CA Unpub Decisions

This is an appeal from an order denying appellant’s request for a preliminary injunction. An order denying a preliminary injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6); see Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 338, fn. 1.) Appellant, plaintiff Ralphs Grocery Company, contends two California laws protecting labor picketing violate constitutional protections of free speech.

Defendant and appellant Gary Dean Heckman pleaded no contest pursuant to a plea agreement to one felony count of possession of a controlled substance (hydrocodone) in violation of Health and Safety Code section 11350, subdivision (a). Defendant requested immediate sentencing, and the trial court granted probation on specified terms and conditions. Defendant filed a notice of appeal, contending that the search warrant that led to the discovery of the drugs was unlawful. He requested and was denied a certificate of probable cause. We affirm the judgment.

A jury convicted defendant and appellant George Joseph Solari of one count of arson of property (Pen. Code, § 451, subd. (d), count 1)[1] and two counts of arson of forest land (§ 451, subd. (c), counts 3 & 4). The jury also found true the allegations that defendant had suffered two prior prison terms. (§ 667.5, subd. (b).) A trial court sentenced defendant to a total term of eight years in state prison. The court also ordered defendant to pay various fines, including $386.82 in victim restitution to the San Bernardino City Fire Department, pursuant to section 1202.4.
On appeal, defendant argues that the court erred in awarding victim restitution to the San Bernardino City Fire Department. The People correctly concede.

Defendant Ronald William Ward appeals from his indeterminate commitment as a sexually violent predator (SVP) under Welfare and Institutions Code[1] section 6600 et seq. He contends his indeterminate commitment term violates his constitutional rights to due process and equal protection, as well as the ex post facto clause. We find no error, and we affirm.

In this case, the prosecution and the defense presented radically different versions of the events that occurred at a party in Fontana in August 2009. It appears the jury generally accepted the defense version, finding defendant Jacob Aaron Rock guilty only of a lesser misdemeanor offense of assault on a police officer (Pen. Code, § 241,[1] subd. (c)) rather than the charge of assault on a police officer with a deadly weapon (§ 245, subd. (c)) in count 1, found not true the allegation of great bodily injury as to that count (§ 12022.7), and voted 11 to 1 and 10 to 2 in favor of acquittal on two additional counts of resisting executive officers (§ 69).[2] Defendant contends the trial court erred in refusing to instruct the jury with his requested instruction on willful destruction of evidence. We agree that the trial court abused its discretion by failing to impose an appropriate sanction in the event the jury made a factual finding of willful destruction of evidence; however, we find the error harmless, and we affirm.
Defendant Jacob Aaron Rock appeals from his conviction of misdemeanor assault on Police Officer Shane McCoy (§ 241, subd. (c)) as a lesser included offense to the charge of assault on a police officer with a deadly weapon (§ 245, subd. (c)).[3] Defendant contends the trial court erred in refusing to instruct the jury with a requested instruction on willful destruction of evidence. Although we agree the trial court failed to instruct the jury properly on willful destruction of evidence, we find the error harmless and we therefore affirm.

Defendant Rodney James Williams violated Penal Code section 288, subdivision (a),[1] by committing lewd and lascivious acts against two children he babysat: six-year-old Jane Doe 1 and five-year-old Jane Doe 2. Subsequently, he babysat Jane Doe 1, Jane Doe 2, and a third child, 10-year-old Jane Doe 3. When the children were in the living room, he played a pornographic movie on the television while Jane Doe 2 danced partly naked. Jane Doe 3 put a pillow in front of her face because she did not want to watch. Defendant pulled the pillow away from her. Shortly afterward, Jane Doe 1’s mother pulled into the driveway. Defendant stopped the videotape and told the children not to say anything.
In addition to being convicted of violating section 288, subdivision (a) against Jane Doe 1 and Jane Doe 2 and of exhibiting harmful matter to minors with the intent to seduce (§ 288.2, subd. (a)), he was convicted of attempted lewd and lascivious conduct against Jane Doe 3. He was sentenced to an indeterminate term of 15 years to life plus a consecutive five-year determinate term.
Defendant does not challenge his convictions for the crimes he committed against Jane Doe 1 and Jane Doe 2. His primary contention on appeal is that the evidence is insufficient to support the conviction for attempted lewd and lascivious acts with Jane Doe 3. He also asserts that the court failed to exercise its discretion when it ordered that the determinate term run consecutive to the indeterminate term. The People dispute defendant’s contention regarding the attempt conviction, but agree that the court failed to exercise its sentencing discretion and that a new sentencing hearing is required.
We will affirm the conviction for attempted lewd and lascivious conduct and direct the court to hold a new sentencing hearing so that it may exercise its sentencing discretion.

A.N. appeals an order denying his motion for a continuance of the Welfare and Institutions Code[1] section 366.26 hearing concerning his daughter, Teresa N., and the order terminating his parental rights to Teresa. He contends the court abused its discretion by denying his request for a continuance and by not hearing his oral section 388 motion.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2011, nine-month-old Teresa was placed in protective custody when her parents, A.N. and T.F., violated a mutual restraining order that had been put into place after a domestic violence incident in March. The San Diego County Health and Human Services Agency (the Agency) petitioned on Teresa's behalf under section 300, subdivision (a), alleging she was at substantial risk of serious physical harm from domestic violence. The court named A.N. as Teresa's presumed father and ordered Teresa detained.

On April 3, 2012, Andre Shamone Lee pled guilty to one count of domestic violence with corporal injury (Pen. Code, § 273.5, subd. (a))[1] (count 1), and admitted having suffered a prior strike conviction within the meaning of section 667, subdivisions (b) through (i), and section 668. That same day, the trial court sentenced Lee to a stipulated sentence of six years in state prison. The trial court awarded Lee a total of 313 days of custody credits, including 209 days of actual custody credits, and 104 days of conduct credits. The trial court also imposed a restitution fine in the amount of $240, and imposed and stayed a parole revocation restitution fine in the same amount.
On appeal, Lee contends that the trial court violated the ex post facto clauses of the state and federal constitutions in imposing the restitution and parole revocation restitution fines. Lee also claims that he is entitled to additional conduct credits for jail time served after October 1, 2011, pursuant to an amendment to section 4019. We reject Lee's claims and affirm the judgment.

A jury found Billy Charles White guilty of rape of an intoxicated person (Pen. Code,[1] § 261, subd. (a)(3); count 1) and of rape of an unconscious person (id., subd. (a)(4)(A); count 2). The trial court sentenced White to three years in state prison and ordered him to register as a sex offender.
White contends the evidence is insufficient to prove under section 261 that when he engaged in sexual intercourse with the victim, he knew the victim was unable to resist because of intoxication (count 1) or because the victim was unconscious of the nature of the act of intercourse (count 2). White also contends the trial court prejudicially erred by refusing both to instruct the jury on mistake of fact and to grant his new trial motion based on juror misconduct. Finally, White contends the trial court abused its discretion when it denied him probation.
In addition to these contentions, on our own motion we requested supplemental briefing from the parties whether White's convictions on counts 1 and 2 should be consolidated under People v. Craig (1941) 17 Cal.2d 453 (Craig) and its progeny into a single conviction given there was a single act of sexual intercourse.
As we explain, we reject White's contentions on appeal. After considering the supplemental briefing of the parties, we conclude that White was not properly convicted both on counts 1 and 2 and further, that the judgment must be modified to reflect only one conviction for violation of section 261.

In March 2010 Imshay Raymone Segrest pleaded guilty in case No. SCD222967 to one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (undesignated statutory references will be to the Penal Code) and admitted he had two prison prior convictions within the meaning of sections 667.5, subdivision (b) and 668. In July of that year, the court placed Segrest on three years of formal probation and suspended imposition of sentence for that period of time.
In April 2011 the court revoked Segrest's probation based on evidence admitted at the preliminary hearing held in case No. SCD232213 (discussed, post), in which he was charged with two counts of committing a forcible lewd act upon his cousin, D.E., a child under the age of 14 years, in violation of section 288, subdivision (b)(1) (hereafter § 288(b)(1)).

A jury found Jeff Shekell, who operated an automobile repair business in El Cajon, guilty of (1) petty theft of personal property (Pen. Code, § 484) (undesignated statutory references will be to the Penal Code unless otherwise specified) as a lesser included offense of grand theft of personal property (count 2; victim: Terry Guishard); (2) grand theft of personal property (count 4: § 487, subd. (a) (hereafter § 487(a)); victim: Alan Sup); and (3) attempted grand theft of personal property (count 5: §§ 487(a), 664; victim: Tony Gallo). At the sentencing hearing, the court placed Shekell on five years formal probation.
Shekell raises three contentions on appeal. First, he contends the evidence is insufficient to support his theft convictions because the prosecution alleged he committed theft by false pretenses, but there is no evidence he "misrepresented a single thing regarding his repair of the three vehicles involved," and all of the work he did "was done with the full approval of the customers." Second, he claims his convictions under the "broader" theft statutes are barred because the prosecution presented no evidence he defrauded his customers, and, thus, his conduct is covered only by more specific statutes codified in the Business and Professions Code, violations of which are punishable only as misdemeanors. Third, Shekell contends the court violated his federal constitutional right to due process by erroneously admitting inadmissible "bad character" evidence, and his trial counsel's failure to object to that evidence amounted to ineffective assistance of counsel. We affirm the judgment.

D.Z., father of the minor, appeals from a judgment declaring the minor free from the custody and control of his natural father. (Fam. Code, § 7860 et seq.) Father contends (1) the trial court erred in failing to appoint counsel for, and interview, the minor and (2) substantial evidence did not support the trial court’s finding he abandoned the minor within the meaning of Family Code section 7822. We conclude any error in failing to interview the minor or not appointing counsel for the minor was harmless. We reject father’s substantial evidence contention. There was ample evidence supporting the trial court’s finding that father abandoned the minor. Accordingly, we affirm the judgment.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, 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.)
Defendant John Kenneth Craft was friends with Timothy Hilley.[1] He invited Hilley to stay in his home and Hilley stole property from defendant and his friends. Defendant tracked Hilley down and brought him to David Forester’s house. Over the course of several hours, Forester and defendant beat Hilley. Forester hit Hilley repeatedly, causing him to fall to the ground unconscious, and defendant kicked Hilley in the face several times. Hilley regained consciousness and tried to run away. Defendant and Forester caught Hilley, dragged him back to Forester’s home and continued to beat him. Eventually, Hilley was able to escape. As a result of the beating, Hilley suffered a lacerated spleen, internal bleeding, broken ribs, facial fractures, a severe hematoma in the bowel area and mild renal failure.

In separate cases, defendant Ishmael Sarafum Gilmore pleaded no contest to possession of a controlled substance (methamphetamine) and receiving stolen property. The trial court sentenced defendant to an aggregate state prison term of four years eight months, but suspended execution of sentence and placed defendant on formal probation for five years under various terms and conditions, including imposition of various fines and fees. When defendant violated probation, the trial court executed the previously imposed sentence and ordered defendant to pay all outstanding fines and fees, but ordered defendant to serve the four years eight months in county jail and awarded presentence credit.
Defendant now contends (1) two DNA penalty assessments imposed pursuant to Government Code section 76104.7 must be reduced to the amounts authorized by the statute at the time the crimes were committed, and (2) he is entitled to four additional days of presentence conduct credit. The People agree with defendant’s contentions, and so do we.
We will modify the judgment and affirm the judgment as modified.