CA Unpub Decisions

A jury convicted defendant Curtis G. Pulley of receiving stolen property (Pen. Code, § 496, subd. (a)).[1] In a bifurcated proceeding, the jury found that defendant had one prior conviction within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a total state prison term of four years, to be served in the county jail (see § 1170, subd. (h)). The sentence consisted of the high term of three years plus a one-year consecutive term for the prison prior under section 667.5, subdivision (b).
Defendant appeals on the grounds that: (1) the trial court erred in denying his two Marsden[2] requests, and (2) the trial court erred in denying his two Faretta[3] requests.

An amended information, filed October 18, 2011, charged Conception Soria with four counts: (1) first degree burglary (Pen. Code, § 459)[1]; (2) attempted first degree burglary (§§ 664, 459); (3) evading a police officer with willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)); and (4) unlawful driving of a vehicle not his own (Veh. Code, § 10851, subd. (a)).
According to the evidence at trial, Soria drove his uncle, who is younger than Soria, in a maroon Honda to the Kessman residence in the Hollywood Hills. Soria’s uncle went to the front door, while Soria waited in the car, and “asked if there was a Marissa home.” Ms. Kessman responded that no one by that name lived at the house. The uncle returned to the car, and Soria drove to the front of the Benson home. Ms. Kessman saw the uncle leaning against the fence of the Benson residence, called the police and reported the license plate number of the car. The uncle came out of the Benson residence with a television, and Soria helped him put it in the car. The uncle also put a helmet and gloves in the car and gave Soria some bottles. When Mr. Benson returned home that day, he noticed a computer, a motorcycle helmet, a pair of gloves, a clock radio, a television and several bottles of liquor missing. A screen was off one of the windows.

A modification decision.

The juvenile court denied Frank M.’s motion to suppress and found that Frank committed the crime of carrying a concealed dirk or dagger. (Former Pen. Code, § 12020, subd. (a).) The court ordered Frank placed home on probation, with a stated maximum term of confinement not to exceed three years. We affirm the denial of Frank’s motion to suppress; we conditionally reverse the adjudication with directions to the juvenile court on how to proceed upon remand.

Mark Anthony Worthy appeals a judgment following conviction of arson of property of another, and dissuading a witness from reporting a crime, with findings of a prior serious felony strike conviction. (Pen. Code, §§ 451, subd. (d), 136.1, subd. (b)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)[1] We modify the judgment to impose an additional $30 court facilities assessment pursuant to Government Code section 70373, subdivision (a)(1), but otherwise affirm.

Appellant Jonathan Gutierrez appeals from the judgment entered following his conviction of three counts of second degree robbery (Pen. Code,[1] § 211), with true findings on the gang enhancements alleged as to each count (§ 186.22, subd. (b)(1)). On appeal, Gutierrez argues that the evidence was insufficient to support the jury’s findings that each of the robberies was committed for the benefit of, at the direction of, or in association with a gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members. Gutierrez also asserts that the trial court erred in imposing an additional term on a personal use of a firearm enhancement alleged as to one of the robbery counts when the jury specifically found that enhancement allegation to be not true. We remand the matter to the trial court for resentencing, but otherwise affirm.

Appellant William Lundy appeals from a post-judgment order awarding attorney’s fees to respondents SSA Terminals LLC, SSA Terminals (Long Beach) LLC, and SSA Pacific, Inc. (collectively SSA) under Civil Code[1] section 1717. After Lundy was injured while working for SSA as a longshoreman in the Port of Long Beach, he filed a worker’s compensation claim against SSA and a personal injury action against the City of Long Beach (City). Following a global settlement of both cases in which Lundy waived his right to seek reemployment with SSA, Lundy breached the “no reemployment” provision in his settlement agreement with the City by continuing to accept work assignments with SSA entities. In SSA’s ensuing action against Lundy to enforce the “no reemployment” provision, the trial court entered summary judgment for SSA and granted SSA’s motion for attorney’s fees. This Court previously affirmed the judgment for SSA on the ground that the “no reemployment” provision in Lundy’s settlement agreement with the City was enforceable by SSA. We now affirm the award of attorney’s fees to SSA on the ground that SSA was a third party beneficiary of the settlement agreement, including the attorney’s fees provision, and was therefore entitled to recover its attorney’s fees under section 1717 as the prevailing party in an action to enforce the agreement.

In a prior action, two employees represented by successive attorneys sued their corporate employer and two managerial employees — a husband and wife — alleging violations of the Labor Code and other claims. At trial, the plaintiff-employees prevailed on their Labor Code claims against the corporate employer and the husband, who was found to be an alter ego of the corporation. The wife was exonerated on all claims.
The wife then filed the present action against one of the employees, his spouse, and all of his attorneys, alleging claims for malicious prosecution, abuse of process, and defamation, among others. The attorneys, the employee, and his spouse responded with special motions to strike, contending the action was a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16; undesignated section references are to that code). The trial court granted the motions. This appeal followed.
We conclude the trial court properly found that all of the causes of action fall within the scope of the anti‑SLAPP statute and that the wife did not demonstrate a reasonable likelihood of prevailing on her claims. We therefore affirm.

Upon the denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant William Joseph Lewis pleaded no contest to one count of possession of a controlled substance (Health and Saf. Code, § 11350, subd. (a)) and admitted three prior conviction allegations (id. at § 11370, subds. (a), (c)). The trial court entered judgment and, after suspending the imposition of sentence, placed defendant on probation pursuant to Proposition 36.
Defendant contends on appeal that his suppression motion should have been granted because he was unlawfully detained and searched in violation of the Fourth Amendment. We conclude the trial court properly denied the suppression motion. However, the sentence must be modified because the court miscalculated the conduct credits to which defendant was entitled and failed to impose a mandatory fine. As modified, the judgment is affirmed.

This appeal arises from the trial court’s order granting a motion to quash service of process for lack of personal jurisdiction in favor of specially-appearing defendants The Community Hospital Group, Inc., trading as JFK Medical Center (the hospital), Martin Gizzi, M.D., and Subramanian Hariharan, M.D. (collectively referred to herein as respondents). Because we conclude that plaintiff Chetan Thakar failed to meet his burden of proving facts justifying the exercise of jurisdiction, and in any case has forfeited for purposes of appeal his substantive attack on the motion as well as his challenge on timeliness grounds, we affirm the order granting the motion to quash.

Appellant Thomas T. Bachmann (“Bachmann”) appeals from the judgment entered upon an order denying his motion to set aside the default pursuant to Code of Civil Procedure section 473.5. Bachmann asserts that he is entitled to relief from the default because he did not have “actual notice” of the action in time to defend against it before his default was taken by respondent Broadway Federal Bank (“Broadway”). In addition, Bachmann claims that the trial court should have granted his motion to quash for improper service of the summons because: (1) the lower court erred in exercising personal jurisdiction over him; and (2) even if personal jurisdiction is established, Broadway did not provide proper service of the summons and complaint. As we shall explain, Bachmann’s claim with respect to his motion to set aside the default has merit. The only relevant evidence in the record on the issue of “actual notice” shows that Bachmann did not have actual notice of the action until one day before Broadway filed its request for entry of default and that Bachmann timely moved to set it aside. This notwithstanding, the lower court did not err in exercising personal jurisdiction over Bachmann or concluding that Broadway had properly served Bachmann with the summons and complaint, and thus properly denied Bachmann’s motion to quash. Accordingly, we reverse and remand for further proceedings.

Appellant owns parking garages which are utilized by respondent, the owner of properties at a large shopping center. Appellant and respondent are bound by a contract whereby appellant can charge respondent for a portion of real property taxes assessed on the parking garages.
Respondent claims that appellant acted improperly by seeking and obtaining a revised appraisal from the Los Angeles County Assessor’s Office affecting the assessment on the garages. The trial court agreed with respondent and found that appellant improperly charged respondent for real property taxes.
We reverse on this issue. Nothing in the contract prevented appellant from seeking a revised appraisal, and the revised appraisal more closely approximated the parties’ reasonable expectations. In this opinion, we also find that the trial court improperly awarded an additional miscellaneous expense to respondent. Accordingly, we reverse the judgment in part, with directions for the trial court to reconsider its prevailing party determination.

Edgar A. Carrillo appeals from the judgment entered upon his conviction of illegally possessing a firearm in violation of Penal Code section 12021, subdivision (a)(1) for the purpose of benefiting a criminal street gang pursuant to Penal Code section 186.22, subdivision (b)(1).[1] On appeal appellant makes three contentions: (1) substantial evidence does not support the true finding on the gang enhancement, (2) this court should review the Pitchess determinations of the lower court, (3) the trial court erred in its sentencing of appellant under section 667.5, subdivision (b). As we shall explain, appellant’s argument that the substantive evidence does not support the gang enhancement finding is without merit. However, this court agrees that the trial court erred in denying appellant’s Pitchess motion for an in camera review of an officer’s records. Lastly, the trial court should have stricken, rather than stayed, the one-year enhancement for the prior prison term enhancement.

Petra Rocha Cabrera appeals a judgment following conviction of possession of heroin for sale, and transportation of heroin, with a finding that the heroin exceeded one kilogram in weight. (Health & Saf. Code, §§ 11351, 11352, subd. (a), 11370.4, subd. (a)(1).) We modify the judgment to award Cabrera one additional day of conduct credit, but otherwise affirm.