CA Unpub Decisions

Defendant Brian Charles Dubrin appeals the denial of his petition for recall of his “three strikes” sentence pursuant to Proposition 36. (Pen. Code, § 1170.126.) In his opening brief, he argues that the Proposition 47 definition of unreasonable danger applies to Proposition 36. However, in his reply brief, he concedes that the California Supreme Court recently held that Proposition 47’s definition of dangerousness does not apply to Proposition 36 petitions. (People v. Valencia (2017) 3 Cal.5th 347.) Thus, his sole contention on appeal is that the trial court abused its discretion in finding that resentencing him would pose an unreasonable risk of danger to public safety under section 1170.126, subdivision (f). We dismiss the appeal following appellant’s notice of abandonment and request for dismissal.

In a prior appeal, this court directed the trial court to resentence defendant and appellant Brandon Lee Smith. (People v. Smith (Jan. 6, 2016, E061598) [nonpub. opn.] [2016 Cal.App.Unpub. LEXIS 129, *9].)
Prior to resentencing, the trial court denied defendant’s Proposition 47 petition. (Pen. Code, § 1170.18.) Defendant contends the trial court erred in denying his petition. In particular, defendant asserts the trial court erred in concluding that resentencing defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) We reverse the order with directions.

Defendant Jesus Padilla is a so-called “resident child molester.” (E.g., People v. Johnson (2002) 28 Cal.4th 240, 242.) He repeatedly sexually assaulted his girlfriend’s daughter while the child was between the ages of approximately 8 and 12. As a result, he was found guilty on 20 separate counts and sentenced to multiple consecutive life terms.

Paul Lynch pleaded guilty to one count of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). The trial court sentenced him to credit for time served and placed him on three years of formal probation with multiple conditions. Lynch challenges four of the probation conditions, contending they are overbroad, unreasonable, and/or violate his constitutional rights. The People concede that one of the conditions—barring Lynch's presence at places where alcohol is the main item for sale—should be stricken. We agree, and modify the probation order to strike that condition. We otherwise affirm.

On October 20, 2016, a Redding Police Department officer was dispatched to One Safe Place following a report regarding a domestic violence restraining order. The officer met defendant’s wife, who reported that defendant Jacob Clinton Snyder had been served with a criminal protective order on October 13, 2016, forbidding contact with her and their three children. Defendant had assaulted her in Rio Linda; she fled to Redding to be with her family. Defendant had e-mailed her, called her several times, and sent several text messages to her. During the interview, defendant was seen in front of the premises. Defendant successfully fled in a white Toyota Camry before the officer could locate him.

In three separate cases, defendant Gregory Dwone Shoulders was convicted of transportation of a controlled substance, possession of a controlled substance, possession of a drug without a prescription, and inflicting corporal injury on a cohabitant after a previous conviction in violation of Penal Code section 273.5, subdivision (e). Defendant admitted a great bodily injury enhancement, admitted he had served two prior prison terms, and was found to have a prior strike conviction. The trial court denied defendant’s motion to dismiss his prior strike and sentenced him to an aggregate term of 14 years four months in state prison.
On appeal, this court modified his four-year term for the great bodily injury enhancement to one year four months (one-third of the term) and affirmed as modified.

Crystal P. appeals from the juvenile court’s jurisdictional order regarding her two children, Jasmine L. and Daniel L. She argues substantial evidence did not support the court’s finding that her involvement in drug trafficking placed her children at substantial risk of harm. We disagree and affirm.

R.L. (Mother) appeals orders of the juvenile court terminating her parental rights to her children D.L. and R., persons coming under the juvenile court law. (Welf. & Inst. Code, §§ 300, subd. (b) & (g), 366.26. ) We conclude Mother has not shown that the Ventura County Human Services Agency (HSA) did not comply with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), or that it failed to make a required inquiry into the Indian heritage of her child R. We affirm.

A jury found defendant Davion Hicks guilty of assaulting his wife. On appeal, defendant contends the trial court erred when it instructed the jury on flight and consciousness of guilt. According to defendant, there was insufficient evidence to show he left the scene “because of his knowledge of guilt.”
Substantial evidence supports the trial court’s decision to give the flight instruction. We affirm.

Plaintiff and appellant Robert Walsh (Walsh) appeals an order granting a special motion to strike (Code Civ. Proc., § 425.16) brought by defendants and respondents Leah Anesta (individually and as trustee for the Allen Trust Dated June 20, 1991, and the Lifetime Benefit Trust for Leah Anesta) and Thomas Anesta (sometimes collectively referred to as the Trust or Anesta). The trial court’s ruling eliminated Walsh’s eighth and ninth causes of action, for malicious prosecution and abuse of process, respectively.
We reverse in part, concluding that Walsh’s malicious prosecution claim arising out of the Trust’s bringing an unlawful detainer (UD) action against him has the requisite minimal merit to withstand anti-SLAPP scrutiny, and otherwise affirm.

A jury found defendant Luis Hernandez guilty of insurance fraud and attempted perjury. Defendant challenges the trial court’s instruction on attempted perjury and contends the trial court imposed an unauthorized sentence on the insurance fraud conviction. Because defendant was convicted of two offenses, the Attorney General asserts defendant’s sentence must be modified to add a second court security fee and conviction assessment (Pen. Code, § 1465.8 ; Gov. Code, § 70373) and the clerical error in the abstract of judgment, which indicates defendant’s convictions were the result of a plea instead of a jury’s verdict, should be corrected. The attempted perjury jury instructions set forth all elements of that offense, and the trial court did not have a sua sponte duty to give CALCRIM No. 460. Defendant’s midterm sentence on the insurance fraud conviction was authorized.

Father Anthony W., Sr. (father) challenges the juvenile court’s exercise of jurisdiction over his seven children. We conclude that the record contains substantial evidence that father inflicted serious physical harm on several of his children, and thus we affirm the jurisdictional orders.

In this dependency case (Welf. & Inst. Code, § 300), appellant A.P. (mother) appeals from the jurisdictional findings and dispositional order as to her son, S.P. She raises two issues: insufficient evidence to support the dispositional order; and inadequate notice under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). Respondent, Los Angeles County Department of Children Services (Department), concedes notice was inadequate, but argues the dispositional order is supported by substantial evidence. We conclude that notice was improper. We remand with directions to comply with ICWA requirements. In all other respects, the jurisdictional findings and dispositional order are affirmed.

Olivia Vaatete was in a longterm romantic relationship with Taejoon Lee before he began dating and became engaged to Zeta Graff. After Graff’s relationship with Lee ended, Graff accused Vaatete of being sexually involved with Lee during his relationship with Graff and allegedly called Vaatete names commonly understood as charging her with a “want of chastity.” (Civ. Code, § 46.) Vaatete sued Graff on a variety of theories, including defamation. Graff moved to strike Vaatete’s complaint as a strategic lawsuit against public participation (anti-SLAPP). (Code Civ. Proc., § 425.16.) The trial court denied the motion. We affirm.