CA Unpub Decisions

Orlando Espinoza appeals from an order modifying his probation pursuant to amended Penal Code section 1203.067,[1] which sets forth various new probation conditions for registered sex offenders. As we recently concluded in People v. Douglas M. (2013) 220 Cal.App.4th 1068 (Douglas M.)—a case nearly identical to the present one—because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, the provisions of revised section 1203.067 may not be applied retroactively to probationers like appellant, who committed their offenses before the effective date of the amendment. Accordingly, the new terms and conditions of appellant’s probation containing these provisions must be stricken.

Real party in interest Lexington National Insurance Corporation (Lexington) appeals from the denial of its petition for relief from bond forfeiture (Pen. Code,[1] § 1308), and from summary judgment entered in favor of respondent. Lexington had posted a bail bond in the amount of $120,000 for the defendant in a criminal case pending against him in the San Mateo County Superior Court. When the defendant failed to appear for trial, the trial court ordered the bond posted by Lexington forfeited. Summary judgment was later entered in favor of the forfeiture.
Lexington appeals from both rulings, claiming that the notice it received of the forfeiture was constitutionally defective. We disagree, and conclude that the recent opinion by Division Three of this appellate district in People v. Accredited Surety & Casualty Co., Inc. (2013) 220 Cal.App.4th 1137 (Accredited Surety) is dispositive of Lexington’s claims here. Accordingly, we affirm the trial court’s orders and resulting judgment.

Daniel Craig Moore was charged with felony infliction of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and convicted of the lesser offense of misdemeanor assault (§ 240). He was also convicted of dissuading a witness from reporting a crime (§ 136.1, subd. (b)), injuring a wireless communication device (§ 591.5), and vandalism (§ 594, subd. (a)). The court granted defendant probation conditioned upon serving 180 days in jail. Defendant failed to appear for his jail commitment and returned to his native England. A warrant for defendant’s apprehension was issued and remains active.
Defendant’s attorney filed a notice of appeal on his behalf several days after defendant absconded. Defendant, through appointed counsel, continues to pursue his appeal and has also filed a petition for a writ of habeas corpus and coram vobis. On the court’s own motion, the appeal and petition are consolidated. The Attorney General moves to dismiss the appeal, claiming fugitive disentitlement. We shall dismiss the appeal and deny the petition.

Mohinder Bedi and Harvinder Dhaliwal were minority and majority shareholders, respectively, of a closely held corporation which owned and operated a gas station. Dhaliwal managed the station and maintained all of its books. Bedi sued Dhaliwal and other corporations controlled by Dhaliwal (Defendant Corporations) for fraud and breach of fiduciary duty, among other causes of action, when he discovered that the corporation’s books were in disarray and that substantial funds were missing from the company. A jury awarded Bedi compensatory and punitive damages. The trial court denied Bedi’s alter ego liability claims against the Defendant Corporations.
Dhaliwal challenges the verdict, arguing that Bedi’s claims were properly derivative corporate causes of action rather than individual claims, that the court erroneously instructed the jury that it could award Bedi additional distributions and missing corporate funds based on a 30 percent pro rata share, and that the trial court erred in not instructing the jury on Dhaliwal’s statute of limitations defense. The Defendant Corporations challenge the court’s denial of their cost bill.[1] We affirm.

Nestled at the foot of San Francisco’s Russian Hill are a group of residential structures known as the Filbert Street Cottages. The new owners of the cottages proposed a substantial “rehabilitation and expansion.” The City and County of San Francisco determined that the proposed project was exempt from environmental review under the California Environmental Quality Act[1] and issued necessary permits and approvals for the project to proceed. Neighbors opposed to the project tried to prosecute administrative appeals, but were repeatedly told that every attempt to appeal the exemption decision was untimely, and the attempt at appealing the issuance of the permits was prohibited by the San Francisco Charter. The neighbors’ petition for a writ of mandate was denied on several grounds, one of which was that the petition was untimely according to the applicable statute of limitations specified by CEQA. We agree and affirm.

A jury convicted appellant Dallas B. Boyce of various felonies, including forcible rape (Pen. Code, § 261, subd. (a)(2))[1] and first degree residential burglary (§ 459) and the court sentenced him to state prison. Appellant appeals. He contends: (1) the court erred by allowing the prosecution to introduce evidence of his police interview on rebuttal; (2) the jury instructions on the sex offenses “were constitutionally infirm[;]” and (3) the prosecutor committed misconduct during closing argument. We affirm.

Defendant Lorenzo L. Angeles appeals after pleading no contest to making a criminal threat. (Pen. Code, § 422.[1]) Defendant also admitted that he had a prior conviction that qualified as a “strike” (§ 667, subds. (b)-(i), 1170.12) and that he had served two prior prison terms (§ 667.5, subd. (b)). He was sentenced to a three year eight month prison term.
On appeal, defendant contends the trial court violated his Sixth Amendment right to counsel when it failed to conduct a Marsden hearing[2] after he complained about trial counsel in his request for a certificate of probable cause. We will affirm the judgment.

Defendant Aevra Shaefona Traylor appeals from a judgment entered after she admitted a probation violation and her probation was revoked. Defendant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal, and that an independent review under Wende was being requested. We notified defendant of her right to submit a written argument on her own behalf. Defendant has filed a supplemental letter brief arguing that the two-year term in county jail imposed by the trial court was overly harsh, that the judge failed to take her mental health problems into consideration during sentencing, and that she did not intend to violate her probation.[1]
Pursuant to Wende, we reviewed the entire record and found two arguable issues regarding the imposition of a parole revocation restitution fine and a probation revocation restitution fine. We asked both parties to file supplemental letter briefs addressing these issues. We modify the judgment and affirm.

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A jury convicted Jaysun Lauri of possession of marijuana (Health & Saf. Code, § 11357, subd. (e); count 2), felon in possession of a firearm (Pen. Code, former § 12021, subd. (a)(1); counts 7 and 13; all statutory references are to the Penal Code unless noted), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 9), possession of methamphetamine (Health & Saf. Code, § 11378; counts 10 and 14), child endangerment (§ 273a, subd. (a)); counts 11 and 12), and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 15).[1] As to certain counts, the jury found Jaysun was personally armed with a firearm (§ 12022, subd. (c)), and found he had suffered four prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)). The jury convicted Annalisa of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 9), possession of methamphetamine (Health & Saf. Code, § 11378; count 10), and child endangerment (§ 273a, subd. (a); counts 11 and 12).
Defendants seek review of a sealed search warrant affidavit and in camera proceedings to ascertain whether the trial court erred in denying a motion to traverse and quash the search warrant, and unseal the affidavit. (See People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).) They also assert the trial court erred in applying the good faith exception to the warrant requirement. (United States v. Leon (1984) 468 U.S. 897, 922-923.) Finally, Jaysun argues the court erred in denying his motion to suppress evidence found in a briefcase during a vehicle stop. Annalisa also challenges several probation conditions as unconstitutionally vague and overbroad. For reasons expressed below, we modify the terms and conditions of Annalisa’s probation, and otherwise affirm the judgment.

Defendant Emmanuel Barrera Galan appeals from a judgment entered after he pleaded no contest to a count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a count of residential burglary (Pen. Code, § 459).[1] His sole contention on appeal is that the restitution fund fine imposed under section 1202.4, subdivision (b) should be reduced from $280 to $240. For the reasons set forth below, we reject defendant’s arguments and affirm the judgment.

Defendant John Gianopoulos, in propria persona, appeals from a Code of Civil Procedure section 527.6 civil harassment restraining order issued upon the petition of Becky Shoemaker, which prohibits him from harassing Ms. Shoemaker for a period of three years. Much of Mr. Gianopoulos's opening brief is devoid of any record references.[1] The most we can derive from the brief is that he attacks the credibility of Ms. Shoemaker and others, as it pertains to a medical malpractice lawsuit (hereafter the underlying lawsuit) that he filed against Radiology Medical Group (RMG) at some point in time; in addition he attacks the factual assertions that Ms. Shoemaker made in her request for a restraining order and her testimony at the hearing on her request for a restraining order. We point out that it is for the trial court to determine credibility. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) Credibility is an issue for the fact finder, and as such, we do not reweigh evidence or reassess the credibility of witnesses. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.) "Conflicts in the evidence, conflicting interpretations thereof and conflicting inferences which reasonably may be drawn therefrom, present issues of fact for determination by the trier of fact who 'is the sole judge of the credibility of the witnesses'. . . ." (Church of Merciful Saviour v. Volunteers of America, Inc. (1960) 184 Cal.App.2d 851, 856–857.) Our task is merely to determine whether the judgment in this case is supported by substantial evidence (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137–1138), whether the facts are legally sufficient to constitute civil harassment under section 527.6,[2] and whether the restraining order passes constitutional muster. (DVD Copy Control Ass'n v. Bunner (2003) 31 Cal.4th 864, 890.)
Background

Defendant Carlos Espinoza appeals after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)[1]), attempted premeditated and deliberate murder (§§ 664/187, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found that defendant committed the murder and attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)), and that in committing the murder and attempted murder, he personally used and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant, who was 17 years old at the time he committed the offenses, to an aggregate prison term of 85 years to life.
On appeal, defendant contends: (1) the gang crime and gang enhancements must be reversed because the gang expert’s opinion was based in part on testimonial hearsay, in violation of defendant’s Sixth Amendment right to confrontation; (2) the judgment must be reversed due to jury misconduct because one juror visited the scene and told the other jurors what he observed; and (3) remand for resentencing is required because the sentence of 85 years to life constitutes cruel and unusual punishment in light of the fact he was a juvenile at the time he committed the offense. We agree with defendant’s third claim, and we will therefore reverse the judgment and remand for resentencing.
Appellate counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his writ petition, defendant argues that he was deprived of the effective assistance of counsel because his attorney failed to object to the gang expert’s opinion testimony. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)

J.L. (Mother) seeks review of the juvenile court’s order bypassing family reunification services and scheduling a permanency planning hearing for her son, J.L. (Welf. & Inst. Code, § 366.26, subd. (c),[1] (hereafter the section 366.26 hearing.) The juvenile court denied Mother reunification services because she had a history of chronic use of drugs and alcohol and resisted prior court-ordered treatment for her substance abuse problem. (§ 361.5, subd. (b)(13).) Substantial evidence supports the decision to bypass reunification services, and we deny Mother’s petition for an extraordinary writ.

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A jury convicted Jaysun Lauri of possession of marijuana (Health & Saf. Code, § 11357, subd. (e); count 2), felon in possession of a firearm (Pen. Code, former § 12021, subd. (a)(1); counts 7 and 13; all statutory references are to the Penal Code unless noted), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 9), possession of methamphetamine (Health & Saf. Code, § 11378; counts 10 and 14), child endangerment (§ 273a, subd. (a)); counts 11 and 12), and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 15).[1] As to certain counts, the jury found Jaysun was personally armed with a firearm (§ 12022, subd. (c)), and found he had suffered four prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)). The jury convicted Annalisa of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 9), possession of methamphetamine (Health & Saf. Code, § 11378; count 10), and child endangerment (§ 273a, subd. (a); counts 11 and 12).
Defendants seek review of a sealed search warrant affidavit and in camera proceedings to ascertain whether the trial court erred in denying a motion to traverse and quash the search warrant, and unseal the affidavit. (See People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).) They also assert the trial court erred in applying the good faith exception to the warrant requirement. (United States v. Leon (1984) 468 U.S. 897, 922-923.) Finally, Jaysun argues the court erred in denying his motion to suppress evidence found in a briefcase during a vehicle stop. Annalisa also challenges several probation conditions as unconstitutionally vague and overbroad. For reasons expressed below, we modify the terms and conditions of Annalisa’s probation, and otherwise affirm the judgment.