CA Unpub Decisions

Alberto Salazar appeals from an order entered on September 26, 2007, adjudicating issues raised in an order to show cause filed by Aleyda Rozo de Salazar. There were several issues addressed in the courts order, and Albertos[1] aptly named brief is not a model of clarity; however, it appears he is specifically challenging the courts award of past-due spousal support. Alberto suggests the court erred in failing to ascertain that Aleyda had remarried at some point during the relevant arrears period, and that he had otherwise made payments sufficient to satisfy his obligation. Court affirm the order. It is Albertos burden to affirmatively demonstrate that the trial court erred, and both his brief and the record he has provided to us are wholly inadequate to sustain that burden.

William Glynn was injured when his car collided with a tree, allegedly because contaminated grease on the throttle cable of his 1996 Honda Accord caused the accelerator to stick. Glynn sued Honda and brought a motion for summary judgment.

After defendant Hany Wasef failed to respond to discovery requests, the trial court entered an order compelling responses. When Wasef still failed to respond to discovery, the court awarded terminating sanctions, struck Wasefs answer to the complaint, and entered his default. Wasef filed a motion to set aside his default, pursuant to Code of Civil Procedure section 473; the trial court denied the motion, and Wasef appealed from the ensuing judgment. Court affirm.

Dorian L., father of David L., appeals from the termination of his parental rights. He claims the Orange County Social Services Agency (SSA) failed to give him proper notice of the hearing pursuant to Welfare and Institutions Code section 366.26,[1]thus depriving him of due process. He also claims the juvenile court had insufficient evidence on which to base its finding that the Indian Child Welfare Act (25 U.S.C.A., 1901 et seq.) (ICWA) did not apply. While we find the father was not deprived of due process, we agree the ICWA finding was not based on sufficient evidence. Accordingly, we reverse and remand for the limited purpose of ICWA compliance.

Natasha L. appeals from the juvenile courts order declaring her eight-year-old daughter, J.L., and five-month-old son, Justin L., dependent minors, vesting Justins custody in the Orange County Social Services Agency (SSA), and vesting J.L.s custody with her father, Cesar G., with exit orders. She maintains the evidence was insufficient to support the findings of jurisdiction and removal. Court disagree and affirm the courts order.

A jury convicted appellant Kevin Nhat Tran of one count of first degree residential burglary and two counts of criminal threats in violation of Penal Code section 422. The court placed him on three years probation, including a condition that he serve 365 days in jail. His sole argument on appeal is that no substantial evidence supports the convictions for criminal threats. Although he concedes the victim was understandably afraid as a result of appellants threats, he argues there is no evidence the victim was reasonably in sustained fear for his safety. The evidence supports the conviction and thus the judgment will be affirmed.

Defendant Jimmie Lee Wilkins was charged by information with grand theft of personal property exceeding $400 from Frances Ortiz (Pen. Code,[1] 484. 487, subd. (a); count 1); receiving stolen property, a check ( 496, subd. (a); count 2); petty theft from Bank of America with a specified prior ( 666; count 3); petty theft from Ortiz with a specified prior (count 4); and first degree burglary ( 459, 460, subd. (a); count 5). The information further alleged that defendant had a prior serious felony conviction ( 667, subd. (a)) and three prior strikes ( 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). Prior to trial, defendant and the prosecutor stipulated for purposes of counts 3 and 4 that defendant had a prior conviction under section 496, and that he had served a prison term for the offense. A jury convicted defendant of counts 1, 2 and 3, but was unable to reach a verdict as to counts 4 and 5. The court found true the allegations that defendant had three prior strikes and that he had served three prior prison terms. The court granted defendants Romero motion[2] as to count 3, but denied it as to counts 1 and 2, and sentenced defendant to the indeterminate term of 25 years to life consecutive to the determinate term of three years eight months. The court also ordered defendant to pay victim restitution.
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, defendant contends that trial counsel rendered ineffective assistance when she failed to object to admission of evidence admitted under Evidence Code section 1101, subdivision (b). Court dispose of the petition by separate order.

After trial, a jury convicted defendant Jose Monteverde of three counts of forging or uttering three forged checks, a $400.00 check dated March 5, 2004, another check for $400.00 dated June 30, 2004, and a $300.00 check dated July 21, 2004 (counts 2, 3, 4, respectively; Pen. Code, 470, subd. (d)) and one count of taking property worth more than $400 from Margaret Garlock, a person 65 or older, by forgery, fraud, or theft. (Count 1; 368, subd. (d).) The court suspended imposition of sentence and placed defendant on probation for three years, on conditions, among others, that he serve six months in jail and not work for elderly or disabled persons.
On appeal, defendant essentially asserts that he was convicted under the wrong subdivisions, that the prosecution really proved violations of section 368, subdivision (e), not (d), and of section 470, subdivision (a), not (d). He also claims that he was prejudiced by the introduction of numerous ATM withdrawals by the victim and that the theft conviction should be stayed under section 654. For the reasons stated below, we will find no prejudicial error and will affirm the judgment. By separate order filed concurrently with this opinion, we will dispose of defendants petition for writ of habeas corpus asserting that both his trial attorneys were incompetent.

Defendants Susan E. and D.P. appeal from the trial courts denial of their special motion to strike plaintiff Carla M.s first amended complaint and petition. Defendants motion to strike was brought pursuant to Code of Civil Procedure section 425.16,[1] the anti-SLAPP (strategic lawsuit against public participation) statute. The amended complaint, which alleges fraud and constructive fraud, seeks to rescind defendants adoption of P.P. and to reestablish plaintiffs parental rights. Defendants contend that the amended complaint falls within the statute because the causes of action arise from defendants right to petition. Specifically, defendants argue that the amended complaint is based on defendants statements and writings made before a judicial proceeding or in connection with an issue under consideration or review by a judicial body, or . . . official proceeding authorized by law. ( 425.16, subd. (e)(1), (2).) Accordingly, defendants claim the court erred in denying the special motion to strike. Court disagree, and affirm the trial courts order.

Appellant, John H. Lee, appeals from a judgment entered after the trial court granted a motion for judgment on the pleadings without leave to amend. While the appeal was pending, respondent filed a motion here to dismiss the appeal as untimely. Finding that the appeal from the judgment is untimely pursuant to rule 8.104 of the California Rules of Court, Court grant the motion and dismiss the appeal.

Defendant Michael Anthony Ybarra appeals from a judgment of conviction entered after he pleaded no contest to second degree burglary (Pen. Code, 459/460), petty theft with a prior conviction (Pen. Code, 666), and resisting a peace officer (Pen. Code, 148, subd. (a)(1)). Defendant also admitted that he had suffered six prior strike convictions and had served three prior prison terms (Pen. Code, 667.5). The trial court sentenced defendant to a term of 25 years to life. On appeal, defendant contends that the trial courts inducement that it was inclined to grant his Romero motion[1] in exchange for his no contest pleas, coupled with its incomplete and misleading statements regarding the scope of its discretion, rendered his pleas invalid. Court find no error and affirm.

This appeal arises from appellant Victoria Kelloggs attempt to collect costs, including attorneys fees, incurred in enforcing a judgment against respondent Lowell F. Anderson. On July 5, 2000, Kellogg obtained a judgment in her favor that included an award of attorneys fees in the amount of $22,566.92. Anderson failed to satisfy the judgment and Kellogg filed a motion seeking attorneys fees and costs incurred in her efforts to enforce the judgment. After Kellogg filed the motion, but before the motion was granted on March 27, 2006, Anderson satisfied the judgment. Thereafter, in a memorandum of costs filed June 8, 2006, Kellogg claimed that she had incurred additional attorneys fees in enforcing the judgment. In August 2007, Kellogg filed another motion for attorneys fees and costs for enforcement efforts made after June 8, 2006. In this motion, she also sought a writ of execution in an amount that included (1) the attorneys fees and costs awarded pursuant to the March 27, 2006 order, (2) the attorneys fees claimed in her June 8, 2006 memorandum of costs, and (3) the attorneys fees and costs for enforcement efforts after June 8, 2006. The trial court denied the motion in an order filed November 26, 2007.
The November 26, 2007 order is reversed and the trial court is directed on remand to hold a hearing limited to the issue of whether appellant Victoria Kellogg can make the showing required for issuance of a writ of execution to enforce the March 27, 2006 order, including a showing of the total amount of money awarded under the March 27, 2006 order. ( 699.520.) The parties may submit additional evidence and argument at this
hearing. If Kellogg makes the required showing, then the trial court shall direct the clerk of the court to issue a writ of execution to enforce the March 27, 2006 order.

Defendant Denise Salazar had a blood alcohol level of .30 percent when, after leaving a bar, she sped down a street in San Jose at 60 miles per hour, ran a red light, crossed over into oncoming traffic, and hit another car head on. One of defendants passengers had asked her to stop before she ran the red light because he thought she was driving too fast. The driver of the other car was injured, as were defendant and her two passengers.

On May 2, 2007, defendant and appellant Luis Victor Barba was charged with attempted murder. (Pen. Code, 664, 187, subd. (a).)[1] It was also alleged that defendant committed the crime for the benefit of a criminal street gang. ( 186.22, subd. (b)(5).) On October 1, 2007, defendant pled guilty to assault with force likely to produce great bodily injury. ( 245, subd. (a)(1).) On November 8, 2007, defendant was granted three years formal probation. On appeal, defendant argues that some of the probation conditions are invalid and unconstitutional as applied to him. Court disagree and affirm.