CA Unpub Decisions

The juvenile court sustained a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) (general neglect and failure to protect) and (j) (abuse of sibling), alleging Rebecca R. and Jamal F., the mother and presumed father of Naomi F., had failed to provide proper care for Naomi due to Rebecca’s use of marijuana and had inappropriately disciplined Naomi’s half-brother by hitting him in the buttocks with a belt. The court ordered Naomi to remain in Rebecca’s home and ordered family maintenance services, including requiring Jamal to drug test. On appeal Jamal argues the court’s jurisdiction finding he hit Naomi’s half-brother with a belt was not supported by substantial evidence. He also argues the court’s order he submit to drug testing was an abuse of discretion and the court failed to adequately investigate his claim of Indian ancestry. Because we cannot grant Jamal any effective relief, we dismiss the appeal.

After a jury awarded a plaintiff $1.5 million in damages for two defendants’ malicious prosecution of a prior lawsuit, the plaintiff filed a declaratory relief action seeking a declaration that her judgment liens had priority over defendants’ attorney’s liens. The defendants filed a motion to strike the plaintiff’s declaratory relief claim under our anti-SLAPP law (Code Civ. Proc., § 425.16). The trial court denied the motion on the ground that plaintiff’s declaratory relief action did not constitute “protected activity” subject to the anti-SLAPP law. We agree that the plaintiff’s primary declaratory relief claim was not protected activity but disagree that her subsidiary claim was either unprotected or meritorious. Accordingly, we affirm in part and reverse in part.

The Los Angeles County Department of Children and Family Services (Department) filed a petition under Welfare and Institutions Code section 342 alleging father Rudy E. sexually abused his then seven-year-old son Derek E. and then three-year-old daughter Genesis E. within the meaning of section 300, subdivisions (b), (d), and (j). The juvenile court amended the counts under section 300, subdivision (b) to allege that father inappropriately touched, rather than sexually abused, the children and sustained those counts as amended. It dismissed the counts under section 300, subdivisions (d) and (j). The Department appeals, contending the juvenile court erred in dismissing the counts alleging sexual abuse under section 300, subdivision (d). We affirm because the challenge to the dismissal of the sexual abuse counts is non-justiciable.

Robert Andrew Rodriguez (Rodriguez) broke into a home when all four family members—Masae Hayashi (Hayashi), her husband Michiaki Ishimura, their 22-year-old son, Nobuhide, and 17-year-old daughter, Yuri—were present. Rodriguez threatened Hayashi, telling her that if she did not disrobe, he would kill her, her husband and their two children. A jury convicted Rodriguez of first degree residential burglary (Pen. Code, § 459; count 3) and criminal threats (§ 422, subd. (a); count 4). The jury made no finding as to the “person present” allegation attached to the burglary charge. The trial court found that Rodriguez had two prior “strike” convictions (§ 1170.12), alleged as to all counts, as well as two five-year prior convictions (§ 667, subd. (a)(1)), and four one-year prior prison terms (§ 667.5, subd. (b).)

Delfino Javier Solorzano was convicted following a jury trial of injuring a current or former cohabitant (Pen. Code, § 273.5, subd. (a)) with a finding he had inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). On appeal Solorzano contends the trial court committed prejudicial error by admitting hearsay statements of the victim, Monica O., contained in the audio portion of the video from the responding police officer’s body camera, as well as the victim’s subsequent statements to hospital staff, a social worker and a detective. We affirm.

Jose De Jesus Cardenas appeals his conviction by jury for criminal threats (count 2; Pen. Code, § 422) , possession of a firearm by a felon (count 3; § 29800, subd. (a)(1)), and assault with a deadly weapon (count 4; ADW, § 245, subd. (a)(1)) with a firearm use enhancement (§ 12022.5, subd. (a)(1)). The trial court sentenced appellant to 14 years 8 months state prison. We affirm.

Defendant Alexander Ramos appeals from a judgment of conviction of first degree murder (count 1), second degree robbery (counts 3 & 4), and possession of a firearm with the identification numbers removed (count 5). (Pen. Code, §§ 187, subd. (a), 211, 23920. ) The jury found true the gang and firearm enhancement allegations, including under section 12022.53. (§ 186.22, subds. (b)(1)(C) (counts 1, 3, 4) & (d) (count 5); § 12022.53, subds. (b) (counts 3, 4) & (d) (count 1).) Defendant admitted an out-on-bail enhancement allegation resulting in a mandatory consecutive two-year term. (§ 12022.1.) The trial court sentenced defendant to 76 years to life in state prison. Because he was 20 years old when he committed these crimes, defendant will be eligible for a parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).)

Lattice Armstead and Myra Quinn (collectively, “appellants”) filed a petition to compel an accounting and court review of the actions of respondent Carolyn Webb de Macias, the trustee of appellants’ mother’s estate. The trial court denied the petition and assessed attorney fees and costs. We affirm.

Brett Haddock appeals a two-year civil harassment restraining order entered in favor of Sean Richard Weber and his family members pursuant to Code of Civil Procedure section 527.6. Haddock and Weber were unsuccessful applicants for a Santa Clarita City Council position in January 2017. Haddock thereafter took it upon himself to “write about [Weber] and expose his prior and current conduct” in a public Internet blog post. Although the text of the post is nowhere in the record, it apparently included Weber’s phone number, address, date of birth, and a photograph of his license plate, as well as his parents’ address and phone number, which led to prank calls and harassment. The post also apparently included court records of an expunged conviction Weber had sustained.

Charles Edwin Freeman appeals a postjudgment order denying his petition to vacate a one-year prior prison term enhancement after the underlying prior felony conviction, a 2008 conviction for drug possession (Health & Saf. Code, § 11377), was reduced to a misdemeanor pursuant to Proposition 47. (Pen. Code, § 1170.18, subds. (f) & (g).) We reverse and remand with directions to strike the one-year prison prior term enhancement with respect to the prison term served in Case No. YA071409, and to recalculate the aggregate sentence. (People v. Buycks (2018) 5 Cal.5th 857, 893-894 [discussing full resentencing rule]; see, e.g., People v. Sellner (2015) 240 Cal.App.4th 699, 701-702.)

Plaintiff Tjomme Arthur Boing sued defendant Washington Mutual Bank for injuries he claimed occurred on September 4, 2008 when he slipped and fell at defendant’s bank. On June 25, 2013, during the second day of trial, plaintiff asked to dismiss his case because he was in pain, on medication, and not thinking properly. According to plaintiff, the trial judge insisted that the dismissal be with prejudice. When plaintiff who was self-represented asked what that meant, it was explained that he could never sue defendant again. The clerk then printed a dismissal form, the opposing counsel filled it in, and plaintiff signed it dismissing his case with prejudice. Apparently no judgment or order signed by the court was ever entered.

Q.B. appeals from the juvenile court’s order that declared him a ward of the court under Welfare and Institutions Code section 602. The court found true allegations that Q.B. committed three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), one count of possession of a firearm by a minor (§ 29610), and one count of possession of ammunition by a minor (§ 29650). It also found true allegations that Q.B. committed the robberies for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). It ordered him suitably placed at Rites of Passage, Sierra Ridge, subject to terms and conditions of probation.

Following a jury trial David Arnold Sumlin was convicted of one count of attempted second degree robbery and four counts of assault with a firearm. The jury found true special allegations Sumlin had personally used a firearm during the attempted robbery and aggravated assaults. Sumlin was sentenced as a second-strike offender, based on a prior juvenile adjudication, to an aggregate state prison term of 18 years. On appeal Sumlin does not challenge his convictions but argues the trial court improperly sentenced him pursuant to a firearm enhancement not found true by the jury. Sumlin further argues remand for resentencing is necessary to allow the trial court to exercise its discretion to strike the firearm enhancements under recent amendment to Penal Code sections 12022.5 and 12022.53. We affirm the convictions and remand for the trial court to hold a new sentencing hearing and to correct several errors in the minute orders recording the verdict and sentence imposed.

The jury found defendants and appellants Paulo Olea Corrales and Ramiro Gutierrez guilty of three counts of shooting from a motor vehicle (Pen. Code, § 26100, subd. (c) [counts 7–9]), and found true as to all three counts the allegations that a principal personally and intentionally discharged a handgun during the commission of the crimes within the meaning of section 12022.53, subdivisions (c)(1) and (e)(1), a principal personally used a handgun during the commission of the crimes within the meaning of section 12022.53, subdivisions (b)(1) and (e)(1), and that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Gutierrez was additionally found guilty of two counts of possession of a firearm by a felon (§ 29800, subd. (a) [counts 4 & 6]) and one count of criminal threats (§ 422, subd. (a) [count 5]). The jury found true the allegation that Gutierrez personally used a firearm in count 5 (§ 12022.5, subd. (a)), and that the crimes w