CA Unpub Decisions

Defendant was sentenced to prison for eight years. Concurrent jail terms were imposed for the misdemeanors. Defendant was awarded 187 days’ custody credit and 37 days’ conduct credit.
On appeal, defendant contends (1) his request to discharge his retained counsel was erroneously denied, (2) his felony grand theft conviction must be reduced to misdemeanor petty theft, and (3) principles of equal protection entitle him to additional conduct credit. Although defendant has forfeited any claim of error with respect to the trial court’s ruling on reconsideration denying his request to discharge retained counsel, we conclude there was no error. The trial court acted within its discretion to deny defendant’s untimely request. We agree with defendant that his felony grand theft conviction must be reduced to a misdemeanor petty theft because the threshold amount for grand theft had been increased to $950 and this increased amount applied to cases not yet final on appeal. As to defendant’s conduct credits, we reject defendant’s argument based on an opinion issued by the California Supreme Court. We also note the trial court made a mistake by applying the three strikes law’s limitation on postcommitment credits to defendant’s presentence conduct credits. As a result, we modify the judgment to reduce the felony grand theft conviction to a misdemeanor petty theft and dismiss the enhancement for committing a felony while released from custody. We remand the matter to the trial court to resentence defendant based on his conviction of three misdemeanors and recalculate his presentence conduct credits.

During his probationary period, plaintiff Richard Y. Kim was rejected from his position as a dentist employed by real party in interest Department of Corrections and Rehabilitation (Department) at Kern Valley State Prison, a maximum security prison. The rejection was upheld by defendant State Personnel Board (Board).
Plaintiff filed a petition for rehearing with the Board, which was denied. Next, plaintiff filed a petition for writ of administrative mandate with the trial court seeking a peremptory writ ordering the Board to reverse its decision and reinstate him to his position with full back pay and benefits. The trial court denied plaintiff’s writ petition, as well as his motion for new trial and renewed motion for new trial that followed.
Plaintiff appeals the denial of his writ petition, his motion for new trial, and his renewed motion for new trial. As we will explain, because plaintiff’s notice of appeal was not timely filed, we must dismiss the appeal.

James Clayton Howe appeals from the order denying his petition to recall his 25 year-to-life sentence pursuant to the procedures set forth under Penal Code[1] section 1170.126, added by Proposition 36, the Three Strikes Reform Act of 2012.
We appointed counsel to represent appellant in this appeal. After counsel's examination of the record, he filed an opening brief in which no issues were raised.
We advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. Appellant filed a supplemental letter brief which seeks a more favorable sentence.

Ashley J., mother of 13-month-old Destiny M., appeals from the disposition order of the juvenile court. She contends that the court erred by not ensuring proper notification under the Indian Child Welfare Act, title 25 of the United States Code section 1901 et seq. (ICWA) (Welf. & Inst. Code, § 224 et seq.).[1] We affirm.

Thearon Kennord Mister appeals from the judgment after he pled guilty to felony driving under the influence (DUI) with prior DUI convictions (Veh. Code, §§ 23550-23152, subd. (a)), and admitted three prior DUI convictions in Case No. 2009044181. In Case Number 2009042688, appellant pled guilty to one count of felony DUI with prior DUI convictions (Veh. Code, §§ 23550-23152, subd. (a)), admitted three prior DUI convictions, and admitted a prior strike conviction (Pen. Code, § 667, subd. (c)(2)). Pursuant to the negotiated plea, appellant was sentenced to an aggregate term of 40 months state prison and ordered to pay a $240 restitution fine (Pen. Code, § 1012.4, subd. (b)), a $240 parole revocation fine (Pen. Code, § 1202.45), and a $2,319 fine in each case.

A modification decision.

Following a jury trial, appellant Mario Hector Alamos was convicted of first degree murder (Pen. Code, § 187, subd. (a)).[1] The jury also found true numerous handgun enhancements (§§ 12022.53, subds. (b), (c) & (d)) and found that the crime was gang-related (§ 186.22, sub. (b)(1)(c)). Appellant was sentenced to two consecutive 25-year-to-life terms.
Appellant filed a notice of appeal. This court appointed counsel to represent appellant on appeal. On July 19, 2013, counsel filed a brief raising no issues but requesting the court independently review the record for arguable contentions pursuant to People v. Wende (1979) 25 Cal.3d 436.
On July 19, 2013, this court advised appellant he had 30 days to submit a supplemental brief raising appellate issues. Appellant has not filed such a brief with this court.

Oscar Diaz was convicted by jury of evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)) and hit-and-run driving (Veh. Code, § 20002, subd. (a).) In a bifurcated proceeding, appellant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and admitted serving two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to eight years state prison. Appellant appeals on the ground that the trial court erred in not sua sponte instructing on the defense of necessity. We affirm.

Defendant Hau Hong Cheng appeals from his convictions of battery upon a custodial officer and misdemeanor simple battery. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm.

Defendant and appellant, Durand Lance Dawson, appeals from the judgment entered following revocation of probation previously granted following his pleas of no contest to felony theft from an elder or dependent adult (Pen. Code, § 368, subd. (d)) and the misdemeanor of contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)). The trial court sentenced Dawson to four years in prison and ordered him to pay a total of $35,356.49 in restitution to the victims (Pen. Code, § 1202.4, subd. (f)). We affirm.

Defendants Joel Lopez and Juan Jose Madrid appeal from their conviction following no contest pleas to the charge of possession for sale of cocaine, entered after the trial court denied their joint motion to quash a search warrant. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm both convictions.

Appellant Harkham Industries, Inc. appeals from the trial court’s order granting the special motion to strike brought by respondents Jade Fashion & Co., Inc., Resch Polsert & Berger LLP, and Sandra Khalili pursuant to Code of Civil Procedure section 425.16.[1] This appeal arises out of a dispute over monies allegedly owed by Harkham Industries to Jade Fashion for the purchase of certain goods. Jade Fashion filed a civil action against Harkham Industries for breach of contract and other related claims based on allegations that Harkham Industries breached the parties’ written agreement by failing to make timely payments due under the terms of the agreement. While that action was pending, counsel for Jade Fashion sent a letter to counsel for Harkham Industries stating that a $30,000 check issued by Harkham Industries had been returned due to unavailable funds, and demanding that the unpaid amount be wired to Jade Fashion by the following business day. After making that payment and then confirming that the original check had in fact been paid, Harkham Industries filed a cross-complaint against Jade Fashion and its attorneys for fraud, conversion, and unjust enrichment.
The trial court granted the special motion to strike the cross-complaint. On appeal, Harkham Industries contends that the trial court erred in granting the motion because the allegedly fraudulent statements made in the letter did not pertain to any payments at issue in the underlying breach of contract action, constituted criminal conduct falling outside the scope of section 425.16, and were not protected by the litigation privilege. We conclude that the trial court properly granted the special motion to strike, and accordingly, affirm.

Appellant Candace Ellis appeals from the trial court’s order denying her petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. In her petition, Ellis sought an order directing the Department of Motor Vehicles (DMV) to set aside the suspension of her driver’s license for refusing to submit to, or failing to complete, a chemical test for her blood alcohol content in violation of Vehicle Code[1] section 13353, subdivision (a)(1). On appeal, Ellis argues the trial court erred in denying her writ petition because she never refused to submit to a chemical test, and even if she did refuse, she was not properly admonished about the consequences of doing so. She also asserts the trial court erred in denying her motion to augment the administrative record with a document which she contends could not have been produced at the administrative hearing in the exercise of reasonable diligence, and if admitted, would have proven that she in fact completed a chemical breath test. We affirm.

Timothy Jenkins appeals from the judgment entered after a jury convicted him of four counts of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)),[1] four counts of shooting from a motor vehicle at another person (former § 12034, subd. (c), now § 26100, subd. (c)), and one count of shooting at an inhabited dwelling. (§ 246.) On two counts of attempted voluntary manslaughter, the jury found true allegations that appellant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) On all four counts of attempted voluntary manslaughter, the jury found true allegations that appellant had personally used a firearm. (§ 12022.5, subd. (a).) On the four counts of shooting from a motor vehicle at another person and the one count of shooting at an inhabited dwelling, the jury found true allegations that appellant had personally and intentionally discharged a firearm causing great bodily injury to two victims. (§ 12022.53, subd. (d).) On all nine counts, the jury found true allegations that the offenses had been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Appellant was sentenced to prison for 40 years to life.
Appellant contends that the evidence is insufficient to support the true findings on the gang allegations. He argues that the People failed to show that the gang's "primary activities" qualify it as a "criminal street gang" within the meaning of section 186.22, subdivision (f). We affirm but direct the trial court to correct an error in the abstract of judgment.