CA Unpub Decisions

Defendant, James Orlando Lucero, was convicted after a jury trial of one count of possession of heroin (Health & Saf. Code, 11350, subd. (a)), with five prior serious felony convictions within the meaning of the three strikes law (Pen. Code,[1] 667, subd. (d)) and five prior prison term enhancements ( 667.5, subd. (b)) found true. He was sentenced to the third strike term of 25 years to life. On appeal, defendant contends his third strike indeterminate term violates the federal and state constitutional prohibitions against cruel and/or unusual punishment. He also challenges three of the five prior strike convictions, which are based on burglary convictions in Utah, and contends there is insufficient evidence that the Utah convictions were for burglaries of inhabited dwellings, such that the offenses are not serious felonies under California law. Court will affirm.

Appellant R.C. was the biological, but not presumed father of E.P., a dependent child, whom the Fresno County Superior Court recently freed for adoption (Welf. & Inst. Code, 366.26).[1] He appealed from the order terminating parental rights and was appointed appellate counsel by this court to represent him. His court-appointed appellate counsel subsequently informed this court by letter that counsel was not filing an opening brief for lack of any arguable issue (In re Sade C. (1996) 13 Cal.4th 952). In turn, this court extended time for appellant to personally file a letter brief which he has since done. In his letter brief, appellant argues he is prepared to do what it takes to be a father and it seems premature to terminate my parental rights. His arguments, however, do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994). Consequently, Court affirm.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) (rule 8.452)) from respondent courts order setting a Welfare and Institutions Code section 366.26 hearing as to his daughter E. Court conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court will dismiss the petition as facially inadequate.

David K. Tran, Phuoc Vu, and Hoan Pham, appeal from an order denying their special motion to strike[1] a defamation action filed against them by the Nguyen family, after Vu and Pham, represented by Tran, obtained a substantial jury verdict against them. They contend the trial court erred in concluding the action did not arise out of protected activity. Court conclude the Nguyens complaint arose out of protected activity by Tran, Vu, and Pham, and the Nguyens failed to demonstrate a probability of prevailing. Accordingly, we reverse the order and remand with directions to grant the special motion to strike the defamation and related tort causes of action against Tran, Vu, and Pham.

After Joseph Juarez Johnson pleaded guilty to second degree burglary and admitted two prior offenses, the trial court used Johnsons juvenile criminal adjudication to enhance his current sentence as an adult. Johnson contends that his prior juvenile adjudication cannot be used to enhance an adult conviction because he was not afforded the right to a jury trial in the juvenile proceeding. Court disagree and the judgment is affirmed.

Plaintiffs A. Medina, M. Medina, and N. Medina appeal from a judgment entered after the court sustained a demurrer to their complaint without leave to amend. Plaintiffs had alleged defendant Nancy Pollard, a superior court judge, violated their federal civil rights by issuing an order barring A. Medina from taking his minor children, M. and N. Medina, out of the country.

Plaintiffs Atef Helmy, Talat Radwan, and Javed Chak appeal from the judgment in a declaratory relief action over the membership and control of the board of directors of a nonprofit public benefit corporation named the Orange County Islamic Foundation (OCIF). The trial court held the letter of resignation submitted by defendant Ribhi Ghosheh was effective immediately but, pending appointment of a successor, defendant Mohannad Malas remained a member of OCIFs board even after submitting his letter of resignation. The court also determined defendants were the prevailing parties and entitled to recover their costs. Plaintiffs appeal, contending the trial court erred by finding Malas remained a director of OCIF. They also challenge the award of costs to defendants. Court conclude the judgment must be affirmed.

Plaintiff Sharon Louise Borrege was a probationary employee of defendant California Department of Transportation when her employment was terminated effective July 2001. According to defendant, plaintiff was discharged because she was not a safe driver and had an unacceptable attitude toward safety and safe working practices. Plaintiff maintained that defendant had fired her, had restricted her from driving, and had refused to give her certain technical training based upon her gender or in retaliation for complaints she had filed with the Department of Fair Employment and Housing (DFEH). She sued defendant for violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, 12900 et seq.) The trial court granted defendants motion for summary judgment. Court shall affirm.

Appellant Anthony Castillo appeals from a judgment of conviction entered after he pleaded no contest to one count of owning, receiving, purchasing or possessing a firearm by a felon (Pen Code, 12021, subd. (a)(1)), one count of altering the identification of a firearm ( 12090),[1] and a misdemeanor charge of altering the coloration or marking required for an imitation firearm ( 12553). On appeal, appellant argues that some of the probation conditions that the court imposed when he was granted probation are unconstitutionally vague and overbroad. Respondent concedes that some, but not all, of the conditions need to be modified. Accordingly, Court address appellant's challenge to each condition in turn.

Real party in interest Karen Riley appeals from an order after hearing by the Alameda County Superior Court, ordering respondent Pierre Washington to pay her $54,177 for child support arrearages at the rate of $650 per month. She contends the trial court abused its discretion in setting the amount of child support as the courts finding as to respondents taxable income did not match the sum it used in the DissoMaster calculation. The matter is fully briefed. We shall dismiss this appeal on our own motion as untimely under California Rules of Court, rules 8.104(b) and 8.108(e)(2).

.S. (Mother) challenges an order of the San Francisco City and County Superior Court, made November 16, 2009, in which the court set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor C.Q. (born March 2008). Mother challenges the juvenile courts finding that the San Francisco Human Services Agency (Agency) offered or provided her with reasonable services. As discussed below, Court conclude substantial evidence supports the finding and deny Mothers petition on the merits.

R.H. (Mother) petitions this court (Cal. Rules of Court, rules 8.450, 8.452) for extraordinary relief seeking to set aside the order of the Alameda County Juvenile Court setting a permanent plan hearing (Welf. & Inst. Code, 366.26) for March 8, 2010, for her infant daughter, Briana H. Mother contends the section 366.26 hearing should be vacated because her counsel was denied the opportunity to cross-examine the social worker about an August 2009 incident that led to Mothers readmission to the psychiatric ward of John George Psychiatric Hospital. The Alameda County Social Services Agency (Agency) opposes the petition.

Appellant Aymar Torres was convicted following a jury trial of murder in the first degree. (Pen. Code, 187, subd. (a).)[1] The jury found true all six special circumstances and enhancements charged in the information: (1) the murder was carried out in furtherance of a criminal street gang ( 190.2, subd. (a)(22)); (2) the murder was committed while Appellant was engaged in a robbery ( 190.2, subd. (a)(17)); (3) Appellant personally and intentionally discharged a firearm, causing great bodily injury and death ( 12022.53, subd. (d)); (4) Appellant personally and intentionally discharged a firearm ( 12022.53, subd. (c)); (5) Appellant personally used a firearm ( 12022.53, subd. (b)); (6) the offense was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members ( 186.22, subd. (b)(1)(C)).

Defendant Robert Lee Lewis appeals from a judgment of conviction entered after a jury found him guilty on two counts of first degree murder (Pen. Code, 187, subd. (a)) and found true the allegations defendant committed more than one murder (id., 190.2, subd. (a)(3)); the murders were intentional and committed by lying in wait (id., 190.2, subd. (a)(15)); defendant personally used a knife in the commission of the murders (id., 12022, subd. (b)(1)); and defendant personally used and intentionally discharged a handgun in the commission of the murders, causing the death of the victims (id., 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant to consecutive sentences of life without the possibility of parole for the murders and an additional 50 years to life for the firearm use under subdivision (d) of Penal Code section 12022.53. It stayed the enhancements for use of a knife.