CA Unpub Decisions

Defendant Kevin Montiel received a prison term of life with the possibility of parole after being found guilty of violating Penal Code section 220, subdivision (b) (section 220(b); all further statutory references are to the this code) with the finding a non-accomplice was present (§ 667.5, subd. (c)(21)). Section 220(b) imposes a life term on anyone “who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape . . . .” On appeal, defendant argues the trial court committed reversible error by not instructing the jury first degree burglary and assault with intent to commit rape are lesser included offenses of section 220(b). We agree the court so erred, but find the error harmless under the circumstances of this case. Therefore, we affirm the judgment.

In December 2011, a petition was filed alleging that Johnny C., a minor (17 years old at the time of the petition’s filing), came within the provisions of Welfare and Institutions Code section 602. The petition charged the minor with four counts, namely, carrying a concealed firearm in a vehicle, possession of a firearm, removal of identifying marks on a firearm, and operating a motor vehicle without a license. The minor filed a motion to suppress evidence under Welfare and Institutions Code section 700.1, which was denied. Pursuant to the People’s motion, the court dismissed one count and amended another count. After the minor admitted count 4—operation of a motor vehicle without a license—the court sustained the petition as to that count, dismissed the two remaining counts, declared the minor to be a ward of the court, and placed him on probation for 24 months under various terms and conditions.
The minor claims on appeal that the court erred in denying the suppression motion. He argues that the officer did not have sufficient objective facts to support a reasonable suspicion justifying the minor’s detention. He also asserts a series of challenges to seven of the probation conditions imposed by the court, including claims that some conditions are vague and overly broad in violation of due process under the Fourteenth Amendment of the United States Constitution. We conclude that the court did not err in denying the suppression motion. We agree that some of the probation conditions should be modified. We will therefore order the conditions modified as indicated below and will affirm the dispositional order as so modified.

Defendant David Santillan Lemus was convicted by a jury of an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). They acquitted him of charges of attempted murder and criminal threats, and were unable to reach a verdict on the lesser included offense of attempted voluntary manslaughter, arising from the same altercation. The trial court declared a mistrial on that charge and later dismissed it in the interests of justice (Pen. Code, § 1385, subd. (a)). Defendant was sentenced to the midterm of three years for the assault with a deadly weapon and ordered to pay restitution and various fines and fees. He filed a timely appeal.
We appointed counsel to represent defendant on appeal. While not arguing against defendant, counsel filed a brief which fully set forth the facts of the case and advised us there were no arguable issues on appeal. The brief included a review of the record and consideration of possible arguments, but concluded none of those arguments had any chance of success.
We informed defendant he had 30 days to file written argument on his own behalf. Three months have passed and we have received no such argument. We have reviewed the record of defendant’s trial and the brief filed by defendant’s counsel, and find ourselves in agreement with defendant’s counsel: There is no arguable error in the proceedings against defendant. (People v. Wende (1979) 25 Cal.3d 436.)

A.N. (mother) appeals from the juvenile court’s orders denying her petition to modify the court’s previous orders (Welf. & Inst. Code, § 388) and terminating her parental rights (Welf. & Inst. Code, § 366.26).[1] Mother contends: (1) the juvenile court abused its discretion by denying mother’s request to reinstate her reunification services for six months, and (2) the court further erred by failing to apply the “beneficial relationship” exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).
We disagree and affirm the court’s order.

This case arises from defendant Dennis John Alston ordering items over the Internet and paying for them with forged money orders. Defendant appeals from judgment entered following jury convictions for forgery (Pen. Code, § 470, subd. (d);[1] counts 1-4) and possession or display of a driver’s license or identification card with intent to commit forgery (§ 470b; counts 6-8). The jury also found true one prison prior (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The jury found defendant not guilty of count 5 for forgery. The trial court sentenced defendant to six years on count 1, and to consecutive terms of one year four months for each of the other counts, for a total prison term of 15 years.
Defendant contends his convictions for counts 6 through 8 must be reversed because there was insufficient evidence that he intended to commit forgery. As to counts 6 and 7, defendant argues sentencing should be stayed because the crimes were not incidental to the offenses alleged in counts 1 through 4, and were not committed with a single intent and objective. Defendant also argues there was insufficient evidence to support the prior strike allegation and his presentence good conduct credits must be recalculated under the recently amended version of section 4019. Defendant also requests this court to order the trial court to correct the abstract of judgment to reflect accurately only one prison prior.
We conclude there was no error, other than that the sentencing minute order and abstract of judgment incorrectly state defendant had more than one prison prior. We therefore affirm the judgment, but instruct the trial court to correct the November 8, 2011, minute order and abstract of judgment to reflect that defendant had only one prison prior.
II

In this anti-SLAPP case, we largely agree with the trial court that plaintiff and respondent Victoria Munoz Richart's complaint against defendant and appellant MiraCosta Community College District (District) is not subject to a motion to strike under the anti-SLAPP statute, Code of Civil Procedure[1] section 425.16. The fact Richart's employment as a District administrator ended in 2010 following public controversy in 2006 and 2007 about her leadership does not bring the wrongful termination causes of action she is now asserting within the scope of the anti-SLAPP statute. The record shows Richart's wrongful termination causes of action against District are based on District's failure in 2009 and 2010 to perform duties imposed on it by the state and federal Constitutions, her contract with District or statute, and not on any exercise by District of any right protected under the petition and free speech provisions of the state and federal Constitutions. Thus, at this point in the proceedings, Richart's wrongful termination claims do not allege causes of action which arise "from any act in furtherance" of "right of petition or free speech" within the meaning of the anti-SLAPP statute.
As we also explain, with respect to Richart's claims she has been stigmatized by District's conduct in terminating her employment, the record is clear that her claims are based in substantial part on public statements individual members of District's board of trustee's (Board) made beginning in 2006. Thus, we conclude Richart's stigmatization claims are within the scope of the anti-SLAPP statute. However, we conclude that, with respect to those claims, Richart has provided sufficient evidence of likely success on the merits.
Finally, we conclude that Richart's retaliation claims, her claim she was subjected to a violent threat, and her declaratory relief cause of action are not within the scope of section 425.16.
In sum, because the claims Richart asserts are either outside the scope of the anti-SLAPP statute or Richart has shown a likelihood of success with respect to covered claims, we affirm the trial court's order denying District's motion to strike.

Plaintiff Gregory B.H. Cason (Plaintiff) appeals a judgment apportioning attorney fees and costs incurred in his partition action against defendants Theresa A.H. Cason, also known as Theresa H. Schoneman, Donald S. Cason, David B.H. Cason and Diane Cason, as trustees of the David Cason and Diane Cason 2000 Family Trust (together Defendants). On appeal, Plaintiff contends the trial court abused its discretion by apportioning attorney fees and costs incurred in the partition action for the common benefit of the parties on an equitable basis of 50 percent to Plaintiff and 50 percent to Defendants.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2003, Plaintiff filed a complaint requesting partition of certain real property owned by Plaintiff and Defendants in cotenancy, commonly known as "Elder Canal, Gates 9 & 10" and consisting of about 160 acres (Property). The complaint alleged Plaintiff and each of the three Defendants owned an undivided one-fourth interest in the Property. It sought partition by sale of the Property, alleging a sale would be more equitable than division in kind because the Property is farm land and too small to be divided into parcels that can be economically farmed. Defendants answered the complaint, opposing partition by sale and, in the event the trial court ordered partition of the Property, requesting that Plaintiff be allotted a parcel according to his one-fourth interest and Defendants be allotted a parcel according to their collective three-fourths interest.

Johnneisha Kemper brought a federal civil rights action against San Diego County (County) and the City of San Diego (City), and several of their employees, alleging defendants violated her constitutional rights when they engaged in actions leading to the termination of her parental rights to her daughter. (42 U.S.C. § 1983 (§ 1983).) The trial court sustained defendants' demurrers without leave to amend.
We conclude the court properly sustained the demurrer on Kemper's claims against the County and its named employees. These claims are barred because they constitute an improper collateral attack on the prior juvenile dependency orders and judgment. However, we conclude the court erred in sustaining the demurrer on Kemper's claims against the City and its named employees. These claims are not barred because they were not litigated in the earlier juvenile dependency proceedings.

Appointed counsel for defendant Anthony Ralph Chavez has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment, but order the abstract of judgment corrected as we explain post.

Defendants Ernesto Gueyger and Rudy Ponce, along with Sergio Bravo,[1] stole cigarettes and snacks from a 7-Eleven store. A jury found Gueyger and Ponce guilty of commercial burglary (Pen. Code,[2] § 459), and petty theft with a prior (§ 666). Gueyger was the getaway driver; he led police on a high-speed chase, rammed a patrol car, and fled again before the police apprehended him. In addition to the burglary and theft charges, Gueyger was also found guilty of robbery (§ 211), being an accessory after the fact (§ 32), recklessly evading the police (Veh. Code, § 2800.2), and assault with a deadly weapon (his car) on a peace officer (§ 245, subd. (c)). Ponce had also participated in the robbery of a different 7-Eleven store two days before. As to that incident, the jury found him guilty of robbery (§ 211) and petty theft with a prior (§ 666).
Gueyger and Ponce contend their convictions for petty
theft with a prior (§ 666) must be reduced to misdemeanor
theft because a section 666 conviction now requires three prior theft-related convictions, which neither defendant has suffered. Further, they contend they did not personally waive jury on the priors. The People concede that under a new amendment to section 666, which is retroactive, the section 666 convictions cannot stand and must be reduced to misdemeanor theft.
Gueyger further contends, and the People concede, that he cannot be convicted of robbery and being an accessory after the fact for simply driving away after the robbery, and that the abstracts of judgment must be corrected to show that credits were awarded pursuant to section 2933.1 rather than section 4019. As we will explain, we agree with the parties on these points.
Gueyger also argues that section 654 bars a separate sentence on reckless evading because it was part of a continuous course of conduct, with the same intent and objective, as the assault. Although the People do not agree with Gueyger on this point, we do. Finally, we construe the notation on the abstract of judgment that Gueyger’s driver’s license was suspended for life to be acknowledgement that his license will be revoked by the Department of Motor Vehicles pursuant to Vehicle Code section 13351.5 because he used a motor vehicle as a deadly weapon in the felony assault and we remand for the trial court to add this explicit finding to the abstract of judgment.

Aaron Meredith appeals from an order committing him to the State Department of State Hospitals (formerly Department of Mental Health) for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)[1] Appellant claims that the evidence does not support the finding that he received 90 days of treatment within a year of his parole or release date (§ 2962, subd. (c)) and asserts that the MDO certification was not timely (§ 2962, subd. (d)(1)). We affirm.
Procedural History
Appellant suffers from a severe mental disorder, schizophrenia, paranoid type, manifested by delusional beliefs, paranoia, auditory hallucinations, and psychomotor agitation. In 2010 he was sentenced to state prison for carjacking. (§ 215, subd. (a).) Doctor Kevin Perry testified that appellant met all the MDO criteria, that the mental disorder was not in remission, and appellant posed a substantial danger to the community.

The sole issue on appeal is whether a dispute regarding an insurer’s failure to reimburse its insured for expenses incurred in litigation falls within the scope of a contractual arbitration provision. The contractual provision requires the insured and insurer arbitrate disputes over “whether coverage is provided.” We conclude a dispute over the failure to reimburse is related to coverage, but the two concepts are not the same. We therefore affirm the trial court’s denial of the insurer’s motion to compel arbitration.

Defendant and appellant Frank William Palmer (defendant) appeals from the denial of his postjudgment motion to increase his award of presentence custody credit. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues and requesting a court review of the record. On December 18, 2012, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. We have reviewed the entire record and as we have found no error or arguable issues, we affirm the judgment.

Andrei Voishvillo appeals a judgment extending his commitment to the State Department of State Hospitals (SDSH) for treatment as a mentally disordered offender (MDO) (Pen. Code, §§ 2962, 2970), following his 2008 conviction for battery by gassing (§ 243.9).[1] We conclude, among other things, that: 1) substantial evidence supports the finding that Voishvillo suffers from a severe mental disorder, and 2) Voishvillo has not shown that the trial court misunderstood the People's burden of proof. We affirm.