CA Unpub Decisions

Defendant Pierre Michael Levan appeals from his conviction of 48 counts of forcible lewd acts on a child under the age of 14 years (Pen. Code,[1] § 288, subd. (b)(1).) He contends the evidence was insufficient to support his conviction on 46 of those counts. We find no error, and we affirm.

A jury convicted defendant, Corey Johnson, of possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and resisting/obstructing/delaying a police officer (Pen. Code, § 148, subd. (a)(1)). The jury found true allegations that defendant had suffered two strike priors (Pen. Code, § 667, subds. (b)-(i)) and four priors for which he served prison sentences (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for 10 years and appeals, claiming the trial court erred in allowing admission of taped phone conversations he had while in jail and he was incompetently represented by trial counsel. We reject his contentions and affirm.

According to Marcelline M. Gardner’s complaint, in 2005, during the go-go era of the Southern California housing market, she used 100 percent, adjustable-rate, interest-only financing to buy a house in Hesperia. In hindsight, this was not a good idea. In 2009, the house went into foreclosure (although it appears that, for the moment, Gardner is still living there).
Gardner then filed this action against the lender, the lender’s successor in interest, and other entities involved in the loan. The trial court sustained demurrers to the original complaint and the first amended complaint; finally, it sustained demurrers to the second amended complaint without leave to amend.

Plaintiff Danavon Horn[1] appeals from the judgment dismissing his action to remove his mother, defendant Melba Horn, as cotrustee of a family trust. Danavon contends the trial court erred in dismissing the action on the basis it lacked subject matter jurisdiction. Melba and objectors Gary Horn and Lonna Horn contend the trial court properly dismissed the action under forum non conveniens principles. Melba also appeals, contending the trial court erred in finding it had personal jurisdiction over her. Although we disagree with the basis for the trial court’s ruling, we nonetheless affirm the judgment on the ground of lack of personal jurisdiction.

Following a jury trial, defendant John Orlando Mitchell was convicted of one count of possession for sale of a controlled substance in violation of Health and Safety Code section 11351, and one count of transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). Defendant was sentenced to state prison for a total term of 15 years. He appeals, challenging the trial court’s rulings regarding the admission of certain evidence and the jury instructions. Finding no errors, we affirm.

Defendant Brian Steven Dillon appeals from his conviction of burglary of an occupied residence (Pen. Code,[1] §§ 459, 667.5, subd. (c)) and assault by means likely to cause great bodily injury (§ 245, subd. (a)). Defendant contends the trial court erred in denying his motion for new trial after a juror testified she considered extrinsic evidence regarding the reliability of tracking in reaching a guilty verdict. Defendant further contends the trial court erred in failing to conduct a hearing regarding juror misconduct or, in the alternative, to release juror information to the defense. We find no error, and we affirm.

Plaintiff County of San Bernardino (County) appeals from (1) judgment of dismissal following the trial court’s order sustaining the demurrer of defendant San Bernardino County Public Attorneys Association (Association) to the County’s complaint, and (2) the trial court’s orders granting the Association’s Strategic Lawsuit Against Public Participation (anti-SLAPP) motion under Code of Civil Procedure section 425.16 and awarding attorney fees to the Association. The County contends the superior court, not the Public Employees Relations Board (PERB), has jurisdiction over a dispute concerning representation in discipline proceedings of Association members who are deputy public defenders and deputy district attorneys, because: “(1) PERB has no authority to regulate the practice of law; (2) PERB has no authority to define the discretionary authority of the [County] District Attorney or the independence of the [County] Public Defender in the criminal justice system; and (3) the violation of attorney ethical duties and the Association removing prosecutors from criminal cases is not activity ‘arguably protected or prohibited’ by the MMBA[[2]] and is of ‘marginal concern’ to PERB.” The County further contends the trial court erred in granting the Association’s anti-SLAPP motion because (1) the County’s lawsuit was exempt from the anti-SLAPP statute, (2) the Association failed to establish that its activity was protected under that statute, and (3) the County met its burden of showing a likelihood of prevailing on the merits. Finally, the County argues the trial court erred in awarding attorney fees because the Association did not support its request with adequate documentation in the form of copies of actual time records. The Association appeals from the trial court’s order reducing its attorney fee award.

The appellant in this case was convicted of committing forcible sex acts on his girlfriend. We agree with appellant the prosecutor made an argument to the jury which was improper because it shifted the burden of proof to appellant. However, in light of substantial evidence the sex acts were not consensual, including physical evidence observed shortly after the acts occurred and the victim's initial and credible account of what happened to her, as well as the trial court's accurate instructions on the presumption of innocence and reasonable doubt, the prosecutor's argument was not prejudicial. Thus we reject appellant's contention the prosecutor's argument entitles him to a new trial, either on the grounds the trial court did not sua sponte instruct the jury with respect to the erroneous portions of the prosecutor's argument or because appellant's counsel failed to object to the argument.

A jury convicted Jorge S. Moreno of assault by means of force likely to produce great bodily injury. The jury also found not true the allegation that Moreno personally inflicted great bodily injury on the victim. (Pen. Code,[1] § 245, subd. (a)(1), 1192.7, subd. (c)(8).) Moreno admitted he had suffered three prior serious/violent felony convictions within the meaning of section 667, subdivisions (b) through (i); two prison priors (§ 667.5, subd. (b)), and two serious felony prior convictions within the meaning of section 667, subdivision (a)(1). The two serious felony priors were subsequently dismissed in light of the jury's rejection of the great bodily injury allegation. Moreno was sentenced to an indeterminate term of 25 years to life in prison, plus two consecutive determinate years for the two prison priors.
Moreno appeals contending the evidence does not support aggravated assault because the jury rejected the great bodily injury allegation and that there was prejudicial juror misconduct. We will reject both contentions and affirm the judgment.

A jury convicted Charles Neal of second degree murder (Pen. Code, § 187,
subd. (a); count 1),[1] and shooting at an inhabited structure (§ 246; count 2). The jury determined Neal committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and a principal used and discharged a firearm in the crimes, causing the death of another person (§ 12022.53, subds. (d), (e)). The jury found Neal not guilty of first degree murder as charged in count 1. The court sentenced Neal to state prison for a total of 40 years to life, consisting of 15 years to life for count 1, plus a consecutive 25-year term for the firearm enhancement on that count. The court stayed sentencing on count 2. (§ 654.)
The prosecution's theory was that Neal's codefendant, Maurice Tucker, was the shooter and Neal had derivative liability for both crimes as a coconspirator.[2] On appeal, Neal claims the trial court committed prejudicial error by instructing the jury on a legally invalid theory of implied malice second degree murder. Under California Supreme Court authority, we agree. (People v. Swain (1996) 12 Cal.4th 593, 601 (Swain); People v. Cortez (1998) 18 Cal.4th 1223, 1237-1238 (Cortez).) We reverse the judgment.

Melvin Gallegos appeals from a judgment convicting him of premeditated attempted murder and other offenses. He asserts the trial court erred by: (1) denying his motion to exclude statements he made to the authorities without being provided Miranda[1] warnings; (2) adding language to the standard instruction on premeditation and deliberation stating that it was not necessary to prove the defendant "maturely and meaningfully reflected"; and (3) providing standard instructions on the use of evidence of uncharged domestic violence or elder abuse to infer his propensity to commit the charged offenses. We find no error and affirm.

A jury convicted Earl Eugene Rose of first degree felony murder, attempted murder (two counts), robbery, attempted robbery, and possession of a firearm by a felon. The jury found that Rose committed the murder during the commission of a robbery and that he intentionally discharged a firearm, resulting in death and great bodily injury. The jury also found that Rose had four prior strike convictions, one prior prison term conviction, and five prior serious felony convictions.[1] The court sentenced Rose to life without the possibility of parole, consecutive to 125 years to life, consecutive to a determinate term of 26 years.
Rose contends (1) the court denied him his constitutional rights to due process and jury trial by instructing the jury with an erroneous special instruction regarding an uncharged robbery offense that allowed the jury to find the key fact of identity on a reduced burden of proof; (2) the court prejudicially erred by instructing the jury with CALCRIM No. 376 (regarding possession of recently stolen property as evidence of a crime) because in conjunction with the court's special instruction regarding the uncharged offense, it allowed the prosecution to establish identity under a reduced burden of proof; (3) his trial counsel was ineffective in failing to object when the prosecutor improperly discussed the uncharged crime evidence as proof of identity, intent, and criminal propensity during closing argument; (4) the cumulative effect of the three preceding assignments of error denied him a fair trial; (5) there was insufficient evidence of intent to kill to support the attempted murder conviction as to Anna Rodriguez; (6) the mode of culpability constructed by Penal Code[2] sections 187, 189, and 190.2, subdivision (a)(17)(A), creating a sentence of life without parole for a killing during a robbery, whether premeditated or not, is unconstitutionally vague as applied to this case; and
(7) his sentence on two prior serious felony enhancements must be reversed.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly). 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. (Kelly, supra, 40 Cal.4th at p. 124.)
Defendant was granted five years’ probation in Placer County Superior Court No. 62-78565 on September 29, 2008, after pleading no contest to violating Vehicle Code section 23152, subdivision (b) (driving with a blood-alcohol level of .08 percent or greater), and admitting three prior convictions for driving under the influence (DUI) (id., § 23550). The terms and conditions of probation included successfully completing an 18-month DUI program and not driving unless licensed and insured. Defendant was thereafter found in violation of probation on three occasions described post.

Convicted by plea of six felonies relating to construction fraud with excessive loss and white collar crime findings, defendant Bruce Wayne White was sentenced to state prison for an aggregate term of six years, execution suspended, and was placed on probation for 10 years. The court ordered defendant to serve a year in jail, to pay, among other things, victim restitution in the amount of $210,000 at the rate of no less than $1,750 per month commencing 30 days upon release from jail, and to submit financial declarations to probation every two months. The court revoked defendant’s state contracting license.
A petition for revocation of probation was filed June 14, 2011, alleging that defendant failed to obey all laws and failed to pay restitution.
After a contested hearing, the court sustained both allegations finding that defendant drove under the influence of alcohol or drugs and willfully failed to make restitution payments.
The court terminated probation and executed the six-year sentence.
Defendant appeals. He contends insufficient evidence supports a finding that he had the ability and willfully failed to pay restitution. He does not challenge the evidence supporting the DUI finding. He claims remand is required because the record does not reflect the court would have terminated probation solely on the DUI finding. Concluding that sufficient evidence supports the trial court’s finding that defendant willfully failed to pay restitution, we will affirm.