CA Unpub Decisions

A jury found defendant David Joseph Allen guilty of assault with a deadly weapon and attempting to make a criminal threat. (People v. Allen (July 16, 2012, C068155) [nonpub. opn.].)[1] He admitted a prior serious felony allegation and a prior prison term allegation. In the prior appeal, this court reversed the assault conviction because the prosecution relied on, and the jury was instructed with, a legally incorrect theory, i.e., that feet and hands could be deadly weapons. We remanded the matter for possible retrial and resentencing.

Officers executed a search warrant at defendant Peter Jesse Johnson’s home, conducted an analysis of his computer, and located more than 30 videos depicting minors (some under 10 years old) committing acts of sexual intercourse with adults.
Defendant pleaded no contest to possession or control of child pornography. (Pen. Code, § 311.11, subd. (a).)[1] The trial court granted defendant’s motion to reduce the offense to a misdemeanor (§ 17, subd. (b)), denied his equal protection challenge to the imposition of sex offender registration, and placed defendant on formal probation for three years with various terms and conditions, including 360 days in jail and the requirement that defendant register as a sex offender.
On appeal, defendant reasserts his claim that it violates equal protection to impose mandatory lifetime sex offender registration on his misdemeanor conviction for possession of child pornography.
We conclude the holding in People v. Gonzalez (2012) 211 Cal.App.4th 132 (Gonzalez) is on point. A person convicted of possessing child pornography, an offense requiring mandatory registration, is not similarly situated to a person convicted of unlawful sexual intercourse with a minor, an offense for which registration is at the discretion of the trial court, and hence defendant’s equal protection claim lacks merit. We will affirm the judgment.

A jury found defendant Dustin Gregory Heier guilty of elder abuse and assault with a deadly weapon in the stabbing of his housemate; and guilty of misdemeanor receipt of stolen property. It also found true allegations defendant inflicted great bodily injury on the victim and personally used a knife in the attack. Defendant admitted one prior prison term enhancement allegation. (Pen. Code,[1] § 667.5, subd. (b).)
On appeal, defendant contends the trial court failed to advise him of his Boykin-Tahl[2] rights prior to accepting his enhancement admission. We agree. Therefore, we reverse the prior prison term finding as not supported by a valid admission, vacate defendant’s sentence, and remand the matter to the trial court for retrial of the enhancement and resentencing.

A jury convicted defendant Michael Marks of inflicting injury upon a cohabitant resulting in a traumatic injury, assault with a deadly weapon, kidnapping, criminal threat, and false imprisonment by violence or menace, all based on a November 23, 2009 attack against Dena Marks.[1] The jury also found that defendant knew and reasonably should have known that Dena was “developmentally disabled.”

Plaintiff and appellant Stephanie Pickart filed a complaint against defendant and respondent Adi Ben-Shahar (Shahar), alleging causes of action for intentional and negligent infliction of emotional distress stemming from his alleged failure to vacate a rental property in accordance with a local ordinance. The trial court granted Shahar’s special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] It ruled the complaint involved protected activity because Shahar’s conduct in failing to vacate the property was related to a pending unlawful detainer action, and appellant failed to establish a probability of prevailing.
We reverse. Guided by Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1284 (Clark), “[w]e conclude [appellant’s] claims did not arise from a protected activity—they are based on [Shahar’s] violation of rent control laws, not on actions in furtherance of the right of free speech or petition.”

Michael Eugene Scott appeals from a judgment following a guilty plea pursuant to a plea agreement. According to facts taken from the preliminary hearing transcript, on August 4, 2009, Los Angeles Police Department (LAPD) Detective Joe Alves along with other LAPD officers were investigating narcotics activity in the area of Pico Boulevard and Cloverdale Avenue in the County of Los Angeles. A narcotics suspect named Howard[1] who had been cited earlier for possession of a cocaine pipe was under surveillance. Appellant drove slowly into the area, pulled his car into a driveway next to Howard, and began speaking to him. Appellant reached towards the passenger side of the car as Howard looked up and down the street. Howard pointed to LAPD Officers Peko and Barrigan, who were sitting in a police car. Howard said something to appellant, and appellant immediately drove away. Detective Alves detained appellant pending a narcotics investigation and asked permission to search appellant’s car. Appellant told Detective Alves to “go ahead and check it.”

Appellant William B. (Father) appeals from the juvenile court’s orders denying his motions to dismiss dependency petitions filed pursuant to Welfare and Institutions Code section 300,[1] a jurisdiction order sustaining a dependency petition under section 300, subdivision (b), and a disposition order declaring the child Jade B. a dependent of the court and terminating jurisdiction with a family law order giving Rebecca R. (Mother) sole physical and legal custody and requiring that Father not contact Jade.
We affirm. Both the initial and the amended dependency petitions stated a basis for jurisdiction under section 300, subdivision (b) on the basis of Father’s lying about and exaggerating Jade’s medical condition and his harassment of medical professionals. Further, substantial evidence supported jurisdiction, as the evidence showed his conduct created a risk of harm to Jade. Finally, the juvenile court acted within its discretion in terminating jurisdiction with a no-contact order, as Father’s conduct demonstrated that less restrictive alternatives would not be effective to protect Jade.

Plaintiff and appellant Jacqueline Bazikian sued defendant and respondent, Nasser Gholian Moghadam, M.D., an anesthesiologist, following a “failed” liposuction procedure. The trial court sustained without leave to amend separate demurrers to causes of action for medical battery and fraud by intentional misrepresentation and concealment of fact. We affirm.

Appellant Aaron Renae Johnson appeals from the judgment entered upon his conviction by jury of first degree burglary (Pen. Code, § 459, count 1),[1] and receiving stolen property (§ 496, subd. (a), count 2). Following a bifurcated bench trial, the trial court found true the allegations that appellant had suffered two prior convictions qualifying as both serious felonies (§ 667, subd. (a)(1)) and as strikes (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), the “Three Strikes” law), and two prior prison terms (§ 667.5). Prior to sentencing, the court denied appellant’s Romero[2] motion to strike his prior strike convictions. The court sentenced appellant to an aggregate term of 62 years to life consisting of the following: 25 years to life on count 1; a consecutive 25 years to life on count 2; two consecutive five-year terms for the prior serious felony enhancements; and two consecutive one-year terms for the prior prison terms.
Appellant contends that (1) the trial court abused its discretion in denying his Pitchess[3] motion for discovery, (2) the trial court abused its discretion by allowing a police officer to give hearsay testimony, (3) the trial court erred in giving the reasonable doubt instruction (CALCRIM No. 2.20), (4) the trial court failed to provide a statement of reasons for imposing consecutive rather than concurrent terms, and (5) there was insufficient evidence to support the trial court’s finding that appellant suffered a prior conviction for attempted burglary.
Finding no merit to appellant’s contentions we affirm the judgment.

Defendants World Christian Theological University (World Christian) and Moses Joon Suk Lee (Moses Lee) appeal judgment after a jury awarded plaintiff Yong Pyo Hong (Hong) compensatory and punitive damages in Hong’s action arising from his employment at World Christian. Hong, who holds a doctorate in theology, moved his library of in excess of 15,000 theological volumes to World Christian’s library at the invitation of World Christian’s president, Moses Lee. Hong asserted his books were needed by World Christian to obtain accreditation that would permit World Christian to issue student visas. Shortly after Hong moved his library to World Christian, World Christian terminated his employment and refused to return his books. When Hong went to the campus and attempted to retrieve his books, he was hit by Moses Lee in the mouth and lost several teeth.
After a jury trial, the jury returned a verdict in favor of Hong against defendants on claims for battery, fraud, and conversion, awarding compensatory and punitive damages. World Christian and Moses Lee assert (1) insufficient evidence supports the jury’s finding of battery, (2) the trial court erred in failing to grant a continuance to permit defendants to secure the attendance of two witnesses on the issue of whether a battery occurred, and (3) the punitive damage award was excessive. Hong has moved for sanctions on the ground that defendants’ appeal is frivolous. We affirm, and deny the motion for sanctions.

Petitioner is a condemned prisoner at San Quentin awaiting a retrospective competency hearing based on a decision by the Ninth Circuit Court of Appeals and then, subsequently, this court. Here, petitioner argues that his counsel’s motion to withdraw should have been granted and that his motion for a new appointed counsel under Marsden[2] was erroneously denied without a hearing. We issued a stay and asked for and received informal opposition and reply.[3]

Dena G. (mother) appeals from orders of the Contra Costa County Juvenile court finding the 14-year-old child was a dependent child as described by Welfare and Institutions Code section 300 and removing the child from her custody. The sole issue raised by mother is the failure of respondent Contra Costa County Children and Family Services Bureau (the Bureau) to comply with the notice requirements under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). The Bureau concedes that ICWA notice requirements were not met. Consequently, we believe that a limited remand is required. In light of this concession, we need not describe the underlying facts giving rise to the dependency or the bases for the court’s jurisdiction and disposition orders.[1]
We have reviewed the record and it is clear that despite notice that the maternal family claimed the child had Indian heritage, a finding by the court that the child “may be” an Indian child, and an order that the Bureau provide notice of the proceedings and the tribes’ right to intervene to all identified tribes, the Bureau failed to comply with ICWA. The record contains no evidence that the Bureau provided the requisite notice and, if so, whether any response was received.
The Bureau argues that any error to comply with notice requirements requires only a limited remand here. (See, e.g., In re Brooke C. (2005) 127 Cal.App.4th 377, 385.) Mother seeks reversal of the jurisdiction and disposition orders. In In re Brooke C., the court discussed insufficient ICWA notice in the context of a dispositional order. The court concluded that an ICWA notice error is not jurisdictional, and therefore ordered a limited remand to the juvenile court for the agency to comply with ICWA notice requirements, with directions to the juvenile court depending on the outcome of such notice. (Id. at pp. 385-386.) We are aware that other courts have held that a violation of the ICWA constitutes jurisdictional error. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781.) However, we are persuaded that In re Brooke C. states the better view—that the error here was not “jurisdictional” in the fundamental sense and that reversal is only appropriate where parental rights have been terminated. (In re Brooke C., at p. 385; see In re Jonathon S. (2005) 129 Cal.App.4th 334, 340-343.) Appellant’s parental rights were not terminated here. Consequently, the appropriate remedy is remand for ICWA compliance.

Barbara Soules appeals from the trial court’s order denying her motion for attorney fees pursuant to Code of Civil Procedure section 1021.5.[1] We affirm.

Odyssey Landscaping Company, Inc. (Odyssey), appeals from a judgment issued after a bench trial awarding eight of its former employees[1] a total of $200,880.49 in unpaid wages, penalties and interest. We affirm.