CA Unpub Decisions

J.R. (mother) appeals the juvenile court's order terminating parental rights and selecting adoption as the permanent plan for her minor children M.R. and Je.R., and placing her child Ju.R. into long-term foster care[1] (Welf. & Inst. Code, § 366.26 et seq.) Mother contends that respondent Santa Barbara County Child Welfare Services (CWS) failed to comply with the notification requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.

Alfonso Ayala (defendant) appeals from the judgment entered following his plea of guilty to one count of attempted second degree robbery in violation of Penal Code sections 211 and 664[1] and a plea of no contest to one count of dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1). Defendant admitted personal use of a firearm in the commission of count 1 within the meaning of section 12022.53, subdivision (b), and he admitted the truth of the gang allegation pursuant to section 186.22, subdivision (b)(1)(C).

Jesus Anthony Mora appeals from orders revoking his probation in two separate cases and sentencing him to county jail. Appellant contends he is entitled to additional presentence conduct credits under the amended version of Penal Code[1] section 4019 that went into effect on October 1, 2011. Because appellant has fully served the sentence for which he seeks additional credits, we will dismiss the appeal as moot.
On September 29, 2010, appellant was charged in case number 2010024910 (the 2010 case) with grand theft person (§ 487, subd. (c)). Following appellant’s guilty plea to the charge, the trial court suspended imposition of sentence and placed him on 36 months formal probation with terms and conditions including that he serve 213 days in county jail.

An attorney and his firm—sued for fraud and misrepresentation—seek to strike the pleading as a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)[1] The attorney admittedly misrepresented to plaintiff that he was authorized to pursue debt settlement negotiations on behalf of a wealthy businessman. That was a lie: the attorney had no relationship with the “client” he purported to represent. The attorney intentionally deceived a party, a misdemeanor. Because this conduct was illegal as a matter of law, the defendants cannot invoke the protection of the anti-SLAPP statute.

A jury convicted defendant Rodrigo Escarcega of one count of evading an officer (Veh. Code, § 2800.2, subd. (a)) (count 2) and one count of hit and run driving, a misdemeanor (Veh. Code, § 20002, subd. (a)) (count 3). With respect to count 2, the jury found true the allegations that defendant had suffered two prior convictions for serious felonies (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), 667, subd. (a)(1)). After denying defendant’s Romero[1] motion, the trial court sentenced him to a third-strike term of 25 years to life in count 2 and a jail sentence equivalent to time served in count 3.
Defendant raises several issues relating to the trial court’s revocation of his in propria persona (pro. per.) status and its refusal to reinstate defendant’s pro. per. status for the purpose of his researching and presenting a new trial motion. He also contends that the trial court denied his rights under the Sixth and Fourteenth Amendments by not allowing him to be present during sidebar conferences. In addition, defendant requests this court to review the sealed transcript of his Pitchess[2] hearing.

An aspiring lawyer in his 30’s named Christopher Stone operated a website for teenagers on which he posted lewd photographs and other scandalous and salacious material. Stone presented himself in the mainstream media as an expert on the topic of “sextortion,” a form of blackmail characterized by threats to humiliate a person by posting nude photographs on the Internet. In February 2010, Stone tweeted a threat to “spam” a seminude photograph of a teenage girl; she was subsequently interviewed by an investigative reporter for an article about Stone’s threat to publicly humiliate her. Stone has now sued the girl for defamation. Following de novo review, we direct the trial court to strike Stone’s pleading as a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)[1]

Plaintiffs Mindy Chapman and Megan Shapiro appeal a judgment in favor of defendant Kensington Park Residential Property Owners Association (the Association) after a court trial on their toxic mold property damage and personal injury action. We conclude, among other things, that: 1) the trial court's "nonsuit" was in fact the grant of a "motion for judgment" under Code of Civil Procedure section 631.8[1]; 2) the court did not err by granting judgment after the presentation of plaintiffs' case because there was insufficient proof that water from the Association's common areas caused mold contamination on Chapman's property; and 3) the court did not abuse its discretion by limiting the evidence plaintiffs' expert witnesses could present at trial. We affirm.

Elizabeth Adrienne Clune challenges a spousal support modification that includes automatic step-downs starting in 2014. Though appellant stipulated to step-downs when the dissolution judgment was entered in 2006, she now regrets the agreement she negotiated and wants it rewritten. The trial court decided to hold appellant to her goal of self-sufficiency and declined to eliminate the parties’ agreed-upon step-downs. The burden remains on appellant to petition for modification in the future if she fails to achieve her goal. The court’s ruling was not an abuse of discretion.

A jury convicted defendant Virginia Ann Krall of one count of second degree murder (Pen. Code, § 187, subd. (a))[1] (count 1), three counts of attempted murder (§§ 187, subd. (a), 664) (counts 2-4), and one count of first degree residential burglary with a nonaccomplice present (§ 459) (count 5). The jury found that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). At defendant’s first sanity trial, the jury was unable to reach a verdict, and the trial court declared a mistrial. At a retrial, the jury found defendant legally sane.[2]
The trial court sentenced defendant to a total term of 21 years four months plus 15 years to life in prison. In count 1, the trial court imposed a term of 15 years to life plus one year pursuant to section 12022, subdivision (b)(1). In count 2, the trial court imposed a consecutive upper term of nine years, plus an additional three years pursuant to section 12022.7, subdivision (a), and an additional one year pursuant to section 12022, subdivision (b)(1) for a total term of 13 years. In each of counts 3 and 4, the trial court imposed consecutive terms of one-third the midterm of 84 months for a term of 28 months. In each of counts 3 and 4, the trial court imposed an additional one-third of one year, or four months, pursuant to section 12022, subdivision (b)(1) and one-third the midterm of three years, or one year, pursuant to section 12022.7, subdivision (a) for total terms of three years eight months in these counts. The trial court also imposed and stayed, pursuant to section 654, an upper term of six years in count 5.

Following a jury trial, defendants Jimmy Eugene Askew and Edward Byrd were convicted of an attempted robbery and burglary of a store (first incident), an attempted robbery and attempted burglary of another store (second incident), and several firearm offenses. The jury also found that defendant Askew personally used a firearm and that a principal was armed with a firearm.
In their appeals from the judgment, defendants contend that: (1) as to the second incident, the intent and overt act elements of attempted robbery and attempted burglary were not proven; (2) the finding that a principal was armed with a firearm must be reversed because the allegation was omitted from the amended information; (3) defendant Askew’s abstract of judgment erroneously refers to a dismissed count; (4) they must be resentenced because the trial court did not obtain presentence probation reports; (5) defendant Byrd’s prior prison term enhancements must be stricken for insufficient evidence; and (6) they are entitled to additional presentence custody credits.
We reject defendants’ claims of insufficient evidence but conclude that their sentences must be corrected as discussed in this opinion. As modified, the judgment is affirmed.

Defendant Jamal Kelly, 17 years old at the time of the events, was convicted by jury verdict of first degree felony murder (Pen. Code, §§ 187, 189),[1] for which he was sentenced to 25 years to life in prison. On appeal he raises several instructional issues and a challenge to the sentence as cruel and/or unusual punishment; he also claims the restitution order must be modified to make it joint and several. We affirm.

Marshe Ivy and Greg Alcantara, former store managers at Jiffy Lube International (JLI) service stations, filed a putative class action, on behalf of themselves and others similarly situated, alleging that defendant JLI had misclassified them as employees exempt from California’s overtime pay requirements and that, as a result of this misclassification, defendant was liable for violation of various provisions of the Labor Code and the Business and Professions Code. They appeal from the order of the trial court denying their motion for class certification and seek reversal of that order, contending that the court relied on improper legal criteria and failed to perform the necessary analysis in determining whether common questions were predominant in the case. We discern no error and affirm the order.

Plaintiff Villa San Clemente LLC (Villa) brought suit against defendant County of Orange (the County) for a tax refund on property taxes collected on 59.168 acres of land (the property) Villa owns in Orange County after the Assessment Appeals Board No. 1 (assessment appeals board, or board) assessed the property at $78,547,385. The assessor’s expert and Villa’s expert both used the same method of assessing the value of the property, comparable sales, but arrived at different results. The trial court denied Villa relief on two of its arguments, but remanded the matter to the board to consider Villa’s claim that construction costs for building a bridge on the property and a freeway off-ramp, as well as certain other costs of developing the property, reduce the valuation of the property. Villa appeals, contending the assessor’s method of assessing the value of the property was flawed in that certain downward adjustments were required, but not made, and a portion of the expense of building a mandated parking structure should have been deducted.
The trial court awarded Villa $70,806.71 in attorney fees under Revenue and Taxation Code section 1611.6.[1] The County cross-appealed, contending the court should have awarded substantially less.
For the reasons that follow, we affirm the judgment and the order awarding Villa $70,806.71 of the requested $108,453.75 in attorney fees.

This is an appeal from a judgment based on a guilty plea. Appellant contends he was denied equal protection because he was not given the benefit of a statutory amendment that increases the rate at which defendants can earn conduct credit while they are in jail prior to sentencing. Finding no equal protection violation, we affirm the judgment.