CA Unpub Decisions

A jury convicted defendant Gabriel Anthony Cardwell of commercial burglary by use of an acetylene torch, grand theft, and threat of force on a peace officer. (Pen. Code,[1] §§ 464, 487, subd. (a) & 69.) Cardwell admitted a three strikes prior within the meaning of section 667, subdivisions (c) and (e)(1) and a prison prior within the meaning of section 667.5, subdivision (b). Initially, the trial court sentenced Cardwell to a total term of 16 years four months and awarded him a total of 1143 days of actual and section 4019 credits.
On Cardwell's first appeal, we reversed his burglary conviction and remanded for further proceedings. On remand, the district attorney elected to dismiss the burglary charge and the trial court sentenced Cardwell to a term of eight years four months on the grand theft conviction. The trial court also gave Cardwell an additional six days of credit under section 4019.
Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.
We granted Cardwell permission to file a brief on his own behalf, and he did so. In his brief, Cardwell argues the trial court erred when, without consulting counsel, the trial court responded to a jury question. The record shows that during trial, the jury asked the trial court the following question: "Does aiding and abetting apply to each charge individually or all three as a whole[?]" The trial court responded: "Each charge is to be decided separately, thus each is independent of the other."
Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues. The record shows the trial court's response to the jury's question was accurate and thus any failure to consult counsel did not cause any prejudice.
We find that Cardwell was adequately represented both at trial and on appeal.

Defendant Bekins A-1 Movers, Inc. (Bekins) appeals a judgment in the action filed against it by plaintiff DeposiTech, Inc. (DeposiTech) for breach of contract, negligence, and fraud arising out of damage to DeposiTech's property that occurred while Bekins moved it from one to another storage facility. On appeal, Bekins contends: (1) the trial court erred by allowing DeposiTech to present evidence, and instructing the jury, on loss of a business opportunity as compensatory damages for Bekins's fraud; (2) the evidence is insufficient to support the jury's award of $550,000 in damages for DeposiTech's lost business opportunity; and (3) because the jury's compensatory damages award must be reduced, its punitive damages award must likewise be reduced or at least retried.
DeposiTech cross-appeals, challenging the trial court's order denying its motion for an award of attorney fees. It contends that, as the prevailing party, it is entitled to Civil Code[1] section 1717 attorney fees pursuant to an attorney fees provision in its storage contract with Bekins.

A jury convicted Juan Morones of conspiracy to commit murder (Pen. Code, § 182/187, subd. (a))[1] and found true the allegation the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). However, the jury acquitted Morones of the remaining counts charged in the information, including a count charging him with solicitation of murder (§ 653f, subd. (b)). After the court, in a bifurcated proceeding, found true the allegations that he had suffered numerous prior strike convictions (§ 667, subds. (b)-(i)), it sentenced Morones to an indeterminate term of 85 years to life plus a determinate term of 10 years.
On appeal, Morones contends the evidence is insufficient to support the conspiracy conviction because there was insufficient evidence he harbored the requisite intent to kill the victim. He also contends the conspiracy conviction must be reversed because his acquittal of the count charging him with solicitation of murder, one of the overt acts charged in the conspiracy count, necessarily represents a not true finding on the conspiracy count. Morones also asks this court to review de novo certain so-called Pitchess[2] materials and to determine whether the trial court's ruling on his Pitchess motion was an abuse of discretion. Morones also contends the court erred when it imposed a consecutive 10-year determinate term for the gang allegation as part of his sentence. The People concede this was error and that term must be stricken.

Plaintiff L. Donald Guess (Guess) incurred substantial attorney fees to two law firms defending him in a federal court action (the federal civil action). In the federal civil action, the government sought injunctive relief against Guess and against a family of entities, including defendant The Significance Foundation (Foundation), in which Guess had served in numerous capacities, including an as officer and director of Foundation. After the federal civil action was resolved in favor of the defendants, Guess sought indemnification from Foundation for the attorney fees he incurred in defending the federal civil action. When Foundation declined to indemnify Guess, he filed the present action against Foundation. The dispute was tried to the court, which ruled in favor of Guess's claims for indemnity.
On appeal, Foundation asserts the trial court's judgment must be reversed for three reasons. First, Foundation contends that as a matter of law the legal expenses incurred by Guess in defending the federal civil action were not incurred "by reason of [Guess] being or having been a Director [or] officer" of Foundation, and therefore his legal expenses fall outside the scope of the indemnity provisions of Foundation's bylaws. Second, Foundation contends that because Guess paid a substantial portion of the legal fees by obtaining loans from third parties, and there was no evidence at trial that Guess remained liable to repay those loans, he did not suffer any "expenses or liabilities" for which Foundation owed indemnification. Finally, Foundation argues the trial court improperly admitted into evidence the legal billings of Guess's attorneys.

Defendant Troy Jason Hollowell appeals from a judgment after he pled no contest to possession of a completed check with the intent to defraud (Pen. Code, § 475, subd. (c))[1] and identity theft with a prior identity theft conviction (§ 530.5, subd. (c)(2)), and admitted one strike (§§ 667, subds. (b)-(i), 1170.12) and five prior prison term (§ 667.5, subd. (b)) allegations.
On appeal, defendant contends the trial court’s failure to award additional conduct credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) deprived him of equal protection under the law. We disagree and affirm the judgment.

A jury convicted defendant Judge Callies of robbery and kidnapping to commit robbery. Defendant now contends (1) the trial court erred in instructing the jury with the last bracketed paragraph in CALCRIM No. 226 [witnesses], and (2) the abstract of judgment must be corrected to reflect a sentence of life with the possibility of parole, rather than seven years to life in prison.
We conclude there was no instructional error and the abstract of judgment correctly reflects the sentence imposed by the trial court.
We will affirm the judgment.

About 1:00 p.m. on February 14, 2011, officers went to a residence to arrest Rosanna Sazo. Officer Aaron Thompson saw defendant Ernest Sazo walk quickly across the backyard toward a shed. Officer Thompson reported what he had seen to Officer Brandon Hann. Officer Hann approached the shed, found no one inside, but found defendant standing in the two-foot space between the shed and the fence. On the ground, a few feet away from where defendant had been standing, the officer found a glass pipe for smoking methamphetamine and a black bag under a lifter weight. In the black bag, the officer found five baggies containing a total of over 23 grams of methamphetamine, marijuana, two metal spoons, a pipe for smoking marijuana, a writing pen, a blue canvas bag, a sunglass bag, and a total of 22 unused baggies inside a larger baggie with an apple logo printed on it. On defendant’s person, the officer found $1,351.63 in various denominations (eight $100 bills, six $50 bills, twelve $20 bills, ten $1 bills) and $1.63 in change. An expert testified that defendant possessed the methamphetamine for sale.

Since 2004, Syrus Parvizian has filed 25 proceedings in this court, either appeals or original writ proceedings. Each case was resolved adversely to Parvizian. Although Parvizian enlisted counsel to represent him in some of the proceedings (at least initially), he filed many of the proceedings in propria persona.
On April 8, 2013, we issued an order directing Parvizian to show cause why we should not find him to be a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1). That section defines a “vexatious litigant” as a person who, “[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.”[1] In the order to show cause, we identified 11 proceedings in this court in which Parvizian represented himself, and which were resolved adversely to him.[2] These proceedings, briefly summarized, are as follows:

Appellant Jorge Humberto Carlos appeals from the judgment entered following his conviction of one count of first degree murder (Pen. Code,[1] § 187, subd. (a)), two counts of attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a)), two counts of shooting at an occupied motor vehicle (§ 246), and one count of possession of a firearm by a felon (§ 12021, subd. (a)), with true findings on various firearm and gang enhancements (§§ 12022.53, subds. (b), (c), (d), and (e), 186.22, subd. (b)). Carlos raises the following arguments on appeal: (1) the evidence was insufficient to support one of the convictions for shooting at an occupied motor vehicle because it was based on uncorroborated accomplice testimony; (2) the trial court erred in failing to instruct the jury on a witness’s status as an accomplice with CALJIC Nos. 3.16 and 3.19; (3) the trial court erred in instructing the jury on the natural and probable consequences theory of liability with CALJIC No. 3.02; and (4) there was cumulative error. We affirm.

Kenneth Polk was convicted of attempted murder (Pen. Code,[1] §§ 187, 664) and attempted robbery (§§ 211, 664). Polk appeals, claiming multiple errors arising from a juror’s revelation during deliberations that she lived in proximity to the crime scene and felt unsafe as a result, as well as ineffective assistance of counsel. We modify the judgment to correct sentencing errors but otherwise affirm.

Defendant Hugo Eliseo Cabrera appeals from the judgment entered following a jury trial in which he was convicted of two counts of aggravated sexual assault on a child under the age of 14 (Pen. Code, § 269, subd. (a); undesignated statutory references are to the Penal Code), one of which was based upon rape in violation of section 261, subdivision (a)(2), and the other upon sexual penetration, in violation of section 289, subdivision (a); one count of committing a lewd act on a child (§ 288, subd. (a)); and one count of sexual penetration of a child under the age of 14 (§ 289, subd. (j)). Defendant contends that the evidence was insufficient to support his convictions of aggravated sexual assault on a child under the age of 14 and that the trial court erred by failing to give a unanimity instruction. We agree with defendant’s sufficiency of evidence contention and reduce his convictions in the those counts and strike the resulting duplicative count 4, which the parties agree was based upon the same act of penetration as count 2.

This appeal involves a fee dispute between two attorneys who represented a client in a wrongful death-product liability action involving a death that took place in 2006. Unfortunately, this appeal does not allow us to adjudicate with finality the division of fees between the competing attorneys because although it has been four years since the two attorneys first commenced their joint representation, their fee dispute is not yet ripe for resolution. Instead, we address warring anti-SLAPP motions filed by the two attorneys, along with related orders, leaving for another day the award to the parties of their respective shares of the proceeds from their legal work.
Carla DiMare (doing business as the Law Office of Carla DiMare) appeals from four orders: (1) granting the motion of defendants John Taylor and the law firm of Taylor & Ring, LLP to strike several causes of action from DiMare’s complaint arising from a fee sharing dispute because those claims arose from Taylor’s First Amendment-protected activity and therefore qualified as Strategic Litigation Against Public Participation (Code Civ. Proc., § 425.16; SLAPP)[1]; (2) denying DiMare’s motion to strike the Taylor defendants’ cross-complaint against her under the same provision; (3) awarding the Taylor defendants attorney fees for their successful SLAPP motion; and (4) denying her request for a preliminary injunction ordering the release to her of a share of the attorney fees. We affirm all four orders.

Minor E.M. appeals from final dispositional orders requiring him to register as a gang member. The orders were issued by the Napa County Juvenile Court on September 26, 2012, and by the Solano County Juvenile Court on October 3, 2012. Appellant has filed a timely appeal. As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note counsel for appellant has filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436) raising no arguable issues, counsel apprised appellant of his right to file a supplemental brief, and appellant did not file such a brief. Upon review of the record for potential error, we conclude no arguable issues are presented for review and affirm the judgment.

In these dependency cases, Christina V. (Mother) appeals from an order denying her petition pursuant to Welfare and Institutions Code section 388[1] for continued reunification services (A135836), and she appeals (A136450) and petitions for a writ of habeas corpus (A137988) following denial of another section 388 petition seeking to extend her reunification services, and entry of orders terminating her parental rights to her sons J.J. and C.V., and her daughter J.V. We have granted Mother’s requests to consolidate her appeals and to consolidate the habeas petition for consideration with them, and we hereby grant her request to take judicial notice of the records in the appeals in the habeas corpus case.
In her appeals, Mother contends that the court erred when it denied her section 388 petitions without evidentiary hearings, and that her parental rights should not have been terminated because continuing the parent child relationship was in her children’s best interests. (§ 366.26, subd. (c)(1)(B)(i)). In her habeas petition, she argues that the order terminating her parental rights must be reversed due to ineffective assistance of counsel. The issues are well argued on Mother’s behalf but do not raise close questions for reversal. We affirm the orders denying the section 388 petitions and terminating parental rights, and we deny the petition for habeas corpus.