CA Unpub Decisions

Plaintiff and appellant Optima Funding, Inc. (Optima) commenced an action against defendants Jimmy Sutton, Mark Klein and Wayne Strang (Strang) under the Unfair Practices Act (Cal. Bus & Prof. Code, 17200 et seq.) (Unfair Practices Act) for allegedly manufacturing evidence to bring small claims actions against businesses and individuals such as Optima, under the Federal Telephone Consumer Protection Act (47 U.S.C., 227 et seq.) (TCPA). The trial court granted defendant Strangs motion to strike the complaint under Code of Civil Procedure section 425.16 (anti SLAPP statute). Court affirm the trial courts determination.

Portfolio Recovery Associates appeals from an order setting aside a default and default judgment entered against Keith A. Robinson and Annette L. Robinson, respondents. Appellant contends that the trial court abused its discretion. Court affirm.

Appellant Mitsubishi Power Systems, Inc. (Mitsubishi) appeals from a trial court order granting respondents Wayne Schroeder (Schroeder) and Heather Ottens (Otten) motions to quash service of summons. Court determine that Mitsubishi has shown evidence of sufficient minimum contacts to establish the California courts specific personal jurisdiction over respondents. Court therefore reverse the trial court order granting the motions to quash service of summons.

Plaintiff seeks relief from a default judgment taken against him in a libel suit, on the grounds of insufficient service of the summons and complaint. At trial, plaintiff testified that he was not served with the libel suit, though he is defendants next-door neighbor, and defendant has known plaintiffs mailing address since 1977. The evidence showed that defendant applied for a court order allowing service by publication, using a misspelling of plaintiffs name.
The trial court granted judgment in favor of defendant at the close of plaintiffs case, ostensibly because plaintiff did not show why service was bad. The court apparently believed that plaintiff had to prove a negativethat he was not servedinstead of obliging defendant to prove that plaintiff was properly served. Court reverse.

Petitioner Tracey C. is the father of T.C. (born February 2005), who is a dependent of the juvenile court. Under California Rules of Court, rule 8.452, petitioner filed a petition for extraordinary writ seeking review of the juvenile courts February 6, 2007 ruling terminating reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. Petitioner essentially contends there is no substantial evidence to support the courts ruling because he complied with the case plan. The Los Angeles County Department of Children and Family Services (DCFS) opposes the granting of relief. T.C., through the childs counsel, also opposes any relief. Court conclude substantial evidence supports the juvenile court ruling. Accordingly, Court deny the petition.

In March 2003, defendant Susan Jeanette Cooper pleaded guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code, 11550, subd. (a)), and admitted a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, subd. (a)-(d)). Imposition of sentence was suspended and defendant was placed on five years of drug treatment probation pursuant to Proposition 36. (Pen. Code, 1210.1 et seq.)
The matter is remanded to the superior court with directions to prepare an amended abstract of judgment reflecting the trial courts award of 306 days of presentence custody credit and to forward a copy to the Department of Corrections and Rehabilitation. If this has already been done, defendant should be so notified. The judgment is affirmed.

A jury convicted defendants Jose Luis Contreras and Victor Manuel Garcia of assault with a deadly weapon with malice aforethought by a prisoner serving a life sentence (count one); assault with a deadly weapon, a sharp instrument (count two); and possession of a sharp instrument while in a penal institution (counts three and four, respectively). (Pen. Code, 4500, 245, subd. (a)(1), 4502, subd. (a), respectively.) Various enhancement allegations were found true as well, including the personal infliction of great bodily injury. ( 12022.7, subd. (a).)
Contreras contends: (1) the second alternative of CALJIC No. 17.20 (which sanctions a finding of personal infliction of great bodily injury in the group assault-cumulative injury context) is legally improper; (2) the sentence on count three must be stayed under section 654; and, in a supplemental brief, (3) the conviction on count two must be reversed because it is a necessarily included offense to count one. The People agree with Contreras regarding contentions (2) and (3). And, in his reply brief, Contreras acknowledges that the state Supreme Courts recent decision in People v. Modiri (2006) 39 Cal.4th 481 (Modiri) has rejected his argument in contention (1).

Garcia contends: (1) there is insufficient evidence of an intent to kill to sustain the finding of malice aforethought for count one; and (2) the trial court erred in refusing to allow the jury to examine the weapon allegedly used by him. Court disagree with these contentions.
Accordingly, Court reverse count two as to both defendants, stay the concurrent sentence imposed on count three (Contreras) and on count four (Garcia), and otherwise affirm the judgment.

S.R., a minor, appeals from an order of the juvenile court declaring her a ward of the court and placing her on home probation based upon a finding she obstructed a police officer in the performance of her duties (Pen. Code, 148, subd. (a)(1) [hereafter section 148(a)(1)]).[1] The court found a charge of child endangerment ( 273a, subd. (b)) not true.
The minor contends reversal of the finding that she violated section 148(a)(1) is required because (1) the evidence is insufficient to support the sustaining of the charge, and (2) the probation department and juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). Court reject the contentions and affirm the courts order.

A jury convicted defendant Frank Glen Alvarez of second degree murder and found that he personally used a deadly weapon, a knife, to commit the offense. (Pen. Code, 187, subd. (a), 12022, subd. (b)(1).)[1] In a bifurcated proceeding, the trial court found that defendant had 10 prior serious felony (strike) convictions. ( 667, subds. (a), (b)-(i), 1170.12.)

Sentenced to a prison term of 61 years to life, defendant appeals. He contends the trial court erred (1) in failing to instruct on its own motion on the effect of a prior assault by the victim against him (and, if not an error, claims his counsel was ineffective in failing to request this instruction, as well as one on voluntary intoxication); (2) in instructing with CALJIC No. 5.31 (defending against a fist assault; (3) in instructing with CALJIC No. 8.72 (juror unanimity and giving the benefit of doubt to manslaughter); (4) in finding a prior conviction for assault with a deadly weapon to be a serious felony; and (5) in awarding one less day of presentence custody credit. The People concede the last point and Court agree. .

A jury convicted Ernest Gerald Benefiel of four counts of assaulting a police officer with a firearm and found true the allegations Benefiel personally used and discharged a firearm. (Pen. Code, 245, subd. (d)(1), 12022.53, subd. (c), & 12022.5, subd. (a).) The court sentenced him to a prison term of 27 years 4 months, comprised of four years on one count and two on another, enhanced by 20 years for discharging a firearm and 16 months for using it. Benefiel contends the court erred by permitting the prosecution to deploy a flash bang device in a demonstration to the jury, and the error was prejudicial. Court agree and reverse the judgment.

Manuel Tellez, Jr., was charged with violating Penal Code. section 273.5, subdivision (a), Health and Safety Code section 11359, Health and Safety Code section 11377, subdivision (a), and Penal Code section 417, subdivision (a)(1). The information alleged Tellez committed two prior serious or violent felonies (Pen. Code, 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and suffered two prior prison sentences (Pen. Code, 667.5, subd. (b)). He was found guilty as charged on the domestic violence count, the methamphetamine count, and the brandishing count. On the marijuana for sale count, he was convicted of the lesser included offense of simple possession. Tellez waived his right to a jury trial and admitted the prior allegations. He timely appealed.
Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

The Santa Clara County District Attorney charged appellant Armando Garcia by information with assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(l), count one), battery with serious bodily injury ( 242, 243, subd. (d), count two),[1] grand theft from a person ( 484,487, subd. (c), count three), possession of a billy ( 12020, subd. (a)(l), count four), and petty theft with priors ( 666, count five). As to count one, the information alleged that appellant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). As to count two, the information alleged that appellant inflicted great bodily injury within the meaning of sections 667 and 1192.7. In addition, the information alleged that appellant had suffered one prior robbery conviction and had served a prior prison term ( 667, subd. (a), 667, subds. (b)-(i), 667.5, subd. (a)).
Court agree with appellant that Court strike the prison prior enhancement. However, Court disagree with appellant's remaining contentions. Accordingly, court affirm the judgment.

A modification decision.

We issued a writ of review in this matter to consider an administrative decision revoking the petitioners liquor license. Applying recent California Supreme Courtprecedent, Court now reverse the revocation.