CA Unpub Decisions

A jury convicted defendant, Derrek Holmes, of two counts of engaging in sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a)). He was sentenced to prison for 25 years to life and appeals, claiming evidence was improperly admitted and the jury was improperly instructed. We reject his contentions and affirm.

In November 2008, a jury found Octavus Williams guilty of second degree murder (Pen. Code, § 187, subd. (a)) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). In February 2009, the court sentenced Williams to an indeterminate term of 15 years to life in prison. In September 2010, this court affirmed the judgment. In December, the California Supreme Court denied Williams's petition for review.
In October 2012, Williams filed a petition for writ of error coram nobis in the trial court. In the petition, he claimed that on July 24, 2012, he received July 2009 transcripts from his then appointed appellate attorney and thereby discovered that the attorney was ineffective. Williams claimed the attorney "was put on notice [by the prosecutor] that the key prosecution witness . . . had engaged in doctor shopping while the instant case was still pending," and the prosecutor believed "that such conduct would be or could be construed as a moral turpitude crime." According to Williams, the attorney did nothing with this information. The trial court denied the petition for writ of error coram nobis, correctly noting, inter alia, "That a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is an inappropriate ground for relief on coram nobis has long been the rule." (People v. Kim (2009) 45 Cal.4th 1078, 1104.) Williams appeals.

Three Rivers Provider Network, Inc. (TRPN) appeals from the trial court's order granting a special motion to strike its lawsuit against Ronson Shamoun and the Law Office of Ronson J. Shamoun, a Professional Law Corporation (collectively, Shamoun) as a strategic lawsuit against public participation under Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute).[1] As we will explain, we conclude that Shamoun did not meet his burden to establish that the claims against him arose from activity protected by the anti-SLAPP statute. Accordingly, we reverse the order granting the special motion to strike.

Defendant Robert G. Pulley appeals from a judgment of conviction entered after a jury convicted him of second degree murder, battery, and making a criminal threat. The murder victim was Pulley's neighbor. The victim of the battery and criminal threat was Pulley's son.
On appeal, Pulley contends that there is insufficient evidence to support the murder conviction. He first argues that his conviction for second degree murder based on the shooting of his neighbor must be reversed because "the only reasonable conclusion from the evidence was that [he] acted with the legal justification of defending against harm to a person within one's home or . . . his property." He argues in the alternative that even if this court does not agree that the evidence demonstrated that his act of shooting his neighbor was justified, his conviction for second degree murder should be reduced to voluntary manslaughter because the evidence supports a finding that he acted under the heat of passion, and does not support a finding that he acted with implied or express malice.
Pulley also contends that the trial court should have granted his motion to sever for trial a fourth count charging him with making a criminal threat against his wife—a count on which he was acquitted—from the other three counts in the case.
We reject all of Pulley's contentions on appeal, and affirm the judgment.

Appellant Glenn Torbett appeals the judgment entered after the trial court granted summary judgment in favor of respondents Walter E. Pinkerton, Jr., Pinkerton Doppelt & Associates, LLP, and Carl Anderson, as Trustee of the Walter E. Pinkerton, Jr. Trust (collectively Pinkerton). The trial court found the one-year statute of limitations set forth in Code of Civil Procedure[1] section 340.6, subdivision (a) barred Torbett's complaint alleging a single cause of action for professional negligence against Pinkerton.
Torbett contends the trial court erred in granting summary judgment because (1) a triable issue of material fact exists regarding when Torbett knew, or should have known, of the facts giving rise to his professional negligence cause of action against Pinkerton, and (2) the one-year limitations period was tolled until Torbett suffered actual injury, which Torbett claims occurred within one year of the filing of his complaint.
As we explain, we disagree with both contentions and thus affirm the judgment for Pinkerton.

Appointed counsel for defendant Eduardo Manuel Jorrin asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we shall affirm the judgment.

This appeal arises from two juvenile wardship petitions against appellant Michael P. (Welf. & Inst. Code, § 602.)[1] In a combined jurisdictional proceeding, the juvenile court sustained a felony vandalism charge (Pen. Code, § 594, subd. (a)) and terminated deferred entry of judgment (hereafter DEJ) (Welf. & Inst. Code, § 790 et seq.) as to the first petition; and sustained two felony counts of firearm possession (Pen. Code, § 29610) and two misdemeanor counts of ammunition possession (Pen. Code, § 29650) as to the second petition.
On appeal, Michael P. contends the juvenile court (1) imposed an overbroad probation condition prohibiting his possession of marker pens, (2) denied him equal protection by refusing to end DEJ until full restitution had been paid, (3) failed to determine his ability to pay restitution, (4) failed to exercise its discretion over whether the vandalism offense constituted a felony or a misdemeanor, and (5) failed to hold a hearing regarding DEJ as to the second petition. We find merit in Michael’s last two points (the People concede the last point), and shall reverse and remand on those two bases. In all other respects, we shall affirm the adjudication.

A jury found defendant Ismael Rosales Aniceto guilty of attempted premeditated murder ( ADDIN BA xc <@ost> xl 9 s DSIEYH000017 xpl 1 l "Pen. Code" Pen. Code,[1] ADDIN BA xc <@osdv> xl 23 s DSIEYH000020 l "§§ 664 & 187, subd. (a)" §§ 664, 187, subd. (a); count 1); permitting another to shoot from a vehicle (former ADDIN BA xc <@osdv> xl 18 s DSIEYH000021 xpl 1 l "§ 12034, subd. (b)" § 12034, subd. (b); count 2); street terrorism ( ADDIN BA xc <@osdv> xl 19 s DSIEYH000022 xpl 1 l "§ 186.22, subd. (a)" § 186.22, subd. (a); count 3); and assault with a firearm ( ADDIN BA xc <@osdv> xl 19 s DSIEYH000023 xpl 1 l "§ 245, subd. (a)(2)" § 245, subd. (a)(2); count 4). The jury also found true allegations defendant committed counts 1, 2, and 4 for the benefit of a criminal street gang ( ADDIN BA xc <@osdv> xl 22 s DSIEYH000024 xpl 1 l "§ 186.22, subd. (b)(1)" § 186.22, subd. (b)(1)), a principal intentionally and personally discharged a firearm in the commission of count 1 ( ADDIN BA xc <@osdv> xl 28 s DSIEYH000025 xpl 1 l "§ 12022.53, subds. (c) & (e)" § 12022.53, subds. (c) & (e)), and defendant personally used a firearm in the commission of count 4 ( ADDIN BA xc <@osdv> xl 20 s DSIEYH000026 xpl 1 l "§ 12022.5, subd. (a)" § 12022.5, subd. (a)).
The trial court sentenced defendant to an aggregate term of 44 years to life in state prison, consisting of: 7 years to life for the attempted murder (count 1), plus an additional 20 years under ADDIN BA xc <@osdv> xl 33 s DSIEYH000027 l "section 12022.53, subdivision (c)" section 12022.53, subdivision (c); and a consecutive 3 years (the middle term) for the assault (count 4), plus an additional 4 years under ADDIN BA xc <@osdv> xl 32 s DSIEYH000028 l "section 12022.5, subdivision (a)" section 12022.5, subdivision (a), and an additional 10 years under ADDIN BA xc <@osdv> xl 37 s DSIEYH000029 l "section 186.22, subdivision (b)(1)(C)" section 186.22, subdivision (b)(1)(C). The trial court stayed defendant’s sentence on counts 2 and 3 pursuant to ADDIN BA xc <@osdv> xl 11 s DSIEYH000030 l "section 654" section 654. It also declined to impose the enhancement for participation in a criminal street gang appended to count 1 pursuant to ADDIN BA xc <@osdv> xl 36 s DSIEYH000031 l "section 12022.53, subdivision (e)(2)" section 12022.53, subdivision (e)(2).

In three separate instances, defendant Roy Lee Houston committed gang related shootings. In one of those instances, he killed Donald McCall. Convicted by jury of murder with a special circumstance, as well as various assaultive crimes, with enhancements, defendant appeals. He contends: (1) the trial court erred by refusing to instruct the jury on accomplice testimony and (2) there was insufficient evidence to sustain the gang enhancement as to two of the crimes. We conclude: (1) any error in failing to instruct the jury on accomplice testimony was harmless because there was evidence corroborating that testimony and (2) the expert testimony was sufficient to sustain the gang enhancement.

Manuel Castaneda (husband) appeals from a postjudgment order directing him to produce documents responsive to a notice to produce documents at trial and to pay $3,155 in monetary sanctions in the form of attorney fees and costs to Rebecca Handal (wife) under "Family Code section 271" Family Code section 271.[1]

After officers responded to a 911 call from Denise N., they found both Denise and her boyfriend, defendant Thomas Keller Bennett, sporting injuries and smelling strongly of alcohol. An information charged defendant with corporal injury on a cohabitant and assault by means of force likely to produce great bodily injury. (Pen. Code, §§ 273.5, subd. (a)—count one, 245, subd. (a)(1)—count two.)[1] A jury found defendant guilty of both counts and the court sentenced him to seven years in state prison. Defendant appeals, arguing the trial court erred in admitting evidence of an uncharged domestic violence incident and sentencing error. We shall affirm the judgment.

The People filed a petition (Welf. & Inst. Code, § 602) alleging that 14-year-old Elijah A. had committed the offense of misdemeanor battery on a school employee. (Pen. Code, § 243.6.) At the adjudication, the victim, Sevan Sarkisyan, testified that he worked as a school district security officer assigned to Pasadena High School. During a school day, Sarkisyan was escorting Elijah to an assistant principal’s office when Elijah grabbed Sarkisyan’s forearm. The assistant principal also testified that Elijah grabbed Sarkisyan’s arm. Elijah held onto Sarkisyan’s arm for approximately 10 seconds. The juvenile court found that Elijah committed the alleged offense. The court ordered Elijah placed home on probation.

Appellants Jesus G., Jr. (Jesus) and Enrique G. (Enrique) contend that there was no substantial evidence supporting the juvenile court’s jurisdictional findings that they were children who fell within the description of Welfare and Institutions Code section 300, subdivision (b).[1] We agree.
1. The G. Family
Jesus and Enrique were born in May 1997 and March 2001, respectively. They are the sons of Jesus G., Sr. (father) and Marisol G. (mother), who married in approximately 1994. Mother and father also have a daughter, Maria, who was born in July 1995.
2. Father’s Previous Sexual and Physical Abuse of Maria
On August 9, 2010, in an earlier case, the juvenile court sustained the dependency petition of respondent Los Angeles County Department of Children and Family Services (the Department) with respect to Maria, Jesus and Enrique. The petition alleged that in 2005, when Maria was nine years old, father sexually abused her. Father allegedly fondled Maria’s vagina after making her sit on his lap and removing her pants. He also allegedly removed the belt of his pants and exposed his penis. The petition further alleged that father physically abused Maria by grabbing, choking and pushing her. For purposes of this appeal, Jesus and Enrique do not dispute that the allegations in the previous petition were true.
On September 12, 2011, the juvenile court terminated its jurisdiction over Jesus and Enrique. In so doing, the court issued a “family law order” granting mother sole custody over the two boys.[2] Father was granted rights to monitored visitation. Mother, however, was precluded from serving as the monitor. Nothing in the record indicates that the juvenile court terminated its jurisdiction over Maria.
3. Father Violates the Family Law Order
On February 21, 2012, the Department received a referral from an anonymous source claiming that mother had allowed father to visit her home in violation of the family law order. A Department social worker made two unannounced visits to mother’s home but did not find father there. Mother, Jesus and Enrique denied father was living there or had been there. The social worker, however, found evidence of father’s presence, including adult male clothing in mother’s bedroom. Further, Maria claimed that father had been living in the home since December 2011.
On February 29, 2012, Maria secretly recorded a conversation she had with mother and her two brothers. The recording indicated that father had been in the home in violation of the family law order, and that mother, Jesus and Enrique had lied to the Department social worker regarding the matter. Maria presented this recording to the Department on March 9, 2012.

Defendant Jeffrey Stevenson appeals from the judgment entered following his conviction by jury of selling, furnishing, or giving away cocaine.[1] (Health & Saf. Code, § 11352, subd. (a).) He contends the evidence is insufficient to sustain the conviction and he is entitled to additional presentence conduct credits. We find both contentions to be without merit and affirm.