CA Unpub Decisions

After defendant unsuccessfully moved to suppress evidence and to dismiss the information, defendant pled no contest to transportation of methamphetamine and forgery. Pursuant to a plea bargain, defendant was sentenced to four years eight months in state prison. Imposition of sentence was suspended due to defendant’s commitment to the California Rehabilitation Center. On appeal, defendant contends her motion to suppress was erroneously denied. Court rejected the contention and affirmed.

Plaintiff appeals from the order granting defendant’s special motion to strike under Code of Civil Procedure section 425.16. Section 425.16 which sets out a procedure for striking complaints in lawsuits that are commonly known as “SLAPP” suits. Plaintiff contends that the trial court erred in finding that three letters sent by defendant to plaintiff’s real estate agent qualify as exercises of the right to petition and the right to freedom of speech under section 425.16. Appellant also contends that the trial court erred in finding that her underlying cause of action against defendant for interference with contractual relations lacks merit. Court disagreed with plaintiff in both respects and affirmed the order.

Petitioner,seeks a writ of habeas corpus directing the County of Contra Costa Superior Court to accept his notice of appeal as timely filed. Petitioner has established a prima facie case that he is incarcerated, that he requested trial counsel to file a notice of appeal, and that counsel prepared a notice but inadvertently failed to file it timely. Respondent concedes that petitioner is entitled to the relief he seeks, and waives issuance of an order to show cause. Respondent also waives oral argument and stipulates to the immediate issuance of the remittitur.
Therefore, the petition for writ of habeas corpus is granted to the extent that the notice of appeal dated July 6, 2006 in In re Michael L. is deemed constructively, timely filed.

A modification decision.

Defendant appeals from the judgment entered after a jury convicted her of willful, deliberate and premeditated attempted murder. Appellant contends the trial court committed prejudicial error by instructing the jury on implied malice in a prosecution for attempted murder that requires a specific intent to kill. Although court found the juvenile court erred by instructing the jury on implied malice, court found the error harmless beyond a reasonable doubt and affirmed the judgment.

A jury convicted defendant of four counts of robbery and found true the special allegation he had personally used a firearm in committing each of the offenses. On appeal defendant contends there is insufficient evidence to support the firearm enhancement as to one of the robberies and the jury relied on a legally inadequate theory in finding the firearm-use enhancement true as to that offense and two others. Court modified the judgment to correct the unauthorized sentence imposed by the trial court, but in all other respects affirmed the judgment.

Defendant timely appealed a judgment entered against him following a jury trial in which he was found guilty of second-degree murder. On appeal, appellant contends the trial court had a sua sponte duty to instruct the jury with paragraph from the 2004 revision to CALJIC Nos. 5.54 and 5.56 which provides that an initial aggressor need not withdraw and may use reasonable (even lethal) force to defend himself if the victim of that initial, simple assault responds with a sudden and deadly counter-assault from which the initial aggressor cannot safely withdraw. Appellant argues that this omission constitutes reversible error because it deprived him of his sole defense against the allegations. The trial court did not err by failing to give this instruction because the instruction was not supported by substantial evidence. Additionally, because appellant did not rely on the instruction for his defense, his substantive rights were not violated.
Appellant further contends (and respondent agrees) the cane use enhancement should have been stayed. Court affirmed as modified.

Two employees sued their employer and numerous individual employees and supervisors for workplace harassment and retaliation, violation of the Family Rights Act, and race, age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq., and public policy. Defendants moved for summary judgment. In opposition to the motion, the plaintiffs submitted voluminous papers which failed to comply with the requirements of Code of Civil Procedure section 437c, or California Rules of Court, rule 342. The trial court afforded plaintiffs an opportunity to cure the defects and resubmit opposition papers which complied with applicable rules. The plaintiffs filed new papers, which also failed to meet the procedural requirements governing motions for summary judgment. The trial court struck the offending portions of the plaintiffs’ separate statement, as well as portions of their responsive declarations. As a result, the majority of the defendants’ facts were effectively left undisputed and, on that basis, summary judgment was granted. The plaintiffs appealed. Court affirmed.

Application of the res judicata principle compels affirmance of the trial court’s order denying the motion of appellant for relief from judgment based on extrinsic fraud. The judgment is affirmed. Costs are awarded to respondent.

Following revocation of probation, appellant was sentenced to prison for three years for carrying a loaded firearm. Appellant contends: (1) The trial court’s finding that he violated probation is not supported by substantial evidence. (2) Appellant was denied his right to due process of law because the trial court revoked probation based on a ground that the prosecutor had removed from the motion to revoke probation.
Court found no error, and affirmed.

Appellants appeal from a judgment admitting to probate a holographic document executed by appellants’ father, in which father left his small restaurant and a five-year lease for the commercial space the restaurant occupied to a longtime employee and business associate, respondent Karen Whitman. Appellants claim the court erred in finding the holographic document was a valid will under California law. Specifically they complain: (1) that although father wrote his initials in the holographic document, his use of initials did not qualify as his “signature” as a matter of law; (2) the devise in the document was invalid because it was ambiguous and purports to give away an leasehold interest which father did not own at the time of his death; (3) Probate Code sections 21350 and 21351 disqualified respondent from receiving the interest conveyed in the will because she and Hall had a fiduciary relationship and she participated in drafting the will; and (4) because respondent retained custody and control over the will, father was prevented from revoking it. Court affirmed the judgment.

Defendant appeals his convictions on one count of possession for sale of cocaine and one count of transportation of a controlled substance resulting from a routine traffic stop. Prior to trial the court ruled evidence of defendant’s status on parole and his past gang involvement, which police discovered during the traffic stop, would not be admissible at trial. Instead, the parties stipulated the police had probable cause to detain and place defendant in handcuffs after police stopped him. However, during his direct examination defendant testified at some length concerning the nature of his interactions with police during the traffic stop and as a result the court concluded defendant “opened the door” to evidence concerning defendant’s parole status and prior gang involvement. On appeal, defendant argues his counsel was ineffective during Poole’s direct examination, because he elicited responses from Poole which “opened the door” to the otherwise inadmissible gang and criminal history evidence. Court did not agree. As court explained, defendant failed to demonstrate his counsel was deficient or that his counsel’s performance resulted in prejudice. Court affirmed.

Father of minors, appeals from the jurisdictional and dispositional orders of the juvenile court. The children were detained by the Department of Children and Family Services (“the Department”) after their mother left them at a homeless shelter and failed to return. Father and mother were not married and not living together at the time the children were detained. Father contends that as to him there was no substantial evidence supporting the juvenile court’s jurisdiction or the removal of the children from his custody. Father further contends the court abused its discretion when it ordered monitored visits for him and erred when it ordered him to attend a parenting class and participate in individual counseling. Court affirmed.

The mother of minors, appeals from the juvenile court’s order following a contested disposition hearing declaring minors dependent children of the court, and denying family reunification services to mother. The juvenile court had previously sustained the dependency petition alleging that at birth Dustin had a positive toxicology screen for amphetamine and methamphetamine and mother had a positive toxicology screen for amphetamine, methamphetamine and opiates and that Amber has a history of substance abuse and is an abuser of amphetamine, methamphetamine and opiates who has failed in her prior attempts to complete court-ordered substance abuse rehabilitation programs.
On appeal, mother filed a handwritten letter brief in which she requests that court reconsider the juvenile court’s order denying reunification services. Although mother insists she was sober during her entire pregnancy with Jonathan, as well as the first 18 months of his life, mother acknowledges she relapsed in the week prior to Dustin’s birth and does not challenge the juvenile court’s factual findings regarding either her history of extensive abuse and chronic use of drugs or her repeated failed efforts at treatment. In sum, mother’s letter brief does not identify any legally cognizable error in the juvenile court’s order. Order Affirmed.