CA Unpub Decisions

A jury convicted Marlon Jaime Castillo of three counts of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); all statutory references are to this code unless noted) and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). Castillo challenges the sufficiency of the evidence to support the verdict and argues he was entitled to an instruction on brandishing a firearm ( 417, subd. (a)(2)), as a lesser included offense to assault with a semiautomatic firearm. He also contends the trial courts comments during defense counsels cross-examination of key prosecution witnesses constituted misconduct. Court agree with the latter contention and therefore reverse the judgment.

The juvenile court in 1998 found John Gene Simon had committed a sex offense which subjected him to the registration requirements for sex offenders under Penal Code section 290 (all statutory references are to this code unless otherwise noted). In June 2005, Simon pleaded guilty to four counts of auto burglary. The trial court granted Simon probation after Simon agreed to follow certain terms and conditions, including a six-month jail term and a promise to violate no law. The trial court found Simon violated his probation when he failed to register as a sex offender after his release from custody on the six-month jail term for the auto burglaries.
Simon appeals the trial courts finding he violated probation, arguing section 290 is unconstitutionally vague as applied to him. He also challenges the sufficiency of the evidence to support the courts finding he willfully failed to register after his release from custody. Even if sufficient evidence supports the courts order, Simon contends the court abused its discretion in revoking probation. For the reasons stated below, Court affirm.

Plaintiff Kevin Orton appeals from a judgment in favor of defendants Timothy J. Gibbs and The Gibbs Law Firm in his legal malpractice action. This appeal arises out of an action previously before us (Orton v. Virtual Fonlink, Inc. (Nov. 18, 2004, G032862) [nonpub. opn.]). As set forth in that opinion, plaintiff sued Virtual to foreclose on a security interest in a patent assigned to it. Plaintiff prevailed in his action but filed a cross-appeal from the $60,000 limit on the amount of debt secured by the patent, claiming he was entitled to $180,000. (Id. at p. 2.)

There were two security agreements and financing statements at issue in the first appeal. (Orton v. Virtual Fonlink, Inc., supra, G032862, pp. 2-3.) The first security agreement and financing statement secured a $60,000 loan with a patent. (Id. at pp. 2-3, 5, 6.) A second security agreement and financing statement secured a $120,000 loan. (Id. at p. 3.) The collateral securing the loan was described as telephone units. (Ibid.) The financing statement contained the following language: Additional security as referred to under [first financing statement] U.S. patents of debtor . . . amount increased to $180,000. (Ibid.)
Plaintiff also challenges the trial courts reliance on collateral estoppel in granting the motion for summary judgment. That is not a basis for our decision. Finally, the value of the patent is not relevant to the issue before us.
The judgment is affirmed.

Martin Klett was sentenced to five years and eight months in state prison based on three offenses, all involving methamphetamine. (See Health & Saf. Code, 11378 [possession for sale] & 11379, subd. (a) [transportation].) Count 1 alleged possession of methamphetamine for sale on January 18, 2005. Count 2 alleged transportation of methamphetamine on January 18, 2005. Count 3 alleged possession of methamphetamine for sale on November 17, 2004. The sentence consisted of a middle term of three years for the January transportation count, augmented with another two years because the crime was committed when Klett was out on bail for the November crime, plus one-third of the middle term for the November possession count. On appeal, Klett raises three attacks on the judgment:
-- (1) A suppression motion based on a failure to give a Miranda warning involving events leading to the November arrest (count 3) should have been granted.
-- (2) There was insufficient evidence to sustain either possession for sale or transportation (counts 1 and 2) for the January arrest.
-- (3) As regards the January arrest for transportation (2), the jury should have been instructed sua sponte specifically that it had to find that Klett was transporting a usable quantity of methamphetamine. (The jury did receive an instruction that it needed to find that Klett possessed an amount sufficient to be used as a controlled substance.)
Court affirm.

This is the second appeal between the parties arising from their ongoing dispute over the enforceability of a restrictive covenant. In Shea Homes Limited Partnership v. UDR/Pacific Los Alisos, LP (Jun. 29, 2006, G035827) [nonpub. opn.], Shea Homes Limited Partnership and Madrid LLC (appellants) appealed the dismissal of an action after the trial court struck their complaint under Code of Civil Procedure section 425.16 as a strategic lawsuit against public participation (anti-SLAPP; all further statutory references are to this code). That action involved appellants effort to prohibit UDR/Pacific Los Alisos LP and United Dominion Realty Trust, Inc. (respondents) from processing land use applications to permit construction of a residential development on a parcel appellants claim is subject to a restrictive covenant limiting its use to commercial purposes. We reversed. Acknowledging the parties concession that the causes of action arose from respondents exercise of their petitioning and free speech right, we held appellants had established a probability of prevailing on their claims.
After the trial court dismissed the prior action, respondents obtained the governmental approvals needed to proceed with residential development of the property and filed the present lawsuit challenging the continued enforceability of the restrictive covenant. Appellants cross-complained primarily seeking to prohibit respondents from demolishing the parcels existing improvements, building the proposed residential project, and recording a subdivision map. The trial court granted respondents anti-SLAPP motion and struck the cross-complaint. Since the cross-complaints causes of action do not arise from respondents exercise of their right of petition or free speech, Court reverse that ruling.

Bernard and Kathleen Fallon appeal from a summary judgment entered in favor of Barry Shreiar in their action for fraudulent conveyance and alter ego. The Fallons believe Shreiar is personally liable for a $72,543.97 judgment entered against Shreiars former real estate brokerage company, Summit Real Estate Group, Inc. They assert triable issues of fact exist about Shreiars fraudulent intent as well as on their separate alter ego cause of action. Court find the Fallons misunderstand how the alter ego doctrine should be applied, and Court conclude summary judgment was properly granted. Court affirm the judgment.

J.G. appeals from an order sustaining a petition (Welf. & Inst. Code, 602) charging him with possession of a controlled substance. He argues the trial court erroneously denied his motion to suppress because: (1) the police officer used J.s suspected truancy as a pretext to detain him for unrelated criminal activity; (2) the officer did not have J.s express consent to conduct the search; and (3) the officer was unaware J. was subject to a probation search and seizure condition at the time of the search. As we explain below, Court find the encounter was consensual and J. expressly consented to the search, and therefore, Court need not address the other issue. Court affirm the order.

A jury found defendant Hien Van Nguyen guilty of domestic battery with corporal injury (count 1), aggravated assault (count 2), assault with a firearm (count 3), and brandishing a deadly weapon (count 4). Defendant received a two-year prison sentence. The court imposed the low term of two years each for counts 1, 2, and 3, stayed the sentence on count 2, and ordered the sentence on count 3 to be served concurrent to count 1. As to count 4, the court ordered time served.
Defendant contends the judgment should be reversed because admission of the nontestifying victims statements violated his Sixth Amendment right to confront witnesses. (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford).) Additionally, he argues these statements were not subject to the spontaneous statement exception to the hearsay rule. He further challenges the sufficiency of the evidence supporting the judgment. Finally, he asserts the court erred in failing to stay the sentence on counts 3 and 4 under Penal Code section 654 (section 654). Court agree the sentence on counts 3 and 4 should have been stayed. In all other respects, the judgment is affirmed.

Defendant The Villas at Corte Bella Community Association (Villas) and three members of its board of directors appeal from an order denying their anti-SLAPP motion (Code Civ. Proc., 425.16) to strike several causes of action of the complaint of Mark Fawaz (plaintiff), a former community resident. Plaintiff alleges defendants injured him through racially motivated wrongful activities, including harassment, invasion of privacy, defamation, and various civil rights violations. Section 425.16, subdivision (b)(1) provides, A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. The statute sets out a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
Section 425.16, subdivision (e)s four categories of act[s] in furtherance of a persons right of petition or free speech . . . in connection with a public issue are: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Defendants concede only the latter two categories, section 425.16, subdivisions (e)(3) and (4), potentially apply here. In both of those categories, the defendant must show the acts alleged in plaintiffs complaint were in connection with a public issue or issue of public interest. Although no authority defines the precise boundaries of a public issue (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero), in general, a statement or activity implicates public interest when it involves a person . . . in the public eye, it could directly affect a large number of people beyond the direct participants, or it is a topic of widespread, public interest. (Ibid.; see also Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks) [Both categories are limited by the requirement that the statement or conduct be connected with an issue of public interest].)
Where a defendant fails to demonstrate that the act underlying the plaintiffs claim fits one of the categories spelled out in section 425.16, subdivision (e), the court denies the anti-SLAPP motion without moving on to decide whether the plaintiff has demonstrated a probability of prevailing on the claim. (See Navellier, supra, 29 Cal.4th at p. 88.) That is what the court did in this case.
On appeal, Court conduct a de novo review. (Governor Gray Davis Com. v. American Taxpayers Alliance(2002) 102 Cal.App.4th 449, 456 (Davis).) Here, we conclude defendants did not demonstrate that the acts giving rise to plaintiffs claims fit within either of the pertinent categories of section 425.16, subdivision (e). Rather, the statements were akin to those styled by the court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 (Weinberg), as constituting a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow [association members]. Indicative of a long-running vilification effort, defendants statements took aim at plaintiffs alleged country of origin and raised questions about, inter alia, his patriotism, personal finances, property transactions, honesty, and integrity. But under the law discussed more fully, post,they did not involve a person . . . in the public eye, they did not concern a topic that could directly affect a large number of people beyond the direct participants, and the subject matter was not a topic of widespread, public interest. (Rivero, supra, 105 Cal.App.4th at p. 924.) Even under the required broad construction of the statute ( 425.16, subd. (a); Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 (Damon)), plaintiffs complaint does not arise from defendants activities protected within the categories of section 425.16, subdivisions (e)(3) or (e)(4), thus it does not provide the stuff out of which a winning anti-SLAPP motion is made.

A judgment of dissolution of Charles J. and Linda E. Lumsdaines 29 year marriage was entered in December 1994. The judgment divided the community property interests and incorporated a marital settlement agreement. The judgment required that their residence located in Encinitas be listed for sale on June 1, 1995, and that Charles continue to pay mortgage payments, insurance premiums, and taxes on that property through May 31, 1995. Charles was to be reimbursed for those amounts he paid for the residence out of the sale proceeds. The residence was never listed, and Linda has been its sole occupant, rent-free, since 1994.
Charles subsequently married Rhonda Lowell, and they had a son. In November 2004, Charles passed away. In February 2005, Charless estate[2] filed an order to show cause (OSC) seeking an order that would facilitate the listing and sale of the residence. Linda responded by filing an OSC requesting that the court order Charless estate to pay her the amounts awarded to her in the judgment that remained unpaid, with interest, and to pay such amounts before the residence could be listed for sale. Following a hearing, the trial court issued a thorough and detailed order resolving the issues raised in the OSCs. Each party prevailed on some issues, and lost on others. Linda alone appealed from the trial courts order. Court affirm.

This is a proceeding for marital dissolution and child custody. Melinda Pemberton (Melinda) filed a petition for a peremptory writ of prohibition or other extraordinary relief and requested a stay of all court proceedings. Melinda seeks an immediate stay of the superior courts order requiring her to pay child support in the amount of $425 monthly and attorney fees in the amount of $3,000 to her former husband, John Pemberton (John). Melinda challenges the courts decision finding her pregnancy (with her subsequent husband) a voluntary act designed to reduce her income and to avoid paying child support. The trial courts statements cast sufficient doubt on the fairness of the proceedings to issue a peremptory writ in the first instance granting Melinda relief from the child support and sanctions order.

In his petition under California Rules of Court, rule 8.450, Ryan P. (father) challenges the courts order adjudicating a Welfare and Institutions Code section 387 supplemental petition[2] only insofar as it sustains a sexual abuse allegation which, father argues, is unsupported by sufficient evidence. The order was issued at the hearing in which the court also scheduled a .26 hearing to consider a permanent plan for five-year-old Ethan P. There are no issues pertaining to mother. Moreover, father does not contest the courts true findings as to the remaining allegations of the supplemental petition, nor does he deny these allegations provide a legitimate basis for continuing dependency jurisdiction, and he does not assign error respecting the dispositional order.
After providing the parties an opportunity to fully brief and orally argue the issue, Court deny the petition. As discussed more fully post, Ethans disclosures of his fathers sexual abuse, consistently repeated to different people at different times, provide a sound evidentiary basis for the order sustaining the allegation.

An information charged defendants Juan Carlos Posadas and Maurice A. Vasquez with one count of kidnapping (Pen. Code, 207, subd. (a))[1] and alleged that each had personally used a firearm in the commission of that offense ( 12022.53, subd. (b)). In addition, both defendants were charged with possession of a firearm by a felon ( 12021, subd. (a)(1)) and Posadas was charged with attempting to dissuade a witness ( 136.1, subd. (a)). Defendants admitted the prior conviction allegations contained in the information. Posadas, who had a prior strike conviction ( 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( 667, subd. (a)), was sentenced to 25 years in prison. The court sentenced Vasquez, who had one prison prior ( 667.5, subd. (b)), to 19 years in prison.

On appeal, defendants jointly argue that the prosecutor committed misconduct and that the trial court made erroneous evidentiary rulings. Posadas claims that the court erred by rejecting his new trial motion and Vasquez argues that the court erred under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington(2004) 542 U.S. 296 (Blakely) by sentencing him to the aggravated term for the kidnapping. By way of petitions for habeas corpus, both defendants claim that their attorneys provided ineffective assistance of counsel. We have previously ordered the matters considered together for the purpose of briefing, oral argument, and decision. For reasons Court explain, Court affirm the judgments and deny the writ petitions.

A jury convicted defendant Henry Nguyen of two counts of making criminal threats. (Pen. Code 422.)[1] Count 1 alleged threats against defendants wife, T., and count 2 alleged threats against defendants daughter, N. The jury also found true the allegation that defendant had personally used a firearm in connection with the threats against his wife. Defendant was sentenced to two years for count 1, and three years for the attendant firearm use enhancement. The court imposed a consecutive eight-month term (one-third the midterm of two years) for the second count against N.
Defendant does not challenge the sufficiency of the evidence on count 2. However, he does argue that the eight-month consecutive sentence on count 2 violates section 654 because the criminal threat charged in count 2 is not a violent crime. Court affirm.