CA Unpub Decisions

We set forth the facts underlying the siblings’ dispute in Sutherland I and need only briefly summarize them here. Sutherland and Arent’s parents held three Lakeport properties in trust: a 76-acre parcel on Scotts Valley Road that includes a ranch house on one side of the road and a cabin on the other (“the Ranch”), a nearby hayfield with no structures, and a 15-acre parcel across the road from the Ranch that includes a house where appellants have lived since the early 1990s. The parents named Sutherland as the successor trustee, and she, Arent, and their two other siblings are all trust beneficiaries. Sutherland and Arent’s mother died in 2016, and their father died in February 2017. Shortly after the father’s death, Arent told Sutherland that their father had appointed him (Arent) as lead trustee and had changed how he wanted the trust administered.
Sutherland initiated litigation, which lasted years.

The Public Guardian filed a “Petition for Appointment of Temporary Conservator and Conservator” pursuant to the LPS Act on August 13, 2020. (Capitalization omitted.) The petition, supported by a declaration and a recommendation from the Contra Costa Regional Medical Center for a conservatorship, alleged that A.I. is gravely disabled under section 5008, subdivision (h)(1)(A) as a result of a mental disorder. On that same date, the court appointed the Public Guardian as a temporary conservator.
At the initial hearing on the petition on August 25, 2020, the deputy public defender representing A.I. advised the court that A.I. objected to the petition, did not waive time, and wanted a “Zoom court trial.” A.I.’s counsel requested a trial date of September 15, 2020, which the court granted. After continuances on September 15, September 17, October 6, and October 7, 2020, trial commenced on October 13, 2020.

In July 2015, Alejandra L. was dating appellant, who lived in the same apartment complex she did. She was also married and her husband was in jail. She had not told her husband about her relationship with appellant.
The victim, Mark Jack, was dating Alejandra’s sister, Monica L. Jack and Alejandra’s husband were very close friends. Jack either knew or suspected Alejandra was dating appellant and was bothered by it because of his friendship with Alejandra’s husband. Monica testified there was underlying tension between Jack and appellant but they “were cordial with each other.” Alejandra testified there were no issues between the two. She also testified she had slept with Jack before starting her relationship with appellant.
On the day of the shooting, Monica came over to Alejandra’s apartment about 2:00 p.m. Alejandra smoked marijuana and Monica had a Xanax. Later, a few others joined them and they all sat outside drinking, except for Alejandra who did not drink.

Alejandro Arturo DeLeon appeals after a jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)) and possessing a firearm as a felon (§ 29800, subd. (a)(1)), and it also found “true” an enhancement allegation that DeLeon personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced him to an indeterminate prison term of 42 years to life.
DeLeon asserts: (1) the prosecutor’s peremptory challenge of an African-American prospective juror violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the trial court erroneously admitted experimental evidence; and (3) the trial court abused its discretion by declining to strike the firearm enhancement. We affirm.

Alejandro Arturo DeLeon appeals after a jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)) and possessing a firearm as a felon (§ 29800, subd. (a)(1)), and it also found “true” an enhancement allegation that DeLeon personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced him to an indeterminate prison term of 42 years to life.
DeLeon asserts: (1) the prosecutor’s peremptory challenge of an African-American prospective juror violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the trial court erroneously admitted experimental evidence; and (3) the trial court abused its discretion by declining to strike the firearm enhancement. We affirm.

Jane Doe was a 33-year-old woman between seven and eight months pregnant, who had significant intellectual and learning disabilities. On March 5, 2017, she left a transitional housing shelter in Oakland where she lived to take a transit bus to Love Temple Missionary Baptist Church located on 85th Avenue and Birch Street in Oakland. The church has a parking lot located in the rear. Jane Doe is a member of the church who attended sporadically, but was known by a male deacon and a female member.
At 8:25 a.m. that day, Jane Doe exited the bus and walked across 85th Avenue. Because she was pregnant, she was feeling tired and her feet were swollen. As she was walking down the sidewalk on 85th Avenue near the church, defendant drove up in a white van with tinted windows. Through an open window, defendant said to Jane Doe, “ ‘You know me.’ ” Jane Doe had never seen him before, and feeling “[k]ind of scared,” she responded, “ ‘I don’t know you.’ ”

Despite the substantial history to this case and the lawsuits that preceded it, the issue before us in this appeal is narrow. We include only the facts and procedural history germane to its resolution.
Prozan, who is an attorney and self-represented, filed the instant lawsuit on September 24, 2019, asserting a single cause of action against attorney John Hannon and Hannon’s client, Derar Hawari, for wrongful use of civil proceedings (operative complaint). A claim for wrongful use of civil proceedings is often referred to as a claim for “malicious prosecution,” and we use the terms interchangeably herein.
Prozan’s operative complaint alleged that in 2012 and 2013, he filed lawsuits on behalf of two sets of clients, seeking damages related to an allegedly fraudulent investment scheme. Hannon’s client Hawari was one of the defendants in those lawsuits.

In 2002, defendant was charged with murder (§ 187), two counts of attempted carjacking (§§ 215, subd. (a), 664), and two counts of attempted second degree robbery (§§ 211, 664). The complaint alleged that defendant committed each of the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Defendant pleaded no contest to first degree murder. After a bench trial, the superior court found the gang enhancement true. The court sentenced defendant to 25 years to life consecutive to a 10-year determinate term for the gang enhancement.
Defendant appealed, contending that there was insufficient evidence to sustain the gang enhancement and that the consecutive 10-year term constituted an unauthorized sentence. In case No. H025916, this court upheld the true finding on the gang enhancement but agreed that section 186.22, subdivision (b)(5) precluded the imposition of a consecutive 10-year term.

Defendant was charged by first amended information with the murder of Carlos Alberto Martinez (§ 187, subd. (a); count 1) and assault with a firearm with respect to Jose Rodriguez Martinez (§ 245, subd. (a)(2); count 2). The information also alleged that defendant personally and intentionally discharged a firearm and proximately caused death (§ 12022.53, subds. (b), (c) & (d)) regarding the murder, and that he personally used a firearm (§ 12022.5, subd. (a)) regarding the assault. The information further alleged that defendant had one prior serious felony conviction that also qualified as a strike (§ 667, subds. (a)(1) & (b)-(i)), and that he had served prior prison terms (§ 667.5, subd. (b)).
A. The Trial
The homicide victim, Carlos Martinez, and his girlfriend, Amy Fernandez, lived in a tent in Watsonville. Their tent was located in a slough that contained bushes, vines, and tree stumps. The slough was located behind some businesses and down a steep hill.

On May 9, 2017, plaintiff filed a civil complaint against the county and several Doe defendants alleging negligence for injuries he allegedly sustained after falling in his jail cell. According to the allegations in the complaint, water was leaking from the toilet in plaintiff’s cell, his walker skidded on the water, he lost his balance, and he fell on the floor.
The county answered the complaint and filed a motion for summary judgment. In response to the summary judgment motion, plaintiff filed a notice of “qualified nonopposition” on March 25, 2019. (Capitalization omitted.)
On April 2, 2019, two days before the scheduled hearing on the summary judgment motion, plaintiff filed a document entitled “Amendment to Complaint (CCP 474)” in which he substituted Avila and Arrendondo for Does 1 and 2. (Capitalization omitted.)
On April 4, 2019, the trial court filed an order granting the county’s motion for summary judgment.

Mother and father married in 2004. Their only child was born later that year. They separated on December 31, 2004, and father filed for divorce the following year. Since that time, the parties have been engaged in high conflict litigation concerning child custody and support.
In 2011, following a child support trial, father was ordered to pay mother $1,441 in monthly child support. On January 20, 2015, mother filed a request for order seeking to modify child support. She asserted that father’s annual income exceeded $4 million and requested $10,000 per month in child support. In a supporting declaration, mother declared that during the 2011 child support trial father sold a company he had founded to Motorola in exchange for $4.6 million in cash plus options and restricted stock valued at $3.7 million and that father had failed to disclose that fact at trial. Mother lodged supporting documents with the court.

Mother and father married in 2004. Their only child was born later that year. They separated on December 31, 2004, and father filed for divorce the following year. Since that time, the parties have been engaged in high conflict litigation concerning child custody and support.
In 2011, following a child support trial, father was ordered to pay mother $1,441 in monthly child support. On January 20, 2015, mother filed a request for order seeking to modify child support. She asserted that father’s annual income exceeded $4 million and requested $10,000 per month in child support. In a supporting declaration, mother declared that during the 2011 child support trial father sold a company he had founded to Motorola in exchange for $4.6 million in cash plus options and restricted stock valued at $3.7 million and that father had failed to disclose that fact at trial. Mother lodged supporting documents with the court.

In May 2019, the Fresno County Department of Social Services (department) received a referral alleging general neglect when six-year-old M.M. (not subject to this proceeding) was found wandering alone near a busy street. M.M. and her siblings, then 11-year-old D.M., then eight-year-old K.C.M., then four-year-old K.L.M., then three year-old K.B.M., and then 10-month-old K.A.M., were all in the care of their 14 year-old sister, S.S., in the motel room where they lived. Law enforcement responded and waited over an hour for the parents to return. When they did, mother reported it was only the second time she had left the children alone and that she home schooled the children. Law enforcement placed a hold on the children. The children reported to the investigating social worker they were left in S.S.’s care for many hours every day and sometimes the parents would not return home until late at night.

On November 1, 2007, an amended complaint was filed against appellant, Juan Dejesus Burboa, Augustina Asencion Burboa, and Carlos Chavez alleging a single charge of murder, committed in the course of a robbery. Juan Dejesus Burboa alone faced additional allegations of being a principal in the murder armed with a firearm and personally discharging a firearm. On December 28, 2007, appellant pleaded no contest to one count of murder as charged in an information filed on November 14, 2007; all enhancements and allegations were dismissed, and appellant was eventually sentenced to a term of imprisonment of 25 years to life.
On June 18, 2020, appellant petitioned for resentencing under former section 1170.95. Although never formally determining appellant had made a prima facie showing of eligibility, the trial court ordered briefing and held a show cause hearing at which the People acknowledged their obligation to prove appellant was ineligible for resentencing.