CA Unpub Decisions

Around December of 2005, defendant and appellant Marshall Smith began having a sexual relationship with his biological daughter, Jane Doe, a minor under the age of 16. The relationship included sexual intercourse and oral copulation. The relationship continued through March or April of 2006. On December 17, 2007, an information was filed against defendant. The information charged defendant with four counts of unlawful sexual intercourse with a minor under the age of 16 years under Penal Code section 261.5, subdivision (d) (counts 14); and four counts of unlawful oral copulation of a person under 16 under section 288a, subdivision (b)(2) (counts 58). The information also alleged that defendant had one prison prior under section 667.5, subdivision (b); and one strike prior under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).

Appellant, Albert Ledesma III, pled no contest to transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) in the instant case. In case No. BF122472A Ledesma pled no contest to evading a police officer (Veh. Code, 2800.2) and admitted a prior prison term enhancement.

On November 25, 2008, the court sentenced Ledesma to the lower term of two years in the instant case, which the court ordered to run concurrent with the aggregate four-year term it imposed in case No. BF122472A. On appeal, Ledesma contends the court abused its discretion when it denied his Pitchess motion. Court will find merit to this contention and remand the matter for further proceedings. In all other respects, Court affirm.

Appellant, Jesus Esteban Villegas, was a self-proclaimed Del Rey Norteo street gang member. On September 17, 2007, Villegas was driving a car with a passenger when a rival gang member walking on the street gestured at them. Villegas turned his car toward the rival gang member, accelerated, and drove up on the sidewalk at him. Villegass car struck the rival gang member, pushing him into a wrought iron fence, over the car, and onto the sidewalk. Villegas and his passenger fled from the scene but Villegas was arrested on November 17, 2007. On March 6, 2008, Villegas waived a preliminary hearing.

On September 26, 2007, appellant, Michael Paul Alvizo, was charged in an information with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)).[1] The information alleged a great bodily injury enhancement ( 12022.7). On October 4, 2007, appellants attorney, Michael Dolan, informed the court there was a conflict. Dolan was relieved as counsel and replaced by the public defender. Appellant appeared with new counsel, J.W. Harrott, on February 8, 2008. On September 16, 2008, appellant was represented by attorney Ana Soares who made a motion for a continuance because two key witnesses were not in California. On September 22, 2008, the trial court granted appellants motion and vacated the date set for trial.

Baldemar Sanchez petitions this court for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,[1] 5950; Cal. Rules of Court, rule 8.495.) Sanchez contends the WCAB erred in concluding that his employers conduct was negligent, thus avoiding serious and willful misconduct penalties ( 4553), by failing to properly train and supervise a co-employee in operating a piece of heavy machinery. Finding the WCABs decision supported by substantial evidence, Court must deny the petition.

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

A jury found defendant David Busio Lopez guilty of the felony offenses of inflicting corporal injury on a current or former spouse or cohabitant (Pen. Code, 273.5, subd. (a))[1], false imprisonment ( 236, 237(a)), and preventing or dissuading a person from reporting a crime ( 136.1, subds. (b)(1), (c)(1)). At a bench trial, the court found beyond a reasonable doubt that defendant had previously been convicted of two serious felonies and had suffered five prior convictions that qualified as strikes within the meaning of the three strikes law ( 667, subds. (a)(1), 1170.12). After denying defendants motions for a new trial and to strike the prior convictions, the court sentenced him to state prison for an aggregate term of 30 years to life.
On appeal, defendant challenges the admission into evidence of uncharged domestic violence acts and prior domestic violence convictions. He also challenges the denial of his motion for a new trial based on ineffective assistance of counsel. Court affirm.

A client discharged the attorney representing him in a civil suit and retained new counsel. After the lawsuit settled in favor of the client, the former attorney sought to recover legal fees he claimed were owed to him under his written retainer agreement. The former attorney filed a notice of lien in the underlying action, corresponded with successor counsel regarding his claim for fees, and filed a cross-complaint seeking the fees in an interpleader action filed by the settling defendant. The client brought a malpractice action against the former attorney, which included causes of action based on these efforts to enforce the lien. Court conclude the attorneys efforts to recover his fees by asserting a contractual lien against settlement proceeds was activity protected under the anti-SLAPP provisions of Code of Civil Procedure section 425.16 (hereafter, section 425.16). Because the trial court properly determined there was no probability the client would prevail on the claims arising from this conduct, Court affirm its order granting the attorneys special motion to dismiss those causes of action.

After her motions to suppress evidence were denied, defendant Ana Vanessa Mejia pleaded no contest to grand theft (Pen. Code, 487, subd. (a)). Imposition of sentence was suspended and defendant was granted probation. Defendant contests the suppression rulings, arguing that she was being unlawfully detained when she began making incriminating statements. Court hold that no detention occurred and affirm the order for probation.

Plaintiffs are investors in a limited partnership. Defendant Sanford Diller controlled the corporate general partner of their partnership. In a prior trial (hereafter the Prometheus trial) from which Diller was severed, plaintiffs recovered compensatory damages against the general partner for breach of fiduciary duty, but they were denied punitive damages. Following a largely unsuccessful appeal of that judgment, the general partner satisfied it. Diller then moved for judgment on the pleadings, contending plaintiffs could not recover against him because their economic damages had been compensated. Plaintiffs contended they should be permitted to proceed against Diller for recovery of the punitive damages denied against the general partner. The trial court granted judgment to Diller, concluding the one satisfaction rule precluded any further proceedings. Court affirm, finding plaintiffs punitive damages claims against Diller barred under the doctrine of collateral estoppel.

Sharon Lee Fawcett appeals from a judgment entered after a jury convicted her of transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)), driving on a suspended or revoked license (Veh. Code, 14601.1, subd. (a)), and driving without a current license. (Veh. Code, 12500, subd. (a).) She contends (1) the trial court erred when it ruled she was not eligible for Proposition 36 probation, (2) the court abused its discretion when it prevented her from presenting a complete defense, (3) the evidence was insufficient to support the transportation count, (4) the court erred when it denied her motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, (5) the court erred when it denied her motion for a new trial, (6) the court erred when it ordered her to pay attorney fees, and (7) she received ineffective assistance of counsel. Court reject these arguments and affirm the judgment.

This action contests the City of Richmonds (City) issuance of a permit for the construction of a cellular telephone antenna facility on the roof of an apartment building. Richmond Residents for Responsible Antenna Placement, an association of some 130 residents of the City of Richmond, filed a petition for a writ of mandate and declaratory relief action challenging issuance of the permit on the grounds that the City issued the permit in violation of state and federal due process clauses, the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.), and the Richmond Municipal Code. The trial court denied the petition and plaintiffs subsequent motions for new trial and to vacate judgment. Court also find plaintiffs challenges lack merit, and affirm the judgment.

S.J. (mother) appeals from orders terminating her parental rights over seven-year-old twins Z. and Za. N., and selecting adoption as their permanent plan after a hearing under Welfare and Institutions Code, section 366.26.[1] She does not challenge the merits of the rulings but claims reversible error in (1) denials of motions, late in the hearing, to relieve and substitute counsel, and (2) failure to comply with notice mandates of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the orders.

Petitioner contends that her trial counsel was incompetent for failing to object to the condition of probation that requires her to submit to drug testing. Petitioner argues that the condition was unlawful here because drugs were not involved in the offense, she does not use drugs, and she has no history of drug abuseaccording to the probation report, petitioner reported no illicit drug use other than experimenting with marijuana several years before the offense. However, the court has broad discretion in imposing conditions of probation (People v. Balestra (1999) 76 Cal.App.4th 57, 65), and drug testing conditions are lawful because they are reasonably related to future criminality (see In re Kacy S. (1998) 68 Cal.App.4th 704, 710, citing People v. Lent (1975) 15 Cal.3d 481, 486). Since it is not reasonably probable that an objection to the condition would have been sustained, the claim of ineffective assistance of counsel lacks merit. (People v. Fosselman (1983) 33 Cal.3d 572, 584.) The petition for writ of habeas corpus is denied.