CA Unpub Decisions

A jury found Antriel Matthews guilty of committing a robbery (Pen. Code,[1] § 211) and that he committed the crime for the benefit of a criminal street gang (§ 186.22). Matthews admitted he had three prior felony convictions. (§ 1203, subd. (e)(4).) The court imposed a 13-year prison term, consisting of a three-year middle term for the robbery plus a 10-year consecutive term on the gang enhancement. The court also revoked Matthews's probation on three prior felony convictions, and imposed a middle term on each felony to run concurrently with the sentence on the current offense.
On appeal, Matthews contends the court erred by: (1) denying his mistrial motion based on his prosecutorial misconduct claim; and (2) denying his motion to strike the 10-year sentence on the gang enhancement. We reject these contentions and affirm.

Defendants and appellants Nicholas A. Boylan and his law firm, Law Offices of Nicholas A. Boylan, APC, (Boylan) and William P. Shannahan and his law firm, William P. Shannahan, Inc., (Shannahan) (collectively defendants) appeal the orders denying their respective anti-SLAPP motions brought under Code of Civil Procedure section 425.16[1] to strike the malicious prosecution action filed against them by plaintiff and respondent Cary Mack.[2] Boylan separately contends the court erred and abused its discretion when it denied Boylan's motion to disqualify Mack's counsel of record.
Mack was retained as a forensic accounting consultant/expert by Shannahan in a divorce proceeding filed by Shannahan's former wife (Shannahan v. Shannahan (Super. Ct. San Diego County, No. D483710)) (the dissolution action). While pursuing an appeal of the judgment in the dissolution action, Shannahan sued both Mack and certified family law specialist Rex Jones III and Jones's law firm, Jones Barnes LLP, (Jones),[3] who had represented Shannahan in the dissolution action. The operative complaint filed by Boylan on behalf of Shannahan asserted causes against Mack for breach of fiduciary duty, elder abuse, professional negligence, negligent misrepresentation and breach of contract (Shannahan v. Jones et al. (Super. Ct. San Diego County, 2010, No. 37-2009-00088253-CU-PN-CTL)) (the underlying action).
After extensive litigation and the filing of a motion for summary judgment, Shannahan—shortly before the motion was to be heard and a few months before trial was to commence—dismissed Mack without prejudice from the underlying action. Mack subsequently was awarded his costs of defense as the prevailing party. Mack then filed the instant malicious prosecution action against defendants. Defendants, in return, filed anti-SLAPP motions, which the court denied.
As we explain, we affirm the orders denying (1) defendants' anti-SLAPP motions and (2) Boylan's motion to disqualify Mack's counsel of record.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the order denying defendant’s motion to withdraw his plea.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Appointed counsel for defendant Carlos Montoya has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.[1] (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On September 6, 2012, officers conducted a probation search of defendant’s brother’s home. Defendant was in the shower when the officers arrived. When Officer Pelle requested defendant come out of the bathroom, she saw him turn quickly back to the bathroom and retrieve a black fanny pack. Defendant brought the bag with him and sat down on the couch in the living room, as requested.

In August 2004, defendant Billy Webb unlawfully possessed Vicodin. Because the matter was resolved by plea and the appellate record does not include a probation report, this statement of facts is taken from the stipulation of factual basis for the plea.
Defendant pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and a count of possession of an opium pipe (Health & Saf. Code, § 11364) was dismissed. Defendant was granted deferred entry of judgment (DEJ). (Pen. Code, § 1000; unless otherwise stated, statutory references that follow are to the Penal Code.) He was ordered to reimburse the public defender fund for one hour of billable time. The dollar amount of reimbursement was not specified.
In September 2004, a motion for entry of judgment was filed alleging defendant was no longer suitable for DEJ in that he failed to keep the probation officer advised of his places of residence and employment, including telephone numbers. In November 2004, defendant was removed from DEJ and placed on section 1210.1 probation. Defendant was ordered to pay a $630 fine “that includes appropriate penalty assessments,” a $200 restitution fine, a court security fee, and a $152.50 crime laboratory fee “that includes all assessments.” Defendant was ordered to reimburse the public defender fund for two hours of billable time; again, the dollar amount was not specified.

Defendant Alexander Scott Godfrey was charged with first degree burglary and an allegation that a person other than defendant or an accomplice was present. At a meeting before trial, defense counsel cursed at defendant and left the room. The trial court denied defendant’s motion to substitute counsel, and a jury found him guilty of the charge and found the allegation that a person other than defendant or an accomplice was present was true. On appeal, defendant contends the trial court abused its discretion in denying his motion to substitute counsel because his counsel’s actions created an irreconcilable conflict likely to result in ineffective representation. We disagree and affirm.

Defendant Spencer Dean Reynolds entered a plea of no contest to foreign object penetration on a victim under the age of 18 years (Pen. Code, § 289, subd. (h); count five).[1] The remaining counts and allegations (forcible rape, foreign object penetration by force or violence, two counts of sexual battery, and personal use of a deadly weapon) were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey).[2] The court sentenced defendant to state prison for the midterm of two years and ordered him to register as a sex offender.
Defendant appeals. He contends the trial court stated inadequate reasons for ordering him to register as a sex offender, specifically reasons for requiring lifetime registration. He also contends insufficient evidence supports the implied finding that he is likely to reoffend.
The People respond that remand is required for the trial court to state reasons for its exercise of discretion in ordering sex offender registration. We agree that remand is required.

Wanda W., mother of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code, §§ 360, 361, 395.)[1] Mother contends the juvenile court erred in failing to order services tailored to her needs as a developmentally disabled individual before determining she was unable to benefit from services pursuant to the bypass provision of section 361.5, subdivision (b)(2).[2] Mother does not argue that substantial evidence did not support the bypass order, but instead argues there is insufficient evidence to support the juvenile court’s finding that reasonable efforts had been made to provide necessary services to mother. Mother also argues she was denied due process because she did not have a fair opportunity to show whether she was capable of properly caring for the minors before services were bypassed. We conclude substantial evidence supports the juvenile court’s finding that reasonable efforts were made. We reject mother’s due process claim because she had notice the bypass provision was being considered and participated in the hearing on the issue. Accordingly, we affirm the judgment.

Wanda W., mother of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code, §§ 360, 361, 395.)[1] Mother contends the juvenile court erred in failing to order services tailored to her needs as a developmentally disabled individual before determining she was unable to benefit from services pursuant to the bypass provision of section 361.5, subdivision (b)(2).[2] Mother does not argue that substantial evidence did not support the bypass order, but instead argues there is insufficient evidence to support the juvenile court’s finding that reasonable efforts had been made to provide necessary services to mother. Mother also argues she was denied due process because she did not have a fair opportunity to show whether she was capable of properly caring for the minors before services were bypassed. We conclude substantial evidence supports the juvenile court’s finding that reasonable efforts were made. We reject mother’s due process claim because she had notice the bypass provision was being considered and participated in the hearing on the issue. Accordingly, we affirm the judgment.

Following a contested jurisdictional hearing, the juvenile court found the minor N.V. committed corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))[1] and vandalism (§ 594, subd. (a)). The juvenile court determined the section 273.5 offense was a felony and declared the minor a ward of the court. The court granted him probation and imposed various fines and fees.
On appeal, the minor contends (1) there is insufficient evidence to support the corporal injury to a cohabitant finding and (2) the Welfare and Institutions Code section 731 fine should be stricken because it was never imposed by the juvenile court. As to the first contention, we conclude there is insufficient evidence the minor and his victim cohabitated. Thus, we modify the corporal injury to a cohabitant finding to the lesser included offense of battery on a person with whom defendant had a previous dating relationship (§ 243, subd. (e)(1)). Because this modification reduces the offense to a misdemeanor, we remand the matter for a new dispositional hearing. With regard to the second contention, we note that if the juvenile court imposes fines, fees, or assessments at the new dispositional hearing, it must specify the amounts and statutory basis for all fines, fees, and assessments imposed.

Defendant Dinette Patterson was convicted of being a felon in possession of a firearm. During a traffic stop for a Vehicle Code violation, the police found a gun in his passenger’s purse. On appeal, defendant contends the trial court erred in denying his motion to suppress the evidence because: (1) the People were estopped from arguing that he did not have “standing” to challenge the search of the purse; and (2) the search of the purse was not supported by probable cause. We affirm.

Defendant Joseph Antone Patterson pleaded guilty to first degree burglary (Pen. Code, § 459; statutory references that follow are to the Penal Code), five counts of receipt of stolen property (§ 496, subd. (a)), felon in possession of a firearm (§ 12021, subd. (a)) and admitted two prior prison term allegations (§ 667.5, subd. (b)). The trial court imposed a stipulated term of 10 years in state prison and awarded 387 days of presentence credit, consisting of 259 actual days and 128 days of conduct credit. The trial court subsequently rejected two pro per motions from defendant seeking additional presentence credits.
On appeal, defendant contends he is entitled to additional conduct credits as a matter of equal protection because similarly situated defendants who post bail are entitled to earn conduct credits at a higher rate in state prison and because the trial court did not retroactively apply the conduct credit provisions of the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482). We affirm the judgment.

After 24 years of marriage, Georgia Henry (petitioner in the trial court) and Michael Henry divorced.[1] Following a three-day court trial, the trial court issued a statement of decision on numerous matters. Michael appeals, contending the court erred (1) in finding $161,000 from Georgia’s mother to build a cottage and upgrade a septic system was a gift, (2) in valuing the improvements, and (3) in awarding accounts receivable and a 1929 Ford Phaeton to him. We shall affirm the judgment.

Plaintiff John Trapasso sued defendants Jose Romero and Romero’s employer, Trees, Inc,. for injuries he suffered when his motorcycle collided with the truck that Romero was driving. The jury returned a defense verdict. Trapasso moved for a new trial on the basis, inter alia, of juror misconduct, submitting juror declarations showing that two jurors presented mathematical calculations to the jury and one juror found those calculations on the Internet. The trial court denied the motion for a new trial and Trapasso appeals. We find the juror declarations are insufficient to show juror misconduct. Accordingly, we shall affirm.