one count of making criminal threats in case No. 06F6423 and admitted a violation of probation in case No. 03F9204. As part of the plea, the remaining charges were dismissed and it was agreed defendant would be sentenced to concurrent prison terms of two years in each case. Defendant was sentenced in accordance with the plea agreement. Defendant sought a certificate of probable cause which was denied. Defendant appeals.

Errol Kiyomasa Nakamura appeals a judgment arising out of his conviction of assault with a deadly weapon with force likely to cause great bodily injury. He contends that (1) the trial court erred in (A) refusing to admit into evidence an unredacted copy of his cell phone record for the date of the incident; (B) refusing to allow him to authenticate the record; and (C) finding that he failed to exercise due diligence relating to the production of a witness for trial; and (2) the prosecutor committed reversible misconduct during voir dire and in closing argument. Court find his arguments unavailing and affirm.

A jury found Juan Manuel Cota guilty of grand theft of an automobile (Pen. Code,[1] 487, subd. (d)(1)) (count 1); unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) (count 2); receiving, concealing, or withholding a stolen vehicle ( 496d) (count 3); and misdemeanor giving false information to a peace officer ( 148.9, subd. (a)) (count 4). Cota waived his right to a jury trial on allegations of a prior section 496d conviction ( 666.5, subd. (a)) as to each of the first three counts; in a bifurcated hearing the court found these allegations true.
The court sentenced Cota to three years in prison: the three-year middle term for grand theft of an automobile, stayed terms ( 654) for unlawful driving or taking of a vehicle and receiving a stolen vehicle, and credit for time served for giving false information to a peace officer. Cota appeals, contending his convictions of unlawful driving or taking of a vehicle and receiving a stolen vehicle must be reversed because they are based on the same conduct as his conviction of grand theft of an automobile. The People concede the point.

Baby Boy L. appeals following a contested special hearing to address his placement. Baby Boy L. asserts that the juvenile court abused its discretion by ordering that he be placed in foster care rather than with his maternal grandparents, pursuant to Welfare and Institutions Code section 361.3, which requires that the court give preferential consideration to relatives who request that dependent children be placed with them. Court reverse the court's order.

Magnolia G. appeals from a March 2007 superior court order terminating her parental rights (Welf. & Inst. Code, 366.26) to three of her five children.[1] On the figurative eve of the section 366.26 hearing, which the court had twice continued, appellant retained counsel to substitute in place of her court-appointed attorney. In this appeal, she criticizes the court for its handling of continuance motions brought by her new counsel. She also contends he was ineffective. According to appellant, retained counsel should have pursued an order returning the childrens custody to her. In addition, she claims, he should have argued termination was detrimental based on sibling relationship ( 366.26, subd. (c)(1)(E)). On review, Court disagree and affirm.