CA Unpub Decisions

Plaintiff appeals from a judgment entered after the trial court granted a special motion to strike brought by defendants under the anti-SLAPP statute.[1] (Code Civ. Proc., 425.16.) Joyner contends the trial court erred in granting defendants anti-SLAPP motion because defendants failed to show the defamatory postings concerned a matter of public interest, and the trial court previously had granted Joyners preliminary injunction request, which required the court to find Joyner had demonstrated a probability of success on the merits. Joyner further contends the trial court awarded excessive attorney fees to defendants and erred in dismissing the entire complaint, issuing discovery sanctions, and ordering postjudgment examinations.
Although the alleged defamatory statements were made in a public forum, they were not made in connection with an issue of public interest. (See 425.16, subd. (e)(3).) Accordingly, Court conclude the complaint does not fall within the anti-SLAPP statute and reverse.

This is a child custody matter. Under the terms of the 2001 final marital dissolution judgment, Pontea Davoud Fatehi (Mother) was given sole physical custody of her two daughters. Last year, she appealed from an order modifying the custody order to joint physical custody with Faramarz Fatehi (Father). The order also prohibited Mother from changing her eldest daughters elementary school. Court reversed the order, agreeing with Mothers argument the court applied the wrong legal standard when considering the modification request.
While the matter was pending on appeal, the parties continued to have disagreements, resulting in more court filings. In December 2005, the court accepted the parties stipulation to joint custody with a modified visitation schedule. When the trial court later received our opinion reversing the custody modification order, it ruled the December 2005 stipulation/order was controlling. It denied Mothers motion for reconsideration. Finding none of her contentions on appeal have merit, Court affirm the courts order.

Appellant appeals from a restraining order that enjoined her from contacting Anthony Ray Negrette. A separate restraining order, issued at the same time, enjoined Negrette from contacting Green. Green argues the restraining order against her is defective because the trial court failed to make fact findings required by statute before a mutual restraining order may be entered. Court reverse because there is insufficient evidence to support the order against Green, without deciding whether the separate orders in this case are a mutual restraining order as that term is used in the statute in question.

Tracy L., mother of Patricia, Alanis, and Jose, petitions for relief from the orders of the juvenile court refusing to offer her reunification services and referring her children to a hearing for the selection of a permanent plan. Tracy contends the refusal of reunification services was erroneously based on a finding that her whereabouts were unknown because her whereabouts became known within a six-month period. Court find no error and deny the petition.

Defendant appeals from a judgment of conviction entered after a jury found him guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 189, 664 - count 1), assault with a firearm ( 245, subd. (a)(2) - count 2), and possession of a firearm by a felon ( 12021, subd. (a)(1) - count 3). As to count 1, the jury found that defendant personally discharged a firearm and proximately caused great bodily injury ( 12022.7, 12022.53, subd. (d)). As to count 2, the jury found that defendant personally used a firearm and personally inflicted great bodily injury ( 12022.5, subd. (a), 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had four prior strike convictions ( 667, subds. (b) - (i), 1170.12), two prior serious felony convictions ( 667, subd. (a)), and one prior prison term ( 667.5, subd. (b)). The trial court sentenced defendant to 68 years to life in prison consecutive to a determinate term of 11 years.
On appeal, defendant contends: (1) there was insufficient evidence that he acted with premeditation and deliberation; (2) the trial court erred in failing to instruct the jury that count 2 was a lesser included offense of count 1; (3) the trial court erred in failing to instruct the jury on accomplice testimony; (4) the trial court erred in instructing the jury pursuant to CALJIC No. 2.11.5; (5) the trial court erred in excluding evidence that certain witnesses were on probation; (6) trial counsel rendered ineffective assistance by failing to object to the admission of hearsay evidence; (7) the trial court improperly coerced the jury; (8) cumulative error requires reversal; (9) there was insufficient evidence that defendants Minnesota convictions were serious felonies; (10) the trial court erred in imposing sentence on a prior prison term enhancement under section 667.5, subdivision (b); and (11) section 654 bars imposition of sentence on count 3. Court conclude that there was insufficient evidence that defendants prior convictions were serious felonies and that the trial court erred in imposing sentence on a prior prison term enhancement. Accordingly, the judgment is reversed.

Defendant appeals from a judgment of conviction entered after she pleaded no contest to forgery (Pen. Code, 470, subd. (d)), receiving stolen property (Pen. Code, 496, subd. (a)), and possession of methamphetamine for sale (Health & Saf. Code, 11378). The trial court placed defendant on probation for three years. Court conclude that the trial court properly denied defendants motion to suppress evidence. However, Court reverse the judgment and remand the matter for further proceedings to determine defendants ability to pay attorneys fees.

Defendant appeals the convictions and sentence imposed following a jury trial on charges of child molestation and other sexual offenses against multiple minor victims. As explained below, Court remand for amendment of the abstract of judgment in one particular and shall affirm the judgment in all other respects. The facts of the underlying offenses be discussed only as necessary to resolve the issues raised.

Defendant appeals from a judgment entered following his guilty plea to, among other things, one count of assault with a deadly weapon. He contends the trial court erred in denying his motion to withdraw his plea pursuant to Penal Code section 1018. He argues that his plea was defective because he was not advised that under section 1203, subdivision (e), his admission of the aggravated assault created a statutory presumption against probation. Court conclude that the court did not abuse its discretion in denying the motion because, when his plea was accepted, there was not a climate of real anticipation that probation was likely. (People v. Vento (1989) 208 Cal.App.3d 876, 879 (Vento).)

After a court trial, appellant was found guilty of one count of second degree burglary (Pen. Code, 459) and one count of evading an officer with willful disregard for the safety of others. (Veh. Code, 2800.2, subd. (a).) After finding several alleged prior felony convictions to be true, the court sentenced appellant to an aggregate term of four years and eight months in prison.
The only issue on appeal is appellants contention that the trial court erred by denying his pre-trial section 1538.5 motion. (Pen. Code, 1538.5.) In that motion, appellant contended that his initial detention by the Emeryville Police was unlawful and, additionally, that the detention was unlawfully prolonged until he was affirmatively identified by a witness to the burglary. Court agree with the trial court that there was neither an unlawful detention nor an improper prolonging of the detention, and hence agree with its denial of appellants motion to suppress.

Appellant appeals from a juvenile court order that denied him presumed father status of Felicia O. in a dependency proceeding. Court affirm.

The mother of Jordan, age eight, petitions this court to set aside the juvenile courts order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26. She contends that the Mendocino County Department of Social Services (Department) failed to provide her with reasonable reunification services. Court deny the petition.

A borrower, claiming the lender demanded more than the amount due under a promissory note, sued for breach of contract. The lenders demurrer was sustained without leave to amend and the borrower appeals. Court reverse.

A jury convicted defendant of carjacking, second degree robbery, dissuading a witness by force or threats, and criminal threats. As to all counts, the jury found true gang enhancement allegations under Penal Code section 186.22, subdivision (b)(1). On appeal, Defendant contends that the true findings on the gang enhancement allegations must be reversed because, first, his trial counsel was ineffective for failing to move to dismiss those allegations; second, there is insufficient evidence to support the true findings; third, the jury was not instructed on the gang enhancement; and, fourth, the prosecutor used inconsistent and irreconcilable theories to obtain life sentences for Beteta while obtaining a four year sentence for his coparticipant in the crime. Court hold that there is insufficient evidence to support the gang enhancement as to three of the counts, and we reverse the true findings. Court also hold that the failure to instruct the jury on the gang enhancement was not harmless error, and Court therefore reverse the true finding on the remaining count and remand.

Defendant appeals from judgment entered following his no contest plea to four counts of second degree burglary (Pen. Code, 459) and his admission that he suffered a prior conviction and served a prison term within the meaning of Penal Code section 667.5, subdivision (b). His request for a certificate of probable cause was granted. He was sentenced to prison in count 1 to the low term of 16 months and received concurrent terms of 16 months on the remaining three counts. The one year term for the prior prison term allegation was stricken. He contends the trial court erred in refusing to permit him to withdraw his plea. For reasons explained in the opinion, Court affirm the judgment.