CA Unpub Decisions

Defendant petitions this court for a writ of prohibition restraining his trial upon count 2 of the information currently pending against him insofar as the count alleges a felony violation of Penal Code section 594. Defendant contends the Magistrate made a binding factual finding at his preliminary hearing concerning the cost to repair a van that precludes a charge of felony vandalism of the van. Court granted the petition.

Defendant shot plaintiff outside an apartment complex. Court affirmed defendant’s convictions for attempted murder and related charges.
In this case plaintiff sued the owners and managers of the apartment complex (collectively Wilton), alleging that respondents was negligent in hiring Rodriguez as an apartment manager and security guard, and in allowing him to remain as a tenant after notice of his dangerous propensities, specifically, that Wilton knew Rodriguez had been convicted of manslaughter, and that he carried guns, used methamphetamine and threatened tenants while working for Wilton. The trial court granted Wilton’s motion for summary judgment and plaintiff timely appealed. Court reversed.

A jury convicted defendant in case No. 04F6111 of two misdemeanor counts of battery of the mother of defendant’s child; three felony counts of tampering with a utility line, inflicting corporal injury on a spouse or cohabitant, and battery with serious bodily injury; plus two misdemeanor counts of violation of a court order; and found true two great bodily injury enhancements as to counts 4 and 5. In case No. 05F1693, defendant pleaded guilty to possession for sale of methamphetamine and admitted a prior serious felony conviction allegation and that he was released on bail at the time he committed the offense.
At sentencing on the two cases, the trial court selected count 4 in case No. 04F6111 as the principal term. It imposed upper term, consecutive sentences for the corporal injury conviction and the bodily injury enhancement, citing the recency and frequency of defendant’s prior convictions as well as his substandard performance on probation and parole. In the aggregate, the court sentenced defendant to 23 years eight months in state prison. Defendant appeals, contending the trial court imposed upper terms in violation of his federal constitutional right to trial by jury. Since this contention is without merit, court affirmed.

A jury convicted defendant of possession of cocaine base for sale. In bifurcated proceedings, defendant admitted two prior convictions for the same.
Sentenced to state prison [for an aggregate term of 10 years], defendant appeals, contending the trial court erroneously denied his pretrial motion for new counsel. Court concluded that the trial court did not abuse its discretion in denying defendant’s Marsden motion.

A jury convicted defendant of inflicting corporal injury on a former cohabitant and assault with a deadly weapon, and of first degree murder, attempted murder, and inflicting corporal injury on a cohabitant based on an separate incident as charged in a consolidated information. In a prior appeal, court affirmed the convictions, but remanded the matter because there was insufficient evidence to support the true finding on a prior conviction allegation.
Following imposition of sentence on remand, defendant again appealed. Court again affirmed the judgment, but remanded for resentencing as a result of substantial sentencing errors. Following the latest sentencing hearing, defendant has appealed for a third time, raising two sentencing errors. Court modified the judgment to add one day of credit, and otherwise affirmed the judgment.

A jury found defendant guilty of assault with a deadly weapon (count one), and possession of a razor blade in a penal institution (count two), both serious felonies. As to count one, the jury found the allegation that defendant personally inflicted great bodily injury to be true, and as to both counts, the court found to be true allegations of a prior serious felony conviction. The court sentenced defendant to an aggregate term of 14 years, which included a five-year enhancement for the prior conviction.
On appeal, defendant contends the trial court erred in giving CALJIC No. 2.62, and in finding his prior juvenile court disposition to be a prior serious felony conviction under Penal Code section 667, subdivision (a).
The People conceded error as to the second claim. Court accepted that concession and modified the judgment to strike the five-year enhancement for defendant’s prior juvenile adjudication. Court otherwise affirmed the judgment.

Pursuant to a negotiated disposition, defendant pled guilty to one count of possession of methamphetamine for sale, and admitted a prior narcotics conviction enhancement in exchange for a stipulated prison sentence of five years, with execution suspended and probation granted, so long as defendant appeared at sentencing, or showed good cause for any absence. After defendant failed to appear at a scheduled sentencing hearing, the court imposed the stipulated prison sentence. On appeal, defendant asserts the court erred by not making an express finding that she failed to establish good cause for her nonappearance; and even if such a finding is implied, the evidence does not support it. Court rejected these arguments and affirmed.

While on juvenile probation for first degree burglary and misdemeanor possession of a deadly weapon in exchange for dismissal of two allegations involving methamphetamine (transportation and possession) in another juvenile petition. The juvenile court continued the minor on probation and, as one term of probation, ordered him committed to the South Lake Tahoe Challenge Program for 223 days. The minor appeals. Appellant contends (1) the juvenile court erroneously calculated his maximum period of confinement without considering whether to impose less than the maximum as provided by section 731, subdivision (b) and (2) one of the written terms of probation fails to reflect the oral pronouncement of the juvenile court. Court agreed that the written term of probation requires correction to reflect the court’s oral pronouncement but concluded that the juvenile court properly specified the minor’s maximum period of confinement.

A non-profit group, filed a petition for writ of mandate against the City of Lodi and Lodi City Council (together the City) challenging its certification of a final environmental impact report (FEIR) and approval of a use permit for the Lodi Shopping Center, which has as its proposed anchor tenant a Wal-Mart Supercenter. Citizens alleged the City’s actions violated the California Environmental Quality Act (CEQA). The trial court granted the City’s motion to dismiss the petition based on Citizens’ failure to exhaust administrative remedies or lack of standing. Citizens appeal the judgment of dismissal claiming its representatives appeared and objected to the City’s proposed actions at each of the hearings before the Planning Commission and each of the hearings before the City Council thereby exhausting Citizens’ available administrative remedies even though Citizens did not itself file the notice of appeal that brought the decision of the Planning Commission to the City Council. Court agreed and reversed the judgment of dismissal.

Conflicting holdings exist on the question of whether, and under what circumstances, the pre-emption and jurisdictional provisions of the Employment Retirement Income Security Act (ERISA) prevent employer-funded health care providers from asserting subrogation rights in state courts. Thus, the trial court did not err in denying the defendant's motion to reduce the amount of the plaintiff's judgment by the amount of a lien asserted by the plaintiff's health care provider and purchased by defendant. At the time the judgment was entered no funds were in plaintiff's possession and thus the existence of a lien would not support any reduction in the amount of the judgment. Judgment Affirmed.

Defendant, a former NFL football player, got into a verbal altercation with some teenagers outside an ice cream store in Carlsbad. Defendant struck one of the boys on the side of the head causing a perforated eardrum. Defendant was charged with battery with serious bodily injury.
Following a jury trial, defendant was convicted of the lesser included offense of battery. Shaw was granted summary probation. Defendant appeals contending the trial court erred in refusing to instruct on self-defense. Court found no error and affirmed.

On this appeal, in which plaintiff challenges the trial court's ruling denying his petition for an order staying the defendant levy on bank funds belonging to him and the court's subsequent order denying his motion for reconsideration of that order, court liberally construed his notice of appeal to be timely filed from a "final" order. Court denied defendant's motion to dismiss, which had been deferred until this time and address the merits of plaintiff's contentions which essentially raise the question whether the trial court prejudicially erred in denying the stay because plaintiff showed his due process rights were violated when defendant served his bank the order to withhold WTO without providing him proper notice by certified mail of any tax deficiency. As we explain, plaintiff's assertions have no merit and court affirmed the trial court's order denying plaintiff's petition.

On defendant's appeal from an order denying a motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute), court affirmed. Defendant is the assignee of a money judgment. By way of a declaratory relief action plaintiff is attempting to set aside the judgment defendant obtained from other co-defendants and prevent further execution on the judgment. Such a responsive action by plaintiff does not "arise from" protected conduct within the meaning of the anti-SLAPP statute. Moreover as the trial court found, defendant's acquisition of the judgment and its efforts to enforce it are not activity protected by section 425.16. Hence the claims against defendant are not subject to a motion to strike.

Appellant appeals the family court's issuance of an order entering mutual protective orders enjoining her and Respondent, from specific acts of abuse under the Domestic Violence Prevention Act. Appellant contends that insofar as the order restrains her it must be reversed because the court failed to make detailed findings "that both parties acted primarily as aggressors and that neither party acted primarily in self-defense," as required by section 6305. Court affirmed the order.