CA Unpub Decisions

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor A.A. was within the provisions of Welfare and Institutions Code section 602 in that he had committed two counts of carjacking (Pen. Code, 215; further undesignated statutory references are to the Penal Code; counts one & two), two counts of robbery ( 211; counts three & four), and two counts of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); counts five & six). The minor was adjudged a ward of the juvenile court and committed to the Sacramento County Boys Ranch under the supervision of the probation department. On appeal, the minor contends the evidence supporting the juvenile courts determination is insufficient as a matter of law. Court affirm the judgment.

Plaintiffs appeal the trial courts orders granting the two motions to quash (Code Civ. Proc., 418.10, subd. (a)(1)) brought by Blue Lake Housing Authority (Blue Lake) and by Blue Lake as successor in interest to J & L Properties on the grounds of tribal sovereign immunity. Plaintiffs contend the trial court erred in extending tribal sovereign immunity to activities involving a non-tribal construction company constructing non-tribal housing for sale on non tribal land and by failing to find the sales contract effected an express waiver of any sovereign immunity. Court affirm the order granting the motions to quash.

Defendant entered a negotiated plea of no contest to driving under the influence causing injury, a felony, and admitted a prior strike in exchange for dismissal of one remaining count and three additional prior strike allegations against him. Imposing the upper term, the trial court sentenced defendant to six years in state prison. On appeal, defendant contends imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). As defendant failed to obtain a certificate of probable cause Court dismiss the appeal; in any event, defendants claim on appeal lacks merit.

Jefferson A. McGee, in pro per, appeals from the dismissal of his complaint for wrongful eviction after he failed to comply with superior court case management program guidelines. There was no error. Court affirm the judgment.

Plaintiff Kevin McGarry's employment was terminated by the University of San Diego (University) as its head football coach in 2003. McGarry subsequently filed a lawsuit against University seeking damages for employment termination and against University and others for defamation. The employment termination aspect of McGarry's lawsuit is not involved in the present appeal. The present appeal involves McGarry's claims against University and two University officials, Robert Pastoor and Mary Lyons, for defamation. These claims were premised first on statements contained in a newspaper article (the article), published in the San Diego Union Tribune (Newspaper) two days after McGarry's employment was terminated, reporting the reasons for the termination. McGarry's defamation claims were secondarily premised on statements made by Lyons during a meeting with parents of members of the football team concerning McGarry's employment termination. All defendants filed motions to strike the defamation claims pursuant to Code of Civil Procedure section 425.16,[1] commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The hearing on the motions was continued to permit limited discovery. McGarry moved to compel the deposition of Newspaper's reporters to question them about the article, but the trial court denied the motion pursuant to the so-called "Shield Law."[2] The trial court ultimately granted defendants' anti SLAPP motions to strike the defamation claims.
On appeal, McGarry argues the anti SLAPP law was inapplicable because neither the statements to the press nor the statements to the parents qualified as protected conduct under the anti SLAPP law. He alternatively asserts that, even if the anti SLAPP law does apply, the trial court's ruling must be reversed for two distinct reasons. First, he argues that, insofar as his defamation claim was rooted in the statements to the parents, he demonstrated a probability of success on the merits. Second, he argues that, insofar as his defamation claim was rooted in the statements in the article, the trial court's application of the Shield Law was error and had the effect of precluding him from discovering evidence necessary to satisfy his burden to show a likelihood of success on the merits of his claim.

A jury convicted Jose Alfredo Pina of first degree murder (Pen. Code, 187, subd. (a).) and found true allegations that he personally and intentionally discharged a firearm proximately causing death. ( 12022.5, subd. (a), 12022.53, subds. (c), (d).) The court sentenced defendant to an indeterminate prison term of 50 years to life, consisting of 25 years to life for the murder count plus 25 years to life on the firearm use allegation. On appeal, defendant contends (1) he was denied his Fourteenth Amendment due process rights because the evidence at trial was insufficient to support his conviction for first degree murder; (2) the trial court prejudicially abused its discretion in showing the jury a photograph of his tattoo to aid a witness's identification (3) the trial court erroneously denied his request to present third party culpability evidence (4) the prosecutor committed prejudicial misconduct during his closing argument; (5) the trial court erred by denying his motion for new trial based on juror bias/taint; and (6) his 25 year to life sentence on the firearm allegations constitutes cruel and unusual punishment under the state and federal Constitutions. Court reject these contentions and affirm the judgment.

In 1997 Robert C. Wheeler was charged with attempted murder (Pen. Code, 664, 187, subd. (a)) and inflicting corporal injury on his spouse ( 273.5, subd. (a)). After the court ordered him held to answer on the charges, a reviewing court dismissed the charges. ( 995.) Almost nine years later, in May 2006, Wheeler filed a motion to
seal and destroy the arrest record. ( 851.8.) The court held a hearing and denied the motion. Wheeler contends this was error.

Nina G. and Joshua D. (together the parents) appeal orders declaring their minor children Anthony C., Xavier D., Jonathan D., Keanu D. and Christian D. (collectively the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing the minors from parental custody under section 361, subdivision (c)(1). The parents challenge the sufficiency of the evidence to support the court's jurisdictional orders which were based on findings of domestic violence and unsanitary conditions in the home. Court affirm the orders.

A jury convicted defendant of second degree murder (Pen. Code, 187, subd. (a)), during which he discharged a firearm, proximately causing death (Pen. Code, 12022.53, subds. (b), (c), (d) & (e)). The jury also convicted him of possessing cocaine base and marijuana for sale (Health & Saf. Code, 11351.5, 11359), possessing cocaine (Health & Saf. Code, 11377) and possessing a sawed-off shotgun (Pen. Code, 12020, subd. (a)). The jury found that each of these offenses had been committed to benefit a criminal street gang (Pen. Code, 186.22, subd. (b)(1)) and the possession for sale of cocaine had occurred within 1000 feet of a high school. (Health & Saf. Code, 11353.6, subd. (b).) Defendant was sentenced to prison for 11 years, plus 15 years to life plus 25 years to life. He appeals, claiming his motion for severance should have been granted, certain evidence should not have been admitted, his conviction of count III (possession of cocaine) is improper, insufficient evidence supports some of the convictions and a true finding and sentencing error occurred. The People agree that defendants conviction for possession of cocaine is in error and, therefore, we reverse it. Court also agree with defendants contention that insufficient evidence supports the true finding that he possessed cocaine
for sale within 1000 feet of a high school. Therefore, Court reverse that finding and its attendant four year sentence. Court also direct the trial court to correct errors in the abstract of judgment and minutes of the sentencing hearing. Otherwise, Court reject defendants contentions and affirm.

Defendant, as one of the trustees of the Parlan L. Edwards and Gloria Renico Edwards Family Trust (the Trust), appeals certain postjudgment orders of the Superior Court in an action brought by plaintiff and respondent Bear Creek Master Association (Bear Creek). For the reasons which follow, Court affirm.

A jury convicted defendant of one count of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). It also found that defendant committed the crime for the benefit of, at the direction of, and in association with, a criminal street gang, with the specific intent to promote, further, and assist gang members in criminal conduct, within the meaning of Penal Code section 186.22, subdivision (b).
Defendant appeals. Although he does not contest the sufficiency of the evidence supporting the conclusion he sold drugs, and the jurys conclusion that the sales benefited a criminal street gang, he does challenge the sufficiency of the evidence to allow the jury to conclude that he sold the drugs with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).)
He also contends that the trial court abused its discretion in denying his motion for a new trial. The motion was based on the allegation that the jury foreman misadvised the jurors about the elements which had to be found before they could make a true finding on the enhancement.
Finding no error, Court affirm.

A jury convicted defendant of one count of first degree burglary. (Count 1 Pen. Code, 459). After a bifurcated trial, the jury also found true allegations that defendant had suffered eight prior strike convictions ( 667, subds. (b)-(i), 1170.12 subds. (a)-(d)), two of which qualified as serious felonies ( 667, subd. (a)(1)), and a ninth prior conviction for which he had served a prison term and failed to remain free from custody for five years ( 667.5, subd. (b)). Prior to sentencing, defendant unsuccessfully moved to dismiss his prior strike convictions. The court sentenced defendant to an indeterminate term of 36 years to life, consisting of a 25 year to life term on the burglary conviction; two consecutive five-year terms for the prior serious felony convictions; and one additional consecutive year for the prior prison term. On appeal, defendant contends the trial court abused its discretion in denying his motion to strike his prior strike convictions and, in the alternative, that his sentence is violative of the California and United States Constitutional prohibitions against cruel and unusual punishment. Court find defendants claims without merit and, therefore, affirm the judgment in its entirety.

A modification decision.

Appellant was charged with four felony counts following a violent confrontation with M. (the victim) on April 9, 2005: infliction of corporal injury resulting in traumatic condition upon the victim, who was then the spouse/cohabitant of appellant (Pen. Code, 273.5, subd. (a) [count 1]), assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1) [count 2]), false imprisonment by means of violence, menace, fraud, and deceit (Pen. Code, 236 [count 3]), and threatening to commit a crime which would result in death or great bodily injury (Pen. Code, 422 [count 4]). He was also charged with using force and violence upon the victim for an incident on March 21, 2005 (Pen. Code, 243, subd. (e)(1) [count 5]). A jury trial ensued and the jury found appellant guilty of counts 1, 3, 4 and 5. The jury found appellant not guilty of count 2 as charged in the information, and instead found him guilty of the lesser included misdemeanor offense of simple assault (Pen. Code, 240). Appellant now challenges the admission of certain evidence, as well as the sentence imposed. Court conclude that no prejudicial error resulted from the trial courts evidentiary rulings, but remand for resentencing.