CA Unpub Decisions

Darren Boyer Thomas was convicted by jury of rape of an incompetent person (Pen. Code, 261, subd. (a)(1)).[1] A second jury convicted him of committing perjury under oath in those proceedings ( 118, subd. (a)). That jury also found true the allegation that Thomas committed the perjury offense while he was out on bail on the rape charge ( 12022.1, subd. (b)). He was sentenced to a total term of 11 years state prison, consisting of the upper term of eight years for the rape count, one year (one-third of the midterm) for the perjury count, plus an additional consecutive term of two years for the on-bail allegation. Thomas appeals both judgments. As to the rape conviction, he contends that the trial court erroneously denied his motion to suppress evidence and sentenced him to the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). In challenging his conviction for perjury, he asserts that the court committed instructional error. Court affirm both judgments.

Steven Chris Mayas (Mayas) appeals from a trial court judgment that nullified his marriage to respondent Barbara A. Butler (Butler) on the grounds of fraud. Because substantial evidence supports the judgment, Court affirm.

Eugene H. Ward appeals from the judgment entered following his conviction on two counts of second degree murder and additional crimes arising out of Wards operation of a vehicle while intoxicated. Court affirm.

While hiking in lands owned and managed by Conejo Open Space Conservation Agency (COSCA), appellants and three other minors came upon a storm drain. They climbed into a catch basin and entered a drainage pipe, which angled sharply upward. Appellants turned back and waited at the mouth of the pipe while the three others continued to climb. On their descent, they slipped and collided with appellants, injuring them. Appellants filed a tort action against the City of Thousand Oaks and one of the minors, Dennis Urquhart, alleging a dangerous condition of public property and negligence. The City and Urquhart each moved for summary judgment, which the trial court granted. Court conclude that appellants failed to raise a triable issue of fact that there was a dangerous condition of public property or that Urquhart was negligent. Court affirm.

Plaintiff and respondent The Education Resources Institute, Inc. (TERI) is in the business of guaranteeing student loans. Defendant and appellant Christine Yokoyama executed promissory notes to obtain three student loans. After Yokoyama defaulted, the notes were assigned to TERI, which paid the original lenders and filed suit against Yokoyama. Judgment was entered in favor of TERI. Appealing from that judgment, Yokoyama contends: (1) the action was barred by the four year statute of limitations; and (2) the notes were discharged in bankruptcy. Court affirm.

Marty Paul Webb appeals from the judgment entered following his conviction by jury of second degree murder (Pen. Code, 187) with firearm use (Pen. Code, 12022.53, subd. (b)), personal discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal discharge of a firearm causing great bodily injury or death (Pen. Code, 12022.53, subd. (d)) and with court findings that he suffered two prior felony convictions (Pen. Code, 667, subd. (d)). The court sentenced appellant to prison for 70 years to life. Appellant claims the court committed trial errors. Court affirm the judgment.

Charles Lee filed a putative class action lawsuit on his own behalf and on behalf of all similarly situated drivers for Dynamex, Inc., a parcel delivery company, alleging Dynamex had improperly reclassified the drivers from employees to independent contractors in violation of California law. After first denying Lees motion to compel Dynamex to identify and provide contact information for potential putative class members, the trial court denied Lees motion for class certification. Because the trial courts discovery ruling directly conflicts with the Supreme Courts subsequent decision in Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 (Pioneer), as well as our decisions in Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554 and Puerto v. Superior Court (2008) 158 Cal.App.4th 1242 (Puerto), and that ruling improperly interfered with Lees ability to establish the necessary elements for class certification, Court reverse both orders and remand for further proceedings regarding class certification.

Ryan Patrick Madden appeals the judgment following his conviction for one count of first degree robbery and one count of second degree robbery. (Pen. Code, 211/212.5.)[1] The jury found true allegations that Madden personally used a handgun in the commission of both robberies. ( 12022.5, subd. (a), 12022.53, subd. (b).) Madden was sentenced to 15 years in prison, consisting of the 4-year midterm on the first degree robbery, two 5-year enhancements for the use of a handgun, and 1 year (one-third of the midterm) on the second degree robbery offense. He contends that the prosecutor committed misconduct during closing argument. Court affirm.

On January 11, 2007, after amendments to the Sexually Violent Predator Act (SVPA) that changed the term of commitment from two years to an indeterminate term became effective, a jury found true allegations pursuant to former Welfare and Institutions Code section 6604 that Merton George Yahn (defendant) is a sexually violent predator (SVP). The court ordered defendant committed to the custody of the Department of Mental Health (DMH) for two years under the prior law, and defendant filed a timely appeal. Court therefore correct the commitment order to specify that defendant is committed for an indefinite term, and in all other respects shall affirm the judgment.

In case Solano County Superior Court No. 178471, following a preliminary hearing at which a motion to suppress evidence was denied, defendant was held to answer on various drug charges. After the filing of a felony information, defendant renewed his motion to suppress via a motion to set aside the information under Penal Code section 995. That motion was denied. Thereafter, defendant was charged in a separate proceeding (Solano County Superior Court No. 185461) with offenses from a different incident. Both cases were resolved in a joint disposition, wherein defendant pled guilty to possessing methamphetamine in case No. 178471 and felony domestic violence in case No. 185461. In each matter, he was placed on three years of probation and ordered to serve 90 days in jail, consecutively, as a condition of probation.
On appeal, he challenges only the denial of his motion to suppress evidence. Consequently, below, we set forth only the facts in case No. 178471.

Appellant Geri Ann W., the mother of the dependent child, W.M. (W.), has appealed from the trial courts order terminating her parental rights and selecting adoption as the permanent plan for the child. (Welf. & Inst. Code, 366.26.) She claims the trial court failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq., hereafter the ICWA). Based on new information about W.s Indian ancestry that has been submitted by appellant during the pendency of this appeal, the matter must be remanded for the limited purpose of achieving ICWA compliance.

A.R. appeals from a dispositional order placing him on probation. He contends that the probation condition requiring that he have no gang associations is overbroad and vague. Court modify the condition, but otherwise affirm the order.

Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, establishes a process for striking complaints in strategic lawsuits against public participation (SLAPP).[1] SLAPP suits chill the exercise of free speech or the right of freedom to petition. In this appeal, we conclude that notarizing a written instrument is not an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue as that phrase is used in section 425.16, subdivision (e). Court reverse the trial courts order granting respondent Yevgeniya Lisitsas special motion to strike and her dismissal from the case. Court also reverse the trial courts attorney fee award in favor of Lisitsa, which was ordered after her dismissal from the case. Court dismiss appellant Jack Altmans purported appeal from the order denying reconsideration, finding that it is not an appealable order.

Plaintiff and appellant Lance Paris (Paris) sued his ex-employer, defendant and respondent USI of Southern California Insurance Services, Inc., a California corporation (USI). He alleged causes of action for breach of contract and for wrongful discharge in violation of public policy. Because there are triable issues of fact, Court reverse the summary judgment granted in favor of USI.