CA Unpub Decisions

Defendant was charged with one count of possession of methamphetamine (count 1 Health & Saf. Code, 11378.) It was further alleged that defendant had suffered three prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (c), and two prior prison terms pursuant to Penal Code section 667.5, subdivision (b). Defendant pled guilty to count 1, and admitted one of the prior convictions, and both prior prison terms. The court, pursuant to the parties stipulation, dismissed the remaining allegations. Defendants plea agreement specified that she would serve a seven-year prison commitment consisting of the middle term of two years on count 1, one year on each of the prior prison term allegations, and three years on the prior conviction. The court pronounced sentence as specified in the plea agreement. However, both the minute order of sentencing and the abstract of judgment reflect that the court sentenced defendant to the middle term of two years, doubled to four years pursuant to Penal Code sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) on count 1; one year each for both of the admitted prior prison terms; and one year for the admitted prior conviction, for a total term of seven years imprisonment.

After prevailing in a lawsuit brought against her by Jocer Enterprises, Inc., Laura Attig filed an action for malicious prosecution against Jocer Enterprises and its owners, Spencer Graffam and Jodi Graffam (collectively defendants). Defendants filed a motion under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., 425.16). The trial court denied the motion and found that Attig established a reasonable probability of prevailing on the merits.
In challenging the trial courts decision, defendants claim that the court erred in finding that Attig provided sufficient evidence to support her allegations against the individual defendants. Defendants also claim that the court erred in finding that Attig presented evidence to establish that defendants acted with malice in initiating and maintaining the underlying action. Defendants specifically argue that the court erroneously relied on its prior decision granting Attigs motion for attorneys fees based on Castlebrooks bad faith as conclusive proof of malice both for purposes of defeating defendants anti SLAPP motion and for purposes of trial. Defendants also object to the trial courts award of attorneys fees. For the reasons discussed below, Court affirm the trial courts ruling denying defendants anti SLAPP motion, but reverse the ruling awarding Attig attorneys fees.

This juvenile dependency case concerns two very young children who were removed from parental custody because of their parents drug use and criminal activity. The juvenile court provided six months of reunification services and then terminated services and parental rights. The court also denied the mothers petition under Welfare and Institutions Code section 388. This appeal involves the following questions: whether the juvenile court erred in denying the mothers petition, and whether the court complied with the procedural requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.).
Court conclude that substantial evidence supported the juvenile courts finding that the reinstatement of reunification services would not have been in the childrens best interests. As to the second question, we conclude that parents cannot demonstrate any prejudicial error under ICWA. Court affirm the juvenile courts findings and orders.

On May 24, 2002, the Fresno County District Attorney filed an information in superior court charging appellant Melvin Estiwar Jacome as follows: count Iattempted murder of a peace officer/firefighter further alleging that the offense was willful, deliberate and premeditated (Pen. Code, 187, subd. (a), 664, subds. (e), (f)); count IIuse of a machine gun/assault weapon on a peace officer/firefighter ( 245, subd. (d)(3)); count IIIevading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)); and count IVpossession of an assault weapon ( 12280, subd. (b)). As to counts I and II, the district attorney specially alleged appellant intentionally discharged a firearm ( 12022.53, subd. (c)); personally used a firearm in a statutorily specified offense ( 12022.53, subd. (b)); and personally used a firearm in the attempted commission of a felony (then 12022.5, subd. (a)(1)).
The convictions of the substantive crimes in counts I, II and III and each of the attendant findings and enhancements are affirmed. The sentence imposed is vacated and the matter is remanded to the trial court to allow appellant to file within 30 days of the date of remittitur a motion pursuant to People v. Pitchess, supra, 11 Cal.3d 531. If appellant fails to timely file such motion or if adjudication of such motion fails to yield relevant information in the personnel files of the three police officers in question resulting in the filing by appellant within the next succeeding 30 days of a renewed motion for new trial based on such relevant information, then the trial court may simply reinstate the sentence imposed on May 9, 2006. If such a motion for new trial is filed, the trial court shall proceed accordingly exercising its broad statutory discretion to determine whether a new trial should be granted. If the superior court declines to order the case retried it reinstate the sentence imposed on May 9, 2006.

A modification decision.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the dispositional orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter D. Court grant the petition.

Petitioners ask this court to annul a decision of the Workers Compensation Appeals Board (WCAB) in which the WCAB concluded it did not have jurisdiction to review a second petition for reconsideration erroneously filed at the Fresno office of the WCAB and not timely received by the WCAB in San Francisco. Agreeing with the WCAB, Court deny the petition and remand for supplemental attorney fees.

Quentel Lamont Randolph appeals from the judgment sentencing him to the midterm of three years in prison after he pleaded guilty to inflicting corporal injury on the mother of his child in violation of Penal Code section 273.5, subdivision (a). On appeal, he contends the court abused its discretion by imposing the midterm of three years when there was a factor in mitigation present. Alternatively, he contends his attorney rendered ineffective assistance of counsel by failing to object to the midterm sentence. Court affirm.

Catherine Monson and James Netterville, IV, were married in 1991 and divorced in 2005. Their divorce was embodied in a stipulated judgment. Both represented themselves, though there is evidence in the record that they had access to legal help in preparing the paperwork. (Netterville was in contact with a legal assistant/law clerk at a law firm in the Irvine area, while Monson had access (in the words of Nettervilles legal assistant) to her company lawyer.) Netterville had been employed in the video industry, mostly in sales work but sometimes in management, through most of the marriage. Judging by the W-2 forms in the record, he earned a respectable upper-middle income (generally near six figures in the 1990s) working for Disney, Paramount, and finally Toon Boom Technologies during that time. He lost regular employment in early 2004, though he continued to obtain income as an independent contractor with Toon Boom until November of that year. After that, he stayed home and worked on various home improvement projects. Monson worked as an executive for a printing company throughout the marriage.
The motion was denied. Netterville, now represented by counsel, has timely filed this appeal from the order of denial. For the reasons stated below, Court affirm, except for a $2,000 attorney fee order.

Robert Paul appeals from the judgment of the superior court in favor of his former employer, One Touch Technologies (One Touch), denying Paul relief on his complaint to recover overtime compensation because he was exempt under the administrative exemption. Paul contends the judgment is not supported by substantial evidence. Court affirm.

Defendant Oliver M. was declared a ward of the court and placed on probation after the court found he committed an assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) His appeal alleges that, as a matter of law, there is insufficient evidence to support the finding of an assault because he made no attempt to complete the battery. The judgment is affirmed.

After being charged with five separate sex crimes, defendant Craig John Papero entered into a plea bargain in 2001. He pleaded guilty to one count of sexual intercourse with a minor (Pen. Code, 261.5, subd. (c); all further statutory references are to the Penal Code), one count of oral copulation with a minor ( 288a, subd. (b)(1)), and one count of lewd act upon a 14 or 15-year-old minor ( 288, subd. (c)(1)). In return for his guilty plea, he agreed to probation and a suspended sentence as follows: on the sexual intercourse with a minor count, state prison for the upper term of three years; on the oral copulation with a minor count, a concurrent upper term of three years; on the lewd act, a concurrent upper term of three years.
Almost four years later, defendant violated conditions of his probation, which the court revoked and then imposed the previously suspended three-year prison sentence. It was only after this order was entered and he obtained a certificate of probable cause that defendant filed a notice of appeal. He raises only one issue: the legality of his sentence to the upper terms under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The judgment is affirmed.

Donald Lee Valencia pled guilty to possession and transportation of heroin found inside his car during a search that took place in the course of a routine traffic stop. He was ordered to serve eight years in prison.[1] Valencia argues on appeal that his motion to suppress evidence found during the search should have been granted because the arresting officer violated Valencias Fourth Amendment right to be free from unreasonable searches and seizures by unduly prolonging the detention. Court conclude that (1) Valencias constitutional rights were not violated when the arresting officer took reasonable measures to ascertain why Valencia was unable to provide proof of insurance upon request, and (2) in any event, Valencia consented to the search. Accordingly, the motion for suppression was properly denied.

Defendant was charged with three drug-use or possession violations along with violation of Vehicle Code section 14601.2, subdivision (a), driving while his license was suspended or revoked as a result of a previous conviction of driving under the influence (DUI). At trial, defendant moved under Penal Code section 1385 to dismiss the Vehicle Code violation in order to make him eligible for probation and drug treatment under Proposition 36The Substance Abuse and Crime Prevention Act of 2000. The court denied the motion and defendant was subsequently convicted by a jury on all counts. He later received a prison term of three years. On appeal, defendant contends that the court abused its discretion in refusing to dismiss the Vehicle Code violation since that was the only obstacle in the way of his Proposition 36 eligibility, and he as well as society would benefit from him, an addict, undergoing drug rehabilitation. He further contends that he received ineffective assistance of counsel for his attorneys failure to have renewed the motion to dismiss at sentencing. Court reject these contentions and affirm the judgment.