CA Unpub Decisions

Arthur Sanchez appeals from a judgment convicting him of battery by a prisoner on a nonprisoner. He raises numerous contentions to support his claim that the judgment must be reversed. He contends the jury failed to set aside its prior deliberations when an alternate juror was substituted into the jury. He also asserts the trial court erred by denying his request that the case be dismissed due to misconduct by a bailiff; permitting up to seven security officers in the courtroom; excluding evidence that he was nearing his parole date at the time of the charged battery; and admitting evidence that correctional officers found a cell phone in his cell after the battery incident. He further argues that during closing argument the prosecutor argued facts that were not in evidence, and that the cumulative effect of error denied him a fair trial. We find no error, except for the exclusion of the evidence concerning the nearness of his parole date. We conclude the latter error was not prejudicial.
Additionally, as requested by defendant, we have independently reviewed the officer personnel records that were reviewed by the trial court during an in camera Pitchess[1] hearing. We find no abuse of discretion. Finally, the Attorney General concedes, and we agree, that at sentencing the court erred in imposing a five-year prior serious felony enhancement.
Accordingly, we affirm the judgment as to the conviction, reverse the judgment as to the sentence, and remand the case for resentencing.

Rens Masonry, Inc. sued Luca Properties, Inc. (Appellant) for breach of contract based on Appellant's failure to pay money owed to Rens Masonry for its construction of foundation walls and a fireplace. In its answer, Appellant raised an affirmative defense of offset, alleging that it had incurred damages from Rens Masonry's faulty construction of the fireplace. Appellant also filed a cross-complaint seeking recovery for damages based on the same allegations that the fireplace construction was defective.
After a jury verdict in favor of Rens Masonry, the trial court ordered Appellant to pay Rens Masonry's attorney fees. The court declined Appellant's request that the fees be apportioned between the foundation wall issue (which arose from a written contract containing an attorney fees provision), and the fireplace issue (which arose from an oral contract without an attorney fees provision). Appellant challenges this ruling on appeal.
As we shall explain, to resolve Rens Masonry's claim based on the written contract, it was necessary to litigate Appellant's defense derived from the oral contract. Accordingly, the trial court's award of fees to Rens Masonry properly included the fees incurred to defeat Appellant's defense arising from the oral contract. We affirm the judgment.

Defendant Joseph Jaquez was found possessing 18 grams of methamphetamine, five oxycodone pills, and a loaded 12-gauge shotgun.[1] Defendant pled no contest to possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). The trial court suspended imposition of sentence and placed defendant on five years' formal probation subject to various conditions including a 365-day term in county jail.
Defendant appeals. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Defendant John Patrick Williamson was charged by felony complaint with one count of residential burglary (Pen. Code, § 459; unspecified section references that follow are to this code). It was further alleged that he had a prior first degree burglary conviction which was a strike (§§ 667, subds. (b)-(i), 1170, subd. (d)), a serious felony (§ 667, subd. (a)), and an offense for which he had served a prior prison term (§ 667.5, subd. (b)).
On November 12, 2010, prior to the preliminary hearing, defendant entered into a plea bargain whereby he pleaded no contest to the residential burglary charge in exchange for a state prison sentence of two years (low term) and the dismissal of the prior conviction allegations. The prosecutor stated the prior strike was being dismissed â€

Plaintiff Jeffrey Epperson was terminated from his position as a correctional sergeant employed by the Department of Corrections and Rehabilitation (the department) at High Desert State Prison in Susanville, California, as a result of an incident during transportation of an inmate at the prison's administrative segregation unit. The termination was upheld by the State Personnel Board (the board).
Plaintiff appeals from the judgment denying his petition for a writ of mandate to overturn the board's decision. He contends the trial court committed prejudicial error when it found his testimony was not credible, he knowingly failed to include the use of force in his written reports in an effort to cover up another officer's improper use of force, and his dismissal was appropriate. Since the board's decision was supported by substantial evidence, we affirm.

Mother appeals from orders of the juvenile court terminating parental rights in her child, C.P., and denying her request for a contested Welfare and Institutions Code section 366.26 hearing.[1] Mother asserts that the court denied her due process when it terminated her parental rights without a contested hearing, and it erred in terminating parental rights before an adoption home study was completed. We disagree and therefore affirm.

Defendant Dale Heller appeals an order denying his motion to strike causes of action in a civil case filed against him by plaintiffs Elaine Keith and Randall Shepard. (Code Civ. Proc., § 425.16, strategic lawsuit against public participation (SLAPP).)[1] Keith and Shepard alleged several causes of action, including defamation and intentional infliction of emotional distress, relating to Heller's act of distributing packets of information to his neighbors about an injunction Keith sought against Heller.
We conclude, among other things, that the trial court erred because Heller met his burden of establishing that his actions were protected conduct that fell within the first prong of his anti-SLAPP motion. The court should have held a hearing on the second stage of the anti-SLAPP motion to determine whether Keith and Shepard had met their burden of showing a probability of prevailing on the merits. We reverse and remand.

Antonio Gonzales appeals the judgment entered after a jury convicted him of two counts of indecent exposure (Pen. Code, § 314, subd. 1)[1] and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Appellant stipulated that he suffered a prior section 314, subdivision (1) conviction. The court sentenced him to 4 years 4 months in state prison (a 3-year base term for indecent exposure; and one 8-month term for each of his other offenses (indecent exposure and possession of a controlled sentence).
On February 10, 2011, appellant entered a clothing store, stood near a rack of baby clothes, exposed his genitals and masturbated for several minutes. He left the clothing store, where he sat at a table with his coffee and a magazine. A few minutes after he sat down, Starbucks employees noticed he was masturbating. Los Angeles County Deputy Sheriffs arrested him at Starbucks. During a search at the station, deputies found a paper bindle and a plastic baggie in appellant's sock. The bindle and baggie held a combined total of.43 grams of methamphetamine.

A jury convicted appellant John Thomas Jordan III of the voluntary manslaughter of Steve Moore and found true the allegation that he had personally used a deadly and dangerous weapon. Appellant contends that we must reverse his conviction because the trial court failed to instruct on the lesser included offense of involuntary manslaughter. We affirm.

Bradley Zook appeals the judgment following his convictions for arson of an inhabited structure (Pen. Code, § 451, subd. (b)),[1] first degree residential burglary (§ 459), and conspiracy to commit grand theft (§ 182, subd. (a)(1)). The jury found to be true an allegation that he took, damaged or destroyed property valued in excess of $200,000. (§ 12022.6, subd. (a)(2).) The trial court found to be true allegations that he had two prior serious or violent felony convictions for purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and one prior conviction for purposes of section 667.5, subdivision (b). Zook was sentenced to a prison term of 72 years to life. The sentence consisted of 25 years to life for the arson plus 10 years for the section 667, subdivision (a) enhancement and two years for the section 12022.6, subdivision (a)(2) enhancement, and 25 years to life for the burglary plus 10 years for the section 667, subdivision (a) enhancement. All terms were ordered to run consecutively. The section 12022.6, subdivision (a)(2) allegation was dismissed as to the burglary, and the section 667.5 allegation was stricken. The sentence for taking, damaging or destroying property was stayed pursuant to section 654.

Defendant Jefferson Hull appeals from a judgment of conviction after a jury trial. The jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] in count 1. Defendant was found not guilty of battery with serious bodily injury (§ 243, subd. (d)) in count 2, but he was convicted of the lesser included offenses of misdemeanor simple assault and battery (§§ 240, 242).[2] The jury found not true the allegation in count 1 that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).[3]
Defendant was sentenced to state prison for the upper term of four years on count 1. The court granted the People's motion to dismiss count 2 and the prior conviction and prior prison term allegations.
On appeal, defendant contends that the trial court erred when it failed to instruct on accomplice testimony. We affirm.

Ponani Sukumar appeals an order granting special motions to strike his complaint for malicious prosecution and an order awarding attorney fees and costs to the defendants prevailing on the motions. His complaint is yet another chapter in a long‑running saga of litigation between Ponani Sukumar and his former wife, Saraswati Sukumar.[1] Ponani's malicious prosecution complaint arises from Sara's prior malicious prosecution action against him, which in turn arose from Ponani's cross‑complaint for indemnity filed in an action for breach of contract by Shih-Hua Alan Lee against Ponani and Sara.
Ponani contends the evidence in the record is sufficient to support a determination that Sara pursued her malicious prosecution action against him without probable cause and with malice. He also contends the denial of his request for leave to conduct discovery on the issue of malice was error. We conclude that the evidence in the record compels the conclusion that Sara had probable cause to sue Ponani for malicious prosecution and that he therefore cannot show a probability of prevailing on his complaint against her. We therefore will affirm the orders granting the special motions to strike and awarding attorney fees and costs.

Plaintiff and appellant Lisa Fisher, the former attorney of decedent Rami Rodriguez, appeals from an order dismissing her complaint for defamation against defendants and respondents Steven H. Haney and the law firm of Haney, Buchanan & Patterson (collectively the â€

Defendant Christopher Lee Kennedy appeals from a judgment of conviction entered after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegations that the murder was committed by means of lying in wait, and during the course of a robbery and kidnapping (id., § 190.2, subds. (a)(15), (17)). Defendant was also found guilty of conspiracy to commit a crime (id., § 182, subd. (a)(1)), with the jury finding one or more of the alleged overt acts to be true. In addition, the jury found him guilty of robbery (id., § 211), kidnapping to commit a crime (id., § 209, subd. (b)(1)), and arson causing great bodily injury (id., § 451, subd. (a)). Defendant admitted the truth of the two prior strike convictions (id., §§ 667, subds. (b)-(i), 1170.12). The jury deadlocked as to penalty, and the People ultimately elected not to retry the penalty phase of the trial.
The trial court sentenced defendant to life without the possibility of parole for the murder and imposed a concurrent indeterminate term of 25 years to life in prison for the conspiracy. It imposed a concurrent indeterminate term of 15 years to life in prison for the kidnapping and a concurrent term of nine years for the arson causing great bodily injury, and it stayed a determinate term of three years for the robbery.[1]
On appeal, defendant contends the trial court erred in admitting the statements of Ronald Kupsch[2] and admitting evidence of racist gangs. We find no error and affirm.