CA Unpub Decisions

Robert Charles Lee (appellant) was convicted by jury of 35 counts in connection with attacks on 10 women over a period of nearly nine years. He was sentenced to multiple life terms and a separate aggregate determinate term in state prison. On appeal, he claims the trial court erred in imposing multiple consecutive indeterminate terms of 25 years to life in violation of the Penal Code section 667.61[1] prohibition against consecutive sentences for multiple sexual offenses committed against the same victim on a single occasion. He also contends his constitutional rights under the Sixth Amendment to the United States Constitution were violated by his inability to confront and cross-examine witnesses who performed genetic testing, and that the evidence on certain counts was legally insufficient to sustain conviction.
We agree that the trial court’s imposition of a life sentence for each
pre-September 20, 2006 sexual offense committed by appellant against the same victim on a single occasion was unauthorized. We reject appellant’s other contentions. We use our discretion to modify the judgment and otherwise affirm.

This is an appeal from an order denying an anti-SLAPP[1] motion made by appellant Dominique Merrick after she was sued for slander and intentional infliction of emotional distress by her friend Michelle Lund’s stepmother, Sherry Lund. The trial court found in Merrick’s favor on the issue of whether the allegedly slanderous statement was protected activity, but ruled against Merrick on the issue of whether Sherry had passed the probability-of-prevailing test.
We reverse. We agree that the statement was protected activity, but we disagree that Sherry produced enough evidence to support a prima facie case for either slander or emotional distress. The trial court should have granted the anti-SLAPP motion.

Paul Morris Blake pleaded guilty to felon in possession of a firearm (former Pen. Code § 12021, subd. (a), see now § 29800; all statutory citations are to the Penal Code), and felon in possession of ammunition (former § 12316, subd. (b)(1), see now § 30305). Blake contends he did not give police officers voluntary consent to search his residence, and the trial court erred in denying his motion to suppress evidence. (§ 1538.5.) For the reasons expressed below, we affirm.

In the middle of the night, police officers discovered defendant Man Minh Nguyen sleeping in his car with the motor running; marijuana was found inside the glove box and trunk of the car. The arresting officers did not see defendant drive the car.
Defendant argues the trial court erred by denying his Penal Code section 1118.1 motion to dismiss the charge of transportation of marijuana, based on the prosecution’s failure to prove the element of transportation. The record does not show sufficient evidence at the close of the prosecution’s case-in-chief to establish transportation; therefore, the motion should have been granted. We reverse the judgment, and direct that a judgment of acquittal be entered.

Pursuant to a plea agreement, appellant, Josh Stephen Gonsalves, pleaded no contest to attempted grand theft (Pen. Code, §§ 487, subd. (c), 664; count 1) and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a); count 3), and admitted an enhancement allegation that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). Consistent with the plea agreement, the court imposed a prison sentence of three years, consisting of the two-year midterm on count 3, and one year on the prior prison term enhancement. The court imposed a concurrent one-year term on count 1.
Appellant filed a timely notice of appeal. Appellant also requested a certificate of probable cause (Pen. Code, § 1237.5). The court granted that request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.
FACTS
At the time of appellant’s pleas, the prosecutor, in stating the factual basis for those pleas, stated the following: On May 22, 2012, appellant unsuccessfully “attempted to take property from the person of Sean Vernon.” When appellant was arrested for that offense, “he was found to have control over a firearm.” In 2009, appellant had suffered a felony conviction of burglary.

A jury found Albert Omar Martinez guilty of committing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1), count 1),[1] and attempting to commit a lewd act upon a child (§§ 664, 288, subd. (c)(1), count 2). The trial court sentenced Martinez to five years supervised formal probation. Martinez argues his federal and state due process rights were violated when the court failed to expressly rule on his motion to reduce his felony convictions to misdemeanors pursuant to section 17, subdivision (b). We disagree and affirm the judgment.

Jayne Hack got a bargain from the law firm of Gilbert & Marlowe in her divorce case. The deal was the law firm would only charge her $150 per hour. In return, however, she had to pay her bills on time and cooperate in any attempt to obtain attorney fees from the opposing side. If not, she would have to pay fees of $350 an hour.
Then came Gilbert & Marlowe’s final bill, for about $2,600. Up to then, Hack’s boyfriend had been paying the bills. He, however, had passed away about two months before the final bill. Now that Hack was going to pay the bill herself, she looked up her records and concluded Gilbert & Marlowe had overcharged her by billing 58.52 hours for the preparation of 44 subpoenas at 1.33 hours each. She balked at paying the final bill. Gilbert & Marlowe rebilled her for their services at $350 an hour. The difference amounted to just over $178,000. Hack didn’t pay the new, enlarged bill either, and the dispute escalated into this action – Hack suing first for overbilling and Gilbert & Marlowe cross-complaining for unpaid fees. At the end of the day Gilbert & Marlowe did not obtain the extra $178,000 they claimed. In fact, they now owed Hack, net, another $400.

A jury convicted defendants Neil Deontrai Duffey and William Deshawn Cartlidge of two counts of attempted premeditated murder (Pen. Code, §§ 187, 664, subd. (a); all further statutory citations are to the Penal Code), and two counts of second degree robbery (§ 211). The jury also found Duffey personally discharged a firearm inflicting great bodily injury (§§ 12022.53, subd. (d), 12022.7), and Cartlidge was armed with a firearm (§ 12022, subd. (a)(1)).
Duffey contends the prosecutor committed misconduct when she violated a pretrial ruling and elicited testimony from a prosecution investigator suggesting Duffey was one of the suspects in a surveillance video of the robbery. Cartlidge contends the trial court abused its discretion and denied him due process by declining to sever his trial from Duffey’s, and erred by failing to instruct the jury on premeditation and the theory of natural and probable consequences for the attempted murder charges. Both defendants challenge the sufficiency of the evidence to support the robbery conviction involving one of the victims. For the reasons expressed below, we affirm the judgment.

Pursuant to a plea agreement, appellant, Josh Stephen Gonsalves, pleaded no contest to attempted grand theft (Pen. Code, §§ 487, subd. (c), 664; count 1) and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a); count 3), and admitted an enhancement allegation that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). Consistent with the plea agreement, the court imposed a prison sentence of three years, consisting of the two-year midterm on count 3, and one year on the prior prison term enhancement. The court imposed a concurrent one-year term on count 1.
Appellant filed a timely notice of appeal. Appellant also requested a certificate of probable cause (Pen. Code, § 1237.5). The court granted that request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

Following a bench trial, the court convicted appellant, Angelito Garin Williamson, of oral copulation or sexual penetration of a child under the age of 10 (count 1/Pen. Code, § 288.7, subd. (b))[1]; oral copulation with a child under the age of 14 and more than 10 years younger than the defendant (count 3/§ 288a, subd. (c)(1)); forcible oral copulation (count 4/§ 288(a), subd. (c)(2)); and lewd and lascivious conduct by force with a child under the age of 14 (count 5/§ 288, subd. (b)(1)).
On appeal, Williamson contends the court violated his federal right to due process by its failure to question him regarding his rejection of a plea offer. We affirm.

Defendant and appellant Billy Lee Eakins appeals from an order denying his petition for recall of his indeterminate life term under Penal Code section 1170.126, subdivision (f).[1] We will affirm the order.
I
BACKGROUND
Defendant was convicted in August 1999 of residential burglary (§ 459) and receiving stolen property (§ 496). It was also found true that defendant had sustained two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12.)
In September 1999, the court sentenced defendant to 27 years to life in state prison.
On November 6, 2012, the electorate passed Proposition 36, also known as the Three Strikes Reform Act. Among other things, this ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the three strikes law to file a petition in the sentencing court, seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

Defendant and appellant William Anthony Hernandez was charged with felony diversion of construction funds. (Pen. Code, § 484b.)[1] On April 22, 2011, he entered a plea agreement, and pled no contest to misdemeanor diversion of construction funds. (§ 484b.) A trial court placed him on probation for a period of three years. The court ordered him to pay victim restitution, the amount of which was to be determined at a later hearing. On July 19, 2011, the People filed a restitution brief with supporting documentation, requesting victim restitution in the amount of $147,577. After numerous continuances, a restitution hearing was held on April 6, 2012. The court ordered victim restitution in the full amount.
On appeal, defendant contends that: (1) the victim restitution order must be reversed since the facts underlying the order were not found to be true by a jury, pursuant to Southern Union Co. v. United States (2012) 132 S.Ct. 2344 (Southern Union Co.) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); (2) the restitution order was excessive, in violation of the Eighth Amendment; (3) several of the costs enumerated in the restitution order were unrelated to defendant’s offense; (4) portions of the restitution order constituted a windfall to the victim; and (5) the restitution order must be reduced by at least $2,000. We affirm.

Prior to trial, defendant filed a motion to suppress evidence challenging the initial detention (Pen. Code, § 1538.5); the People filed an opposition to the motion; and defendant filed a reply to the opposition. The motion was heard and denied by the trial court.
A jury found defendant and appellant John Edward McGee, Jr., guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count 1); possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 2); transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a), count 3); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 4); and resisting a police officer by force or violence (Pen. Code, § 69, count 5). In a bifurcated proceeding, the trial court found true that defendant had suffered three prior convictions for selling or possessing a controlled substance for sale (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a), 11378) and that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total term of 15 years eight months in state
prison, with credit for time served.[2] Defendant’s sole contention on appeal is that the trial court erred in denying his suppression motion because the detention was unlawful. We reject this contention and affirm the judgment.

Castle & Cooke Lake Elsinore West, Inc., and Castle & Cook Alberhill Ranch, LLC, defendants and appellants (hereafter collectively referred to as Castle & Cooke), appeal from the stipulated judgment entered in this eminent domain action after the trial court granted the motion of Santa Ana Watershed Project Authority, defendant and respondent (hereafter SAWPA), to exclude evidence of severance damages at trial. The parties stipulated to entry of judgment awarding Castle & Cooke $5,179 as the fair market value of the real property SAWPA took for a pipeline easement. In this appeal, Castle & Cooke contend the trial court’s ruling was wrong and therefore the judgment must be reversed. We agree, for reasons we explain below.