CA Unpub Decisions

In April 2007 the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for one-year-old A.L. and three-month-old M.L. because M.L. suffered severe physical abuse inflicted by one or both parents. A.L. and M.L. were detained together in a foster home that later became a placement. At the December 2008 18-month review hearing, the juvenile court continued the foster care placement and set a Welfare and Institutions Code section 366.26[1] hearing. In April 2009 mother L.N. filed a section 388 petition requesting that the court place A.L. and M.L. with her and vacate the setting of the section 366.26 hearing. In June, the court denied the petition and terminated L.N.'s parental rights to A.L. and M.L. In denying the section 388 petition, the court stated, "This is probably one of the most difficult cases I have had in front of me about return." The court found, by clear and convincing evidence, that there were changed circumstances, but concluded that it could not find, by clear and convincing evidence, that it would be in A.L. and M.L.'s best interests to be returned to L.N. ( 388.)

A jury found defendant Albert Wesley Sparks guilty of leaving the scene of a vehicle accident in which a person, other than defendant, was injured. (Veh. Code, 20001, subd. (a).) A jury found true the allegation that defendant inflicted great bodily injury upon the victim during the commission of the felony. (Pen. Code, 12022.7, subd. (a).) The jury was not able to reach a verdict on the charge of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)); and the trial court granted the prosecutors motion to dismiss the charge (Pen. Code, 1385). The trial court sentenced defendant to state prison for a term of six years.

A jury convicted defendant Lawrence Kennedy of the lesser included offense of attempted sodomy (count 2Pen. Code 663, 286)[1]and criminal threats (count 4 422). On appeal, defendant contends the court erred in failing to give the jury sua sponte instructions on the lesser included offense of attempted criminal threats. We hold that substantial evidence did not support an instruction on attempted criminal threats and, regardless, any error was harmless. Defendant additionally maintains the abstract of judgment erroneously reflects that he was convicted of sodomy by force; thus, he requests we direct that it be corrected to reflect his actual conviction for attempted sodomy. The People concede the latter issue. Court agree and direct the trial court to make the correction.

In an amended information, defendant William Arthur Brown was charged in count 1 with the sale or transportation of a controlled substance, rock cocaine, for the benefit of a criminal street gang and with active gang participation in count 2. A jury found defendant guilty in count 1. The jury was unable to reach a verdict and a mistrial was declared on the gang allegation and active gang participation charge, and the allegation and charge were later dismissed.

A modification decision.

A jury convicted Derric Meredith Rick Gene Stitt of the following: (1) second degree robbery (count 1; Pen. Code, 211[1]); (2) second degree commercial burglary (count 2; 459/460, subd. (b)); (3) receiving stolen property (count 3; 496, subd. (a)); (4) attempted grand theft of property (count 4; 664/487, subd. (a)); (5) identity theft (count 5; 530.5, subd. (a)); and (6) resisting a peace officer (count 6; 148, subd. (a)(1)). In a bifurcated proceeding, the jury found true allegations that Stitt had suffered the following five prior serious or violent felony convictions pursuant to sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d), and 667, subdivision (a)(1): (1) two November 8, 1983, robbery convictions ( 211); (2) a July 3, 1985, robbery conviction; (3) a November 20, 1992, robbery conviction; and (4) a November 20, 1992, first degree burglary conviction ( 459/460, subd. (a)). The jury further found true allegations that the July 3, 1985 and November 20, 1992 convictions were prior convictions within the meaning of section 667.5, subdivision (b).

Though lawfully admitted to the United States in 1989, Jaime Rodarte Duran never became an American citizen. In 2001 and 2004, he inappropriately touched two young women in Merced County, for which he twice pled nolo contendere to sexual battery. (Pen. Code, 243.4, subd. (a).)[2] Originally granted probation with a county jail term in the 2001 case, he agreed in 2005 to a negotiated disposition revoking his probation and imposing a one-year prison term in the 2001 case and imposing a two-year prison term in the 2004 case.
In 2007, federal immigration authorities initiated proceedings to remove Duran from the United States. In 2008, he filed, and the court denied, a section 1016.5 motion to vacate the judgments inboth casesand a petition for writ of habeas corpus in each case. On appeal, he challenges the denial of his motion as an abuse of discretion. On habeas corpus, he challenges the assistance of his counsel as ineffective. Court affirm the orders denying the motion to vacate thejudgments and deny the petitions for writ of habeas corpus.

Three times in one day, Norteo gang member David Hernandez fired a gun at two Sureo gang members or associates to settle a score with a Sureo who once shot at him. A jury found him guilty of assault with a firearm, criminal threats, and shooting at an occupied vehicle for the benefit of, at the direction of, or in association with a criminal street gang. On appeal, he argues two discovery issues, an insufficiency of the evidence issue, and a sentencing issue. Court remand for resentencing on the shooting at an occupied vehicle but otherwise affirm.

A jury found Michael Alan Gray guilty of possession of marijuana for sale. The sole issue on appeal is whether the admission in evidence of statements he made during booking without Miranda[1]warnings about past drug use was a prejudicial violation of his privilege against self-incrimination. court affirm.

A jury convicted Gregory McDonald of possession for sale of cocaine base (Health & Saf. Code, 11351.5). In a bifurcated trial, the court found true allegations that McDonald was convicted of, and served separate prison terms for, assault with force likely to produce great bodily injury in 1991 and 1996. (Pen. Code, 667.5, subd. (b).)[1] At sentencing, the court struck punishment on one of the prior prison term allegations and sentenced McDonald to five years in state prison comprised of the four-year midterm on the crime plus one year for the other prison term.

On December 3, 2006, around midnight, Ceres Police Officer Christopher Perry was on patrol when he spotted a truck driven by appellant, Thomas Ellis Moody. Perry made an enforcement stop because the registration tags on the back license plate of the truck appeared to have been peeled off and put back on. As he approached Moodys truck, Perry saw Moody make several movements towards the rear of the seat. Perry drew his gun and approached the drivers door. However, when Moody put his hands on the steering wheel, Perry holstered his gun. After determining Moody did not have a valid drivers license, Perry had him step out of the truck so Perry could have the truck towed. During an inventory search of the car, Perry found a hypodermic needle under a washcloth on the floorboard and a baggie containing .56 grams of methamphetamine stuffed in the space where the backrest meets the seat portion of the drivers seat.

Case law holds that if a defendant manages to file an anti-SLAPP motion pursuant to subdivision (b) of section 425.16 of the Code of Civil Procedure[1] in a case where the defendant otherwise has prevailed (e.g., on a demurrer), the defendant is still entitled to a hearing on the anti-SLAPP motion. (E.g., Liu v. Moore (1999) 69 Cal.App.4th 745 [defendant was entitled to hearing on anti-SLAPP motion even though underlying pleading was dismissed].) Any other result would work[] a nullification of an important provision of the statute, i.e., the attorney fee provision under subdivision (c). (Id. at p. 751.)
Here, the defendant has indeed otherwise prevailed, but the trial court still denied the defendant a hearing on her anti-SLAPP motion. We reverse the order and remand so that the defendant can have the hearing on her anti-SLAPP motion to which she is entitled.

The superior court sentenced defendant Kenneth Lawrence Perez to a 15 years-to-life prison term after a jury found him guilty of murder (Pen. Code, 187) and gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (d). On appeal defendant contends the trial court erred in denying his pretrial motions: (1) to exclude evidence of his two prior driving under the influence convictions as irrelevant and prejudicial; (2) to exclude his statements to the police allegedly taken in violation of Miranda v. Arizona (1966) 384 U.S. 436[86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda); and (3) to suppress the results of a blood test. Finding no error, Court affirm.

Defendant, 3 Arch Trustee Services, Inc. (Arch) conducted a nonjudicial foreclosure sale that resulted in excess sale proceeds. The sole issue raised on appeal is whether Arch had a duty to search for, verify, prioritize, and distribute the surplus funds to a junior lien holder, Banc of America Leasing & Capital, LLC (BofA), who had recorded a judgment lien against the property owner. We conclude the comprehensive statutory scheme regarding nonjudicial foreclosures (Civ. Code, 2924 to 2924k)[1] clearly delineates the limited role and duties of a trustee in a nonjudicial foreclosure sale, and those duties do not include the responsibility for searching and finding all possible judgment creditors. Given the recent rise in foreclosures, we appreciate the trial courts concerns regarding the issues posed by BofA in this case. However, the solution is better left to the Legislature as we find no legal or factual support for ignoring the clear statutory rules regarding the limited role of trustees. As will be discussed, there are significant public policies underlying the current legislative scheme. Attorneys for amicus curiae, United Trustees Association, warn a judicially created common law duty, over and above the enumerated statutory duties, will compel trustees to use the far more costly and time consuming interpleader procedure to determine how and to whom to distribute surplus proceeds. This would defeat the speedy remedy goals envisioned by the Legislature. Currently, junior lien holders have a complete notice and claim procedure outlined in section 2924j that requires no expansion by the judiciary. Accordingly, Court reverse the judgment.