CA Unpub Decisions

Appellant Jose Daniel Hernandez appeals the trial court’s denial of a motion to vacate a 22-year-old conviction for one count of possession of a controlled substance (cocaine) for sale (Health & Saf. Code, § 11351), which followed his guilty plea. He argues he was not adequately advised of the immigration consequences of his plea as required by Penal Code section 1016.5.[1] Because a certificate of probable cause is required to appeal the denial of a motion to vacate based on section 1016.5 (People v. Placencia (2011) 194 Cal.App.4th 489 (Placencia)), and because the trial court denied appellant’s request for a certificate, we dismiss the appeal.[2]

Defendant Silvestre Cabrera forced his minor daughter, M.M., to download pornographic videos on a computer and watch them with him. He was initially charged with the misdemeanor offense of annoying or molesting a child (Pen. Code, § 647.6, subd. (a), hereafter section 647.6),[1] to which he pled guilty. When the police later discovered that the computer hard drive contained files depicting minors engaged in sex acts, defendant was charged with felony possession of matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a), hereafter section 311.11). Defendant moved to dismiss the section 311.11 charge under section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), contending that the charge arose from the same course of conduct as the section 647.6 conviction. The trial court denied the motion, concluding that the prosecution had acted with due diligence in discovering the existence of the child pornography on the computer. Later, in a bench trial, defendant was convicted of violating section 311.11. He was sentenced to three years in state prison and ordered to register as sex offender under section 290.
On appeal from the judgment of conviction, defendant contends that the trial court erred in denying his motion to dismiss. We agree. Substantial evidence does not support the trial court’s finding of due diligence, and no exception to the bar of section 654 and Kellett applies. Therefore, we reverse the judgment.

Plaintiff M&M Media Group, Inc. (M&M) owns a building on Sunset Boulevard in West Hollywood, California, that houses the famed music venue “Whisky a Go Go” (the Whiskey). Atop the building is a billboard structure that, as relevant here, M&M leased to defendant Regency Outdoor Advertising, Inc. (Regency). When M&M terminated the lease, and entered a new lease with cross-complainant Ace Outdoor Advertising, Inc. (Ace), Regency initially refused to recognize the termination of its lease, and later asserted ownership of horizontal beams affixing the billboard structure to the roof of the Whiskey. The dispute resulted in M&M (as plaintiff) and Ace (as a cross-complainant) suing Regency for various causes of action, and Regency cross-complaining against M&M and Ace. In a court trial, M&M prevailed on its claims against Regency for breach of a lease agreement and intentional interference with business advantage, and Ace prevailed on its claims for interference with contract and prospective business advantage. The trial court awarded compensatory damages of $676,000 to M&M and $302,932.50 to Ace, and punitive damages to M&M and Ace in the same amounts.
Regency appeals from the judgment, contending that the trial court violated the litigation privilege (Civ. Code § 47, subd. (b))[1] by finding Regency liable based on legal positions Regency asserted during the parties’ dispute over ownership of the billboard structure. We disagree. Regency’s liability was based not on its articulated legal positions, but on its non-communicative conduct of wrongfully holding over after the termination of the lease. Further, substantial evidence supports the trial court’s finding that Regency held over. Finally, we find no error in the court’s damages calculations.

Defendant, Abdul Kaliq Khan, appeals from a Code of Civil Procedure section 527.6 civil harassment restraining order. [1] The restraining order was secured by plaintiff, Hashim Ansari. Defendant was ordered to stay away from plaintiff and the Inglewood Jamat-e-Masjid-ul Islam (the mosque). Mr. Ansari is the mosque’s prayer and religious leader. The trial court granted plaintiff’s petition. Defendant contends the trial court erred by not hearing testimony from witnesses considering hearsay and extending the scope of the restraining order to the mosque. We affirm the order.

A jury convicted defendant, Gary Wayne Williams, of two counts of first degree burglary (Pen. Code,[1] § 459) and three counts of first degree home invasion robbery (§ 211). The jury further found there was another person present at the time of the burglaries and a principal was armed with a handgun in the commission of each offense. (§§ 460, subd. (a), 667.5, subd. (c)(21), 12022, subd. (a)(1).). The trial court found defendant had two prior serious or violent felony convictions (§§ 667, subds. (a)(1),
(b)-(i), 1170.12) and had served prior separate prison terms (§ 667.5, subd. (b)). Defendant was sentenced to 24 years in state prison. We modify the judgment with respect to assessments and custody credit. We remand for an ability to pay hearing with respect to the local crime prevention programs fine (§ 1202.5, subd. (a)) and applicable penalties. We affirm the judgment in all other respects.

Defendant Young Woo Kim appeals from the judgment entered following his conviction by jury of conspiracy to commit first degree burglary and two counts of first degree robbery, with the finding that he voluntarily acted in concert with two or more persons in the commission of the robberies. (Pen. Code, §§ 182, subd. (a)(1), 211, 214, subd. (a)(1)(A).)[1] Defendant was found not guilty of first degree burglary and assault with a stun gun or taser.[2] (§§ 459, 244.5, subd. (b).) He contends: (1) tapes of an accomplice’s interviews with police were improperly admitted; (2) his statement to police should have been excluded because he was not properly advised of his Miranda rights;[3] (3) the convictions are unsupported by the evidence; (4) the testimony of an accomplice was not sufficiently corroborated; (5) the court erred by refusing to disclose the jurors’ contact information; and (6) the court improperly imposed the upper term sentence for the robbery conviction. Finding no error, we affirm the judgment.

Francisco Jair Guerrero appeals the judgment entered after a jury convicted him of attempting to dissuade a victim from reporting a crime or causing an arrest (Pen. Code,[1] § 136.1, subd. (b)). The jury also found true allegations that appellant committed the crime for the benefit of the West Park criminal street gang (§ 186.22, subd. (b)(4)), and had suffered a prior serious felony conviction that qualified as a strike (§§ 667, subds. (a)(1), (d)(1), & (e)(1), 1170.12, subds. (b)(1), (c)(1)). Prior to sentencing, appellant filed a motion for new trial alleging, among other things, that the evidence was insufficient to support the jury's true finding on the gang enhancement allegation. Immediately after the trial court granted the motion on that ground, the prosecutor requested that the gang enhancement allegation be dismissed and the court proceeded to do so. Appellant was sentenced to 11 years in state prison and was awarded 596 days of presentence custody credit. He contends on appeal that the evidence is insufficient to support his conviction. He also contends the court abused its discretion in denying his Romero[2] motion and in declining to reduce the substantive offense to a misdemeanor. The People also appeal, contending the court abused its discretion in dismissing the gang enhancement allegation. We affirm.

Pinnock represented Barbara Humphrey (Humphrey) in a lawsuit against defendant Gingerbread Court L.P. (defendant), alleging violations of the Americans With Disabilities Act (42 U.S.C. §§ 12182(a) et seq.), the Unruh Civil Rights Act (Civ. Code, §§ 51 and 52), and the Disabled Persons Act (Civ. Code, §§ 54, 54.1 and 54.3). Defendant alleged Humphrey and her counsel, appellant Pinnock, were vexatious litigants, and filed a motion for a security and prefiling order pursuant to Code of Civil Procedure[2] sections 391.1 and 391.7, subdivision (a). The basis for the motion was not that Humphrey had filed multiple, unsuccessful lawsuits in propria persona (she had not), but that her counsel, Pinnock, was using her as a “straw plaintiff” in order to skirt the vexatious litigant statute. Defendant submitted evidence Pinnock had filed over 2,000 lawsuits against nearly 10,000 small businesses, either in his name, in the name of an association formed by him, or in the name of indigent individuals who acted as plaintiffs in name only, including more than 50 lawsuits filed in Humphrey’s name during 2009, none of which resulted in a judgment for Humphrey. Defendant also submitted evidence going to the merits of the lawsuit, including photographs of signage directing the physically disabled to alternative access points and thus refuting the allegation that the defendant’s property had no such signage, and the sworn statement of counsel that he had personally inspected the premises and found none of the alleged violations. Notably, Pinnock did not submit a declaration of plaintiff Humphrey that Pinnock was prosecuting this case on her behalf.
On June 16, 2009, Judge Terry B. Friedman heard arguments on defendant’s Motion for Security and Prefiling Order. Defendant argued the reasoning of Camerado Insurance Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838 supported its “straw plaintiff” theory. That case held a plaintiff who files a lawsuit in propria persona and otherwise meets the criteria of a vexatious litigant cannot avoid the vexatious litigant statute by hiring an attorney to prosecute her lawsuit. Defendant stated: “There’s not really any difference between a nonattorney who’s a vexatious litigant who hires an attorney to get around the statute than there is if there’s a vexatious attorney who hires – who uses a straw plaintiff to get around it. They both try to get around the legislative intent, which is to require a person found to have been a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes a target of one of these obsessive and persistent litigants.” The trial court continued the hearing to give Pinnock additional time to respond to the hundreds of pages of evidence defendant had submitted in support of its motion.
On June 22, 2009, Pinnock filed a Response to Defendant’s Reply. Again, Pinnock filed no evidence in support of its opposition.

Defendant and appellant Harvey Morrow appeals his conviction for first degree murder, committed for purposes of financial gain. He was sentenced to life in prison, without the possibility of parole.
Morrow contends: the trial court erred by denying his motion to dismiss on double jeopardy grounds; the evidence was insufficient to prove premeditation and deliberation; the trial court committed various instructional errors and erroneously admitted evidence; and his sentence constitutes cruel and unusual punishment. We affirm.

Defendant Jeremy Dorough appeals from an order revoking his probation and sentencing him to prison. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.

Defendant Dwayne Lavell Robinson (appellant) admitted firing several gunshots into a group of people, killing one and injuring two others, but claimed he acted in self-defense. A jury disagreed, convicting him of second degree murder (Pen. Code, § 187, subd. (a)) and assault with a firearm (id., § 245, subd. (a)(2)), and finding true firearms enhancements (id., §§ 12022.5, subd. (a), 12022.53, subds. (b)-(d), 12022.7, subd. (a)). He now appeals, contending (1) the trial court erroneously denied his motion for a new trial based on a newly-discovered scene in surveillance video footage (footage) of the shooting, (2) aspects of the prosecutor’s closing argument constituted prosecutorial misconduct, (3) the prosecution’s failure to disclose the scene from the footage was a Brady[1] violation, and (4) a ruling precluding the use of two witnesses’ prior convictions under Evidence Code section 1103 was prejudicial error. We reject appellant’s contentions and affirm.

Samuel Lee Persons was convicted by a jury of first degree murder and torture and sentenced to an aggregate state prison term of 61 years to life. On appeal Persons contends the trial court misstated the People’s burden of proof in response to an objection during closing argument and improperly instructed the jury on aiding and abetting and torture. He also contends the prosecutor misstated the law of provocation in closing argument. We affirm.

Jorge Falcon appeals from the judgment following his conviction by jury of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187/664, subd. (a)),[1] with findings that the crime was for the benefit of a criminal street gang, and that appellant used a firearm. (§§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b), (c) & (e)(1).)[2] The trial court sentenced him to state prison for 30 years to life, including a consecutive 10-year gang enhancement. (§ 186.22, subd. (b)(1)(C).)
Appellant contends: (1) the gang benefit and personal firearm use findings are not supported by substantial evidence; (2) the trial court violated his constitutional rights by allowing the prosecutor to ask the gang expert hypothetical questions which included appellant's name, and counsel's failure to object to such questions deprived him of the effective assistance of counsel; (3) the court abused its discretion by denying appellant's request to disclose confidential juror information; and (4) the court erred by imposing a 10-year gang enhancement for premeditated attempted murder. Respondent correctly agrees with the last contention. We will strike the gang enhancement and remand the matter to the trial court with directions. In all other respects, we affirm the judgment.

Plaintiff Kevin King sued the County of Los Angeles as well as Sheriff’s Deputies Anthony Montes, Jason Johnson, Ryan Clinkingbread, Shaun Kennedy and Sergeant Richard Mejia[1] in connection with an incident which took place at the Men’s Central Jail while plaintiff was housed there in pretrial detention. In his first amended complaint, plaintiff alleged that while he was lying on the ground incapacitated, Sergeant Mejia: “placed his knee into [p]laintiff’s back, grabbed [p]laintiff’s hair [and] lifted and slammed [p]laintiff’s face into the floor 3 or 4 times. . . . Then, Deputy Nunez approached from [p]laintiff’s left side and punched [p]laintiff in the face. Plaintiff was also hit hard by Deputy Kennedy and Deputy Clinkenbeard [sic] who kneed [p]laintiff’s face causing a fracture of [p]laintiff’s left [orbital bone].” Soon thereafter, while plaintiff was handcuffed and lying face down on the floor, “[p]laintiff received a vicious kick to the back of his head causing his chin to violently strike the hard floor, resulting in a fractured jaw.” After the kick was delivered, plaintiff heard Kennedy say, “‘[R]emember, this is our house.’”