CA Unpub Decisions

This is an appeal from an order disqualifying attorney David A. Cordier (Cordier) from representing his wife, appellant Shyla M. Cordier (Shyla), with respect to her petition to remove her brother, respondent Richard L. Holder (Richard),[1] as a successor cotrustee of their parents’ trust.[2] Shyla contends there is insufficient evidence to support the probate court’s finding that Cordier should be disqualified. We affirm.

Defendant Anna Kihagi (Kihagi) appeals judgment entered in favor of the City of West Hollywood (City) enforcing the parties’ prior settlement in which Kihagi, the owner of an eight-unit apartment building located in the City and subject to the City’s Rent Stabilization Ordinance, agreed she would not rent her withdrawn units for the time period the units were subject to the provisions of the Ellis Act.[1] We reverse.

Defendant and appellant Erick Bautista was convicted in count 1 of murder (Pen. Code, § 187, subd. (a)),[1] in count 2 of second degree commercial burglary (§ 459), in count 3 of attempted robbery (§§ 664, 211), and in count 5 of forgery (§§ 475, subd. (c), 476).[2] The jury found true the allegations that defendant committed the murder while engaged in commercial burglary and attempted robbery (§ 190.2, subd. (a)(17)), a principal personally used, intentionally discharged, and proximately caused great bodily injury or death with a firearm (§ 12022.53, subds. (b)-(e)), and the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).[3]
Defendant was sentenced to state prison for 50 years to life on count 1, consisting of 25 years to life for the first degree murder conviction and 25 years to life for the firearm enhancements. A determinate term of 16 years 4 months in prison was imposed as follows: three years for count 3, plus ten years for the gang enhancement; a consecutive eight months for count 2, plus one year for the gang enhancement; and a consecutive eight months for count 5, plus one year for the gang enhancement.
Defendant contends: (1) his combined sentences constitute cruel and unusual punishment; (2) the sentences in counts 2, 3, and 5 must be stayed under section 654; (3) the firearm enhancements for counts 2 and 5 must be stricken; and (4) the abstract of judgment must be corrected to reflect the trial court’s oral pronouncement that restitution be joint and several with his codefendants. The Attorney General concedes, and we agree, that the sentence in count 5 must be stayed, the firearm enhancements for counts 2 and 5 must be stricken, and the abstract of judgment must be corrected to reflect that restitution is joint and several. In all other respects, the judgment is affirmed.

X17, Inc. (X17), published on the Internet a video recording and photographs showing Peter Dice standing near and interacting with a man who was sitting beside Lindsay Lohan, a celebrity, outside a restaurant. The words “cocaina” and “droga” are heard on the recording as the seated man studies a small plastic bag and hands it to Dice. The caption of the video recording and an article published with it suggest that it depicts an illicit drug purchase involving Dice and Lohan.
Dice filed a complaint against X17 and its owner, Francois Navarre, alleging that the publication contained false and defamatory statements and violated his privacy and publicity rights. X17 and Navarre filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] The trial court granted the motion in part and denied it in part. Both sides appealed the order. X17 and Navarre contend the motion should have been granted in its entirety and the court erred by denying the motion in part. Dice contends the motion should have been denied in its entirety and the court erred by granting the motion in part.
We conclude that the trial court properly denied the special motion to strike as to Dice’s defamation counts and other counts. We reject the defendants’ contention that Dice is a limited purpose public figure who must prove actual malice and their contention that there was no provably false statement of fact. We also conclude that the court erred by granting the special motion to strike as to Dice’s count for commercial appropriation of likeness and violation of Civil Code section 3344 and that Dice presented evidence sufficient to overcome the “news exception” to liability based on violation of his publicity rights. We therefore will affirm the order in part and reverse it in part.

In an amended information filed by the Los Angeles District Attorney, appellants Dennis Wallace (Wallace), Raymond Gibbs (Gibbs), and Deeya Khalill (Khalill) were charged in count one with the murder of Adiel Quezada (Quezada; Pen. Code, § 187, subd. (a)).[1] In count two, Wallace and Khalill were charged with the murder of Tyronn Bickham (Bickham, § 187, subd. (a)). As to both counts, it was further alleged that a principal personally and intentionally discharged a firearm proximately causing the deaths. (§ 12022.53, subds. (d) & (e)(1).) A special circumstance of multiple murder was also alleged. (§ 190.2, subd. (a)(3).) In count three, Wallace and Khalill were charged with the attempted murder of Emond Taylor (Taylor; §§ 187, subd. (a), 664.) Pursuant to section 664, it was further alleged that the attempted murder was committed willfully, deliberately, and with premeditation. As to count three, it was also alleged that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) And, pursuant to section 186.22, subdivision (b)(1)(C), it was alleged that the charged offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang.
Appellants pled not guilty and denied the allegations. A jury convicted appellants of the charged offenses, found the murders in counts one and two to be first degree murders, and found the allegations to be true.

Appellants Andrew and Frances Kallman appeal from the judgment entered upon the trial court’s order granting respondent State Farm General Insurance Company’s motion for summary judgment. Appellants filed a complaint against State Farm, alleging causes of action for breach of contract and breach of the covenant of good faith and fair dealing, arising out of State Farm’s settlement of appellants’ homeowners insurance claim. State Farm moved for summary judgment on the ground that appellants’ action was barred by the one-year statute of limitations contained in appellants’ insurance policy. The trial court granted State Farm’s motion, finding that the statute of limitations began to run more than one year before appellants initiated suit against State Farm.
On appeal, appellants argue that the trial court erred in granting State Farm’s motion for summary judgment. Specifically, appellants contend the statute of limitations remained equitably tolled from the time they filed their insurance claim with State Farm on August 23, 2007, until the time they initiated the present action on November 3, 2010. For the reasons set forth below, the trial court’s judgment is reversed.

Appellant Gretchen Lichtenberger is the judgment creditor in a civil collection proceeding in Ventura County. When the judgment debtor failed to appear for a debtor's examination, the trial court issued an arrest warrant, fixing bail at $25,000. Instead of serving the warrant, the Santa Barbara Sheriff's Department (SBSD) "cited and released" the debtor. When the debtor appeared voluntarily at a subsequent hearing, the court recalled the warrant.
Faced with an uncollectible judgment, Lichtenberger filed this action against respondents County of Santa Barbara, SBSD, County of Ventura and Ventura County Sheriff's Office (VCSO), alleging that if they had fulfilled their mandatory duty to serve the warrant and collect the $25,000 bail, the bail would have been forfeited and applied to the judgment debt. She claims she is entitled to damages in that sum, plus declaratory and injunctive relief. The trial court sustained respondents' demurrer to the first amended complaint without leave to amend. We affirm.

Ricardo Manuel Nava, Jr., Ruben Nicholas Mize, Bryan Steven Medinilla, and Raul Junior Diaz appeal the judgments entered against them following two jury trials. In the first trial, appellants were charged with the murder of Lorenzo Carachure (Pen. Code,[1] § 187, subd. (a)), the attempted murders of Noe Carachure and Rogelio Hernandez (§§ 187, 664), and active participation in a criminal street gang (§ 186.22, subd. (a)). Mize was separately charged with the attempted murder of Prospero Sotelo.[2] Appellants were convicted of the substantive gang offense, and Mize was convicted of the attempted murder of Sotelo. The jury was unable to reach a verdict on the remaining counts, and the court declared a mistrial as to those charges. On retrial, Mize and Medinilla were found guilty of first degree murder (§ 187, subd. (a)), and Nava and Diaz were convicted of second degree murder. The jury also found true allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Mize and Medinilla personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)). Appellants were found not guilty of the attempted murders of Noe Carachure and Rogelio Hernandez. In a bifurcated proceeding, Nava admitted two prior serious or violent felony strike convictions (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)). The trial court sentenced Medinilla to a total term of 26 years to life in state prison, and Mize to a total term of 41 years to life. Nava and Diaz were each sentenced to state prison terms of 15 years to life.[3]

The Department of Real Estate (the Department) sought to revoke the real estate salesperson’s license it had issued to appellant Chandani Singh after Singh pleaded no contest to charges of felony child endangerment and contempt of court. After an administrative hearing, the Department found that Singh’s convictions were substantially related to the qualifications, functions, or duties of a Department licensee, as required by the Department’s regulations. It then revoked Singh’s license.
Singh challenged the Department’s decision by filing an action for administrative mandamus. (See Code Civ. Proc., § 1094.5.) She argued there was no evidence to support a finding that her convictions were substantially related within the meaning of the Department’s regulations. She also contended her contempt of court conviction was unsupported by the weight of the evidence. In addition, she alleged the Department had erred by predicating certain findings on administrative hearsay evidence.
The trial court disagreed with Singh and upheld the Department’s revocation of her license. Singh now appeals, and in this court she reprises the arguments she made below. We find them no more persuasive than did the trial court, and accordingly we will affirm its judgment.

A jury convicted defendant Jennifer Janet Robertson of grand theft of personal property in violation of Penal Code section 487, subdivision (a)[1] (count 1) and three counts of perjury by declaration in violation of section 118, subdivision (a) (counts 3, 12, 13). In all counts, the jury found true the allegation that prosecution for the crime had begun within four years of the date the crimes were committed within the meaning of section 803, subdivision (c).
The trial court suspended imposition of sentence and placed defendant on terms and conditions of probation, including spending 180 days in county jail and performing 300 hours of community labor in count 1. Based on the grand theft conviction in count 1, the court ordered defendant to pay $14,963.40 in restitution to the County of Los Angeles Stage One Child Care. In counts 3, 12, and 13, the trial court imposed 180 days for each count and 300 hours of community labor, to run concurrently.
Defendant appeals on the grounds that: (1) her conviction in count 12 for perjury by declaration must be reversed because she did not state that she worked for the named employer during that time period; (2) if this court affirms her conviction for theft, this court should remand the matter to the trial court to reconsider and recalculate the amount of restitution because the trial court mischaracterized the underlying convictions; and (3) if this court affirms her conviction for theft, this court should stay the sentences for any surviving perjury counts under section 654.

A jury convicted defendant, Luis Martinez, of first degree murder (Pen. Code, § 187, subd. (a)) [1] committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury further found a principal in the commission of the offense personally and intentionally discharged a firearm proximately causing the victim’s death. (§ 12022.53, subds. (d), (e)(1).) Defendant was sentenced to 50 years to life in state prison.
Defendant was one of nine people charged with the murder. He did not directly perpetrate the murder. He was convicted as an aider and abettor. One theory of criminal liability was that the murder was a natural and probable consequence of the target offense of an assault with force likely to cause great bodily injury. Defendant was alleged to have aided and abetted in the aggravated assault, the target offense. On appeal, defendant argues the jury should have been required to find that the willful, deliberate and premeditated aspect of murder was a reasonably foreseeable consequence of the aggravated assault. In this regard, defendant argues the jury should have been so instructed. And defendant argues the jury should have been required to find willful, deliberate and premeditated murder was a natural and probable consequence of the aggravated assault, the target offense. This issue is presently before our Supreme Court. We conclude the jury was properly instructed. We affirm the judgment.

Defendant Ernesto Alcarez appeals from the judgment entered on his convictions for one count of murder for the shooting death of Cheryl Green and seven counts of attempted murder. Alcarez was convicted as an aider and abettor under the natural and probable consequences doctrine, based on his role as the lookout assisting his fellow gang member, Jonathan Fajardo, who shot multiple rounds at a group of African-American men, women and children who were socializing in front of a residence in the Hispanic gang’s territory.
Alcarez contends that the trial court gave the jury a misleading instruction regarding the “kill zone” theory, which theory permits a jury to find a defendant guilty of attempted murder where it finds that the defendant intended to kill everyone in the vicinity of a primary target in order to ensure that the primary target was killed. He contends that the particular instruction given, CALJIC No. 8.66.1, permitted the jury to find him guilty of attempted murder on an aiding and abetting theory merely because Fajardo exposed the victims to a risk of harm, and as phrased the instruction did not require a finding that Fajardo intended to kill the victims. He further contends that the phrase “kill zone” used in the instruction is a provocative and unnecessary description that is impermissibly argumentative. We reject both contentions and find no error in the trial court’s “kill zone” instruction.
Alcarez also challenges his sentence, arguing that the imposition of eight consecutive enhancement terms pursuant to section 12022.53, subdivision (d),[1] totaling more than 200 years to life, violates the prohibition against cruel and unusual punishment. He further contends that his trial counsel rendered ineffective assistance in failing to object to the sentence on this ground. We conclude that his sentence does not constitute cruel and unusual punishment, and thus his trial counsel did not render ineffective assistance by failing to so object.
Alcarez further contends, and the Attorney General concedes, that the abstract of judgment erroneously states that Alcarez was convicted of attempted willful, deliberate, and premeditated murder in counts 2 through 8. Although the jury found Alcarez guilty of seven counts of attempted murder, it found not true the allegations that the offenses were willful, deliberate, and premeditated. Therefore, we order the abstract of judgment to be corrected to delete the notations suggesting that the attempted murders in counts 2 through 8 were willful, deliberate and premeditated. We further order the abstract of judgment to be corrected to state the $150 victim restitution fine owed to Charlene Lovette.
Finally, we conclude that the trial court imposed an illegal sentence when it imposed one-third the midterm for each of the attempted murder counts (counts 2 through 8) consecutive to the indeterminate term for the murder count (count 1). Instead, the court should have chosen a determinate term for one of the attempted murder counts from the triad of available sentences for that crime (5, 7, or 9 years (§ 664)) plus applicable enhancements, and then, consecutive to that term, imposed terms of one-third the midterm (plus enhancements) for the remaining attempted murder counts. The court then should have combined the sentences on those counts with the indeterminate term (plus the applicable enhancement) for the murder count (count 1) to reach a total aggregate sentence, with the determinate sentence on the attempted murder counts to be served first. We therefore remand for resentencing, but otherwise affirm.

Defendant Ernesto Alcarez appeals from the judgment entered on his convictions for one count of murder for the shooting death of Cheryl Green and seven counts of attempted murder. Alcarez was convicted as an aider and abettor under the natural and probable consequences doctrine, based on his role as the lookout assisting his fellow gang member, Jonathan Fajardo, who shot multiple rounds at a group of African-American men, women and children who were socializing in front of a residence in the Hispanic gang’s territory.
Alcarez contends that the trial court gave the jury a misleading instruction regarding the “kill zone” theory, which theory permits a jury to find a defendant guilty of attempted murder where it finds that the defendant intended to kill everyone in the vicinity of a primary target in order to ensure that the primary target was killed. He contends that the particular instruction given, CALJIC No. 8.66.1, permitted the jury to find him guilty of attempted murder on an aiding and abetting theory merely because Fajardo exposed the victims to a risk of harm, and as phrased the instruction did not require a finding that Fajardo intended to kill the victims. He further contends that the phrase “kill zone” used in the instruction is a provocative and unnecessary description that is impermissibly argumentative. We reject both contentions and find no error in the trial court’s “kill zone” instruction.
Alcarez also challenges his sentence, arguing that the imposition of eight consecutive enhancement terms pursuant to section 12022.53, subdivision (d),[1] totaling more than 200 years to life, violates the prohibition against cruel and unusual punishment. He further contends that his trial counsel rendered ineffective assistance in failing to object to the sentence on this ground. We conclude that his sentence does not constitute cruel and unusual punishment, and thus his trial counsel did not render ineffective assistance by failing to so object.
Alcarez further contends, and the Attorney General concedes, that the abstract of judgment erroneously states that Alcarez was convicted of attempted willful, deliberate, and premeditated murder in counts 2 through 8. Although the jury found Alcarez guilty of seven counts of attempted murder, it found not true the allegations that the offenses were willful, deliberate, and premeditated. Therefore, we order the abstract of judgment to be corrected to delete the notations suggesting that the attempted murders in counts 2 through 8 were willful, deliberate and premeditated. We further order the abstract of judgment to be corrected to state the $150 victim restitution fine owed to Charlene Lovette.
Finally, we conclude that the trial court imposed an illegal sentence when it imposed one-third the midterm for each of the attempted murder counts (counts 2 through 8) consecutive to the indeterminate term for the murder count (count 1). Instead, the court should have chosen a determinate term for one of the attempted murder counts from the triad of available sentences for that crime (5, 7, or 9 years (§ 664)) plus applicable enhancements, and then, consecutive to that term, imposed terms of one-third the midterm (plus enhancements) for the remaining attempted murder counts. The court then should have combined the sentences on those counts with the indeterminate term (plus the applicable enhancement) for the murder count (count 1) to reach a total aggregate sentence, with the determinate sentence on the attempted murder counts to be served first. We therefore remand for resentencing, but otherwise affirm.

A jury convicted defendant Jennifer Janet Robertson of grand theft of personal property in violation of Penal Code section 487, subdivision (a)[1] (count 1) and three counts of perjury by declaration in violation of section 118, subdivision (a) (counts 3, 12, 13). In all counts, the jury found true the allegation that prosecution for the crime had begun within four years of the date the crimes were committed within the meaning of section 803, subdivision (c).
The trial court suspended imposition of sentence and placed defendant on terms and conditions of probation, including spending 180 days in county jail and performing 300 hours of community labor in count 1. Based on the grand theft conviction in count 1, the court ordered defendant to pay $14,963.40 in restitution to the County of Los Angeles Stage One Child Care. In counts 3, 12, and 13, the trial court imposed 180 days for each count and 300 hours of community labor, to run concurrently.
Defendant appeals on the grounds that: (1) her conviction in count 12 for perjury by declaration must be reversed because she did not state that she worked for the named employer during that time period; (2) if this court affirms her conviction for theft, this court should remand the matter to the trial court to reconsider and recalculate the amount of restitution because the trial court mischaracterized the underlying convictions; and (3) if this court affirms her conviction for theft, this court should stay the sentences for any surviving perjury counts under section 654.