CA Unpub Decisions

Any claims which arise out of a citizen's report of alleged criminal activity to law enforcement personnel are subject to a motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16. Moreover, when a citizen reports suspected criminal activity to law enforcement personnel, the communication is absolutely privileged under Civil Code section 47, subdivision (b). Here, all of plaintiff's claims against defendant arise out of defendant's report to a sheriff's department of alleged conduct by plaintiff. Accordingly, we reverse the trial court's order denying defendant's motion to strike and remand with directions to strike plaintiff's complaint and award defendant reasonable attorney fees incurred both in the trial court and on appeal.
The court's denial of Ewing's special motion to strike is reversed, and on remand the trial court is directed to enter a new order striking Stec's complaint.

Following a court trial, Francisco Ernesto Villegas was convicted of committing a lewd act upon a child (Pen. Code,[1] 288, subd. (c)(1); count 1) and oral copulation by a person over the age of 21 on a person under the age of 16 ( 288a, subd. (b)(2); count 2). The court found true allegations that in the commission of the count 1 offense, Villegas inflicted great bodily injury under sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). The court sentenced Villegas to two years in prison on count 1 and two years in prison on count 2 to run concurrent to count 1, with an additional three years for the great bodily injury enhancement. Villegas contends we should strike the enhancement because impregnation resulting from non-forcible sexual intercourse does not constitute great bodily injury. He further asks us to recalculate his presentence custody credits because absent the great bodily injury enhancement, he is entitled to an additional 75 days of credit. Rejecting Villegas's contention that pregnancy is not great bodily injury within the meaning of section 12022.7 as applied to this case, Court affirm the judgment.

Fourteen year old Edgar C. entered a negotiated admission to vandalism (Pen. Code, 594, subds. (a) & (b)(2)(A)), a misdemeanor. The juvenile court declared Edgar a ward (Welf. & Inst. Code, 602), and placed him on probation conditioned on, among other things, that he spend a period not to exceed 150 days at the Breaking Cycles program. Edgar appeals. Court affirm.

Johnathan J. Sanders entered a negotiated guilty plea to selling a person for illicit use (Pen. Code 266(f)). The trial court sentenced him to two years in prison. Sanders appeals. Court affirm.

A jury found defendant guilty of robbery (Pen. Code, 211)[1]and assault with a firearm ( 245, subd. (a)(2)). A jury also found true the allegations that defendant personally used a firearm during the commission of the robbery and assault. ( 12022.5, subd. (a), 12022.53, subd. (b).) The court sentenced defendant to 13 years in state prison. Defendant makes four contentions. First, the trial court abused its discretion by excluding third party culpability evidence. Second, the court excluded evidence of the detectives decision to use a photographic lineup rather than a live lineup, which was also an abuse of discretion. Third, there is a lack of substantial evidence to support the finding that defendant personally used a firearm. ( 12022.5, subd. (a), 12022.53, subd. (b).) Fourth, there is insufficient evidence to establish that defendant committed assault with a firearm. ( 245, subd. (a)(2).) Court disagree with all of defendants arguments and affirm.

A jury found defendant guilty of robbery (Pen. Code, 211)[1]and assault with a firearm ( 245, subd. (a)(2)). A jury also found true the allegations that defendant personally used a firearm during the commission of the robbery and assault. ( 12022.5, subd. (a), 12022.53, subd. (b).) The court sentenced defendant to 13 years in state prison. Defendant makes four contentions. First, the trial court abused its discretion by excluding third party culpability evidence. Second, the court excluded evidence of the detectives decision to use a photographic lineup rather than a live lineup, which was also an abuse of discretion. Third, there is a lack of substantial evidence to support the finding that defendant personally used a firearm. ( 12022.5, subd. (a), 12022.53, subd. (b).) Fourth, there is insufficient evidence to establish that defendant committed assault with a firearm. ( 245, subd. (a)(2).) Court disagree with all of defendants arguments and affirm.

Defendant pled guilty to attempted murder (Pen. Code, 664, 187, subd. (a), count 1) and carjacking ( 215, subd. (a), count 4).1 He also admitted that he personally used a firearm in the commission of the attempted murder ( 12022.53, subd. (b)) and that he committed the attempted murder to benefit a criminal street gang ( 186.22, subd. (b)(1)(C)). Pursuant to a plea bargain, defendant was sentenced to 25 years in state prison.
On appeal, defendant contends that the trial court abused its discretion by denying his motion to withdraw his guilty plea. If this court determines defendant waived his right to appeal the denial of his motion due to a failure to preserve it for appellate review, then defendant contends, in the alternative, that he was denied effective assistance of counsel. Defendant also contends that the abstract of judgment needs to be corrected to reflect that he did not plead guilty to first degree attempted murder.
The superior court clerk is directed to correct the abstract of judgment to reflect that defendant did not plead guilty to first degree attempted murder in count 1; rather, that he pled guilty to attempted murder that was not willful, deliberate, and premeditated. The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

A jury found defendant guilty of two counts of using force upon a police officer and one count of resisting arrest. (Pen. Code, 243, subd. (c)(2), 69.) Defendant admitted four prior prison term enhancements. (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to six years eight months in state prison. Defendants sole contention is the sentence for resisting arrest should be stayed because it resulted from the same indivisible course of conduct as the first count of using force upon a peace officer. (Pen. Code, 654.) The People support defendants arguments. Court agree.

Minor pled no contest to allegations that he committed second degree robbery (Pen. Code, 211) while personally armed with a dangerous or deadly weapon (Pen. Code, 12022, subd. (b)(1)). Pursuant to a plea bargain, minor was committed to the Division of Juvenile Justice (DJJ) for a maximum custody time of six years. Minors sole contention is that the juvenile court abused its discretion by not considering the facts and circumstances of his case when establishing his maximum custody time. (Welf. & Inst. Code, 731, subd. (b).) The judgment is affirmed.

Following a jurisdictional hearing, the juvenile court found true the allegation that minor committed misdemeanor battery. (Pen. Code, 242.) Minor was declared a ward of the court and granted formal probation. Minor contends that he should have been placed on informal probation, which could have occurred at two separate points in the proceedings. First, minor asserts that prior to a petition being filed, the probation officer that evaluated his case abused her discretion by using improper factors in deeming him unsuitable for informal probation. (Welf. & Inst. Code, 654.) Second, minor contends that after the petition was filed, but prior to the court making a true finding, the juvenile court should have exercised its discretion to refer the case back to the probation department for informal supervision. (Welf. & Inst. Code, 654.2; In re Adam R. (1997) 57 Cal.App.4th 348, 352-353 [Welf. & Inst. Code, 654.2 informal probation is available postpetition, but must be implemented before adjudication of the charges].) Minor requests the juvenile court be directed to set aside the true finding and place minor on informal probation. The judgment is affirmed.

Appellant Wesley L. Wilson was convicted by a jury of possession of marijuana for sale (Health & Saf. Code, 11359) and was sentenced to three years probation, the first of which to be served in the Kern County Jail. Appellant appeals, alleging insufficient evidence regarding the narcotic nature of the substance found in his possession. For the following reasons, the judgment affirmed.

The court adjudged appellant, Alex R., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging him with felony arson (Pen. Code, 451, subd. (c)) and unlawful possession of a cigarette lighter (Pen. Code, 308, subd. (b)), an infraction. On September 28, 2006, the court ordered Alex to serve 6 days in juvenile hall and 31 days on house arrest. On appeal, Alex contends the court erred in: 1) designating his possession of drug paraphernalia offense a misdemeanor rather than an infraction; 2) imposing a 10 percent administrative fee on its restitution order; and 3) admitting certain hearsay statements. Court find merit to Alexs first two contentions and direct the court to correct the judgment accordingly. In all other respects Court affirm.

A jury found Jason Robert Neel[1](appellant) not guilty of first degree murder, but guilty of the lesser offense of second degree murder (Pen. Code, 187, subd. (a))[2]in count 1. It found true two special allegations appended to that count: that appellant used a firearm ( 12022.5, subd. (a)) and that he discharged a firearm that caused bodily injury or death in the commission of the offense ( 12022.53, subd. (d)). The jury also found appellant guilty of possession for sale of methamphetamine (Health & Saf. Code, 11378) in count 2. Appellant pleaded no contest to being a felon in possession of a firearm ( 12021, subd. (a)) in count 3. He admitted that he had suffered a prior prison term within the meaning of section 667.5, subdivision (b) charged as an enhancement attached to each count.
Appellant claims various sentencing errors. Court agree with appellant that the section 12022.5, subdivision (a) gun use enhancement must be stricken. Court conclude that the section 667.5, subdivision (b) enhancement attached to count 2 must be stricken. Court agree with both parties that the abstracts of judgment must be corrected in various ways. In all other respects, the judgment is affirmed.

Tracy Brennan petitioned for a writ of mandate (Code Civ. Proc., 1085), seeking a declaration that the Board of Trustees (the Board) of the Anaheim Union High School District (the District) violated the Ralph M. Brown Act (Gov. Code, 54950 et seq., hereafter, the Brown Act) when it met in closed session and decided not to renew her term as an Assistant Superintendent of the District. She contended the closed session involved a hearing of specific complaints or charges against her and thus she was entitled to 24 hours notice of her right to have specific complaints or charges heard in public. (Gov. Code, 54957.) The trial court denied the petition. On appeal, Brennan contends the courts ruling is not supported by substantial evidence. Court find no error and affirm the judgment.