CA Unpub Decisions

Dustin M. Woodford appeals a restraining order prohibiting him from, among other conduct, possessing a firearm. Woodford contends the trial court abused its discretion by not granting him an exemption from that prohibition because he needs to carry a firearm as part of his job. He asks us to remand the matter to the trial court with directions to modify the restraining order to grant the exemption upon a proper evidentiary showing concerning his employment. We decline Woodford's request and dismiss his appeal as moot.

Claudia Munoz Arana appeals from a judgment convicting her of burglary arising from her participation in a theft of clothing from a store. She argues (1) the trial court erred in admitting evidence of her prior petty theft offense to show intent and common plan; (2) there is insufficient evidence to show she entered the store with intent to steal; and (3) the court erred in dismissing a juror as unfit to serve. We find no error and affirm.

Appointed counsel for defendant Juvoune Ray Belton 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.

Defendant pleaded guilty to one count of inflicting corporal injury on a cohabitant, a felony, in violation of Penal Code[1] section 273.5, subdivision (a) and received probation. When he ultimately violated probation and was sentenced, the trial court imposed “the midterm of four years.”
Defendant contends, and the People concede, that the trial court considered an incorrect sentencing triad for defendant’s crime when it imposed a midterm sentence of four years in prison for a violation of section 273.5, subdivision (a). We agree and shall remand the matter for resentencing.
Section 273.5, subdivision (a) provides that the punishment for infliction of felony corporal injury on a cohabitant shall be punished by imprisonment for two, three or four years. The written change of plea agreement and the court’s oral advisement at the time of defendant’s plea both correctly informed defendant that the maximum penalty for the offense of conviction was four years in prison.
During proceedings related to defendant’s alleged probation violations, the court several times expressed its belief that the maximum possible sentence to which defendant was exposed by virtue of his conviction was five years. This was not correct. When it ultimately revoked defendant’s probation and was preparing to sentence him to prison, the court said, “I have difficulty in deciding whether it should be the mitigated term or the midterm” and, after further discussion, announced it had “selected the midterm of four years.”
Because the record reflects that the trial court either misunderstood the scope of its sentencing discretion, or failed to exercise its discretion, it abused its discretion when sentencing defendant. (§ 1170, subd. (b); see People v. Sandoval (2007) 41 Cal.4th 825, 847-848.) We must remand the case for resentencing, at which time the trial court must consider the appropriate triad, make its sentence choice, and place its statement of reasons on the record. (§ 1170, subd. (b).)

Margaret W. and Shawn H., parents of the minor, appeal from orders of the juvenile court denying mother’s petition for modification and terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Mother contends the court abused its discretion in denying the petition for modification and erred in failing to find the parental relationship exception to termination of parental rights applied. Father argues that if the order terminating mother’s parental rights is reversed, the order terminating his parental rights must also be reversed. (Cal. Rules of Court, rule 5.725(a)(2).) We affirm.

Minor M.W. appeals from the juvenile court’s order to pay $2,528 in victim restitution. (Welf. & Inst. Code, § 730.6 (§ 730.6).) Minor claims he was denied due process at the restitution hearing because the juvenile court relied solely on inadmissible hearsay evidence to find he caused the damage for which he was ordered to pay restitution. We conclude the evidence was admissible and thus minor was not denied
due process. We affirm the order of the juvenile court.

After the trial court denied his request for a continuance to obtain private counsel, defendant Joseph Mason pled no contest to rape with a firearm enhancement pursuant to a plea agreement for a 12-year prison sentence and dismissal of four other counts. The court also imposed a fine of $1,140 pursuant to Penal Code section 290.3.[1]
On appeal, defendant first contends the court erred in denying his request for a continuance, violating his Sixth Amendment right to counsel and Fourteenth Amendment right to due process. Second, defendant contends the court erred in not specifically detailing the amounts of and the statutory bases for the sex offense fine.
Because defendant did not show due diligence or meet his burden to show good cause, we find no abuse of discretion in the denial of the continuance. Thus, we affirm defendant’s convictions. Nevertheless, we must remand the case to the trial court for a detailed recitation of the amounts and statutory bases for the $1,140 fine which the trial court failed to specify.

Pursuant to a plea agreement, defendant Kent Craig, Jr., pled to one count of robbery with a gun enhancement. (Pen. Code,[1] §§ 211, 12022.5.) At sentencing, the court ordered defendant to pay $1,718 in restitution directly to the victims for their losses from the robbery and $1,542 to the Victims of Violent Crimes Program (VVCP), pursuant to section 1202.4, subdivision (f).
On appeal, defendant contends the $1,542 restitution award to the VVCP is punishment and, as such, cannot be imposed on judicially determined facts without violating the Sixth Amendment, citing the recent United States Supreme Court case of Southern Union Co. v. United States (2012) 567 U.S. ___ [183 L.Ed.2d 318] (Southern Union), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) as well as Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
We conclude defendant was not entitled to a jury trial prior the imposition of the restitution order, and shall affirm the judgment.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Defendant Thomas Ardell Hill and Tessa C. started dating in June 2010. In December 2010 they became engaged. In August 2011 defendant started using drugs. They went to defendant’s parole officer, seeking his placement in rehabilitation. Defendant did not go to his rehabilitation class. On August 30, 2011, he was ordered into custody for violating parole and Tessa ended their relationship. Three weeks later, defendant was released from custody. He called Tessa at least 20 times a day, every day for several days, leaving obscene messages, calling her offensive names, and threatening her and her son. She told him several times to stop calling. On September 25, 2011, she called the police when the calls did not stop and she started to fear for her life. Someone banged on her doors, and defendant admitted to her that it had been he. On September 26, 2011, defendant drove toward her as she was driving her car out of the driveway. She continued on her way, and he pulled up to her and shouted that she was “ ‘going to pay for sending [him] to jail.’ ” She felt scared. When she drove to the police station, he drove away. On another occasion when she arrived home in the evening, defendant’s car was parked nearby. She drove away from her home and called the police. Defendant left her a message, saying he had been visiting a neighbor. One Sunday morning in early October 2011, defendant was standing in her backyard. She called the police.

This dispute arises out of the construction of an Embassy Suites Hotel. When the owner of the hotel sued the general contractor for construction defects, the general contractor cross-complained against various subcontractors, including J & A Mechanical, Inc., the HVAC (heating, ventilation, and air conditioning) subcontractor. J & A Mechanical then filed a cross-complaint against Shephard Mechanical Contractors, Inc. (Shephard), the second tier HVAC subcontractor. Shephard, in turn, cross-complained against Circo System Balance, Inc. (Circo), the third tier HVAC subcontractor. Shephard sought indemnity and a defense from Circo, pursuant to the subcontract agreement that contained an indemnity provision and a promise to defend.
After Circo refused the tender of defense, Zurich North America (Zurich), Shephard’s insurer, paid for Shephard’s defense and paid the $50,000 settlement of claims against Shephard. Zurich then intervened in Shephard’s cross-complaint against Circo for indemnity on a theory of equitable subrogation. Zurich moved for, and the trial court granted, summary adjudication on the issue of Circo’s duty to defend and indemnify Shephard.

Defendant Jose Plascencia, an inmate at New Folsom Prison, physically fought with Officer Wallace, Lieutenant Ventimiglia and Sergeant Quinn. He claimed he acted in self-defense in response to Wallace’s “sudden aggression” and ensuing actions by other officers. The jury found defendant guilty of one count of battery by a prisoner of a non-confined person (Ventimiglia) and two counts of obstructing an officer in the performance of his duties (Ventimiglia and Quinn). It acquitted him of battery and obstruction of Wallace.
Defendant appeals his conviction, contending the trial court failed to adequately instruct the jury on self-defense. He argues the court had a duty to instruct sua sponte with CALCRIM No. 3470 (3470) and the failure to do so resulted in prejudicial error. As we explain, we disagree and shall affirm.

Defendant Kevin Patrick Snow entered a negotiated plea of no contest to three counts of theft by false pretenses (Pen. Code, §§ 487, subd. (a), 532, subd. (a)) and one count of engaging in business without a license, a misdemeanor (Bus. & Prof. Code, § 7028) in exchange for dismissal of a white-collar crime allegation (Pen. Code, § 186.11). The court granted probation for a term of five years subject to certain terms and conditions including 120 days in jail.
Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied. He contends that insufficient evidence supports his ability to pay the $736 presentence investigation report fee and the $164 per month probation supervision fee. We conclude that defendant forfeited this contention by failing to object to the imposition of these fees in the trial court.

Gina and Janice are the children of Theodore and Josephine Citta, now deceased.[2] In 1988, Theodore and Josephine established the Revocable Trust Agreement of Theodore Citta and Josephine Citta (Living Trust), which they amended in 1992, 1993, and 1999. Upon the death of both Theodore and Josephine, or in the event neither was willing or able to serve as trustee, Janice and Gina were to serve as co-trustees. Theodore died on December 31, 1999, and in accordance with the terms of the Living Trust, the trust estate was divided into two separate trusts -- the irrevocable Theodore Citta and Josephine Citta Family Trust (Family Trust) and the revocable Josephine Citta Trust (Survivor’s Trust). The Survivor’s Trust was established for Josephine’s sole benefit, and consisted of her separate property and her interest in her and Theodore’s community estate. The balance of the trust estate was allocated to the Family Trust. Upon Josephine’s death, all remaining assets of the Survivor’s Trust were to be distributed to the beneficiaries of the Family Trust as follows: one-half to Janice; and one-half to Gina.

Kent H. Landsberg Company (KHL) negotiated the settlement of an existing debt owed by ice cream manufacturer Mollicoolz and its president, Bryan Freeman. One term of the written settlement agreement and corresponding promissory note required Mollicoolz and Freeman, “as an individual,” to pay $45,000 on or before May 20, 2009. When the sum was not paid, KHL sued Mollicoolz and Freeman on four alternative causes of action: breach of contract, breach of promissory note, account stated, and money had and received. After KHL obtained a default judgment against Mollicoolz, KHL brought the instant motion for summary judgment (or, alternatively, for summary adjudication) against Freeman on all causes of action. The trial court granted KHL’s motion for summary judgment.
In this appeal, Freeman contends KHL was not entitled to summary adjudication on any of the four causes of action because he has a valid defense to KHL’s claim to the $45,000 sum: that the money was never owed. Additionally, because Freeman disputed ever receiving any money from KHL, Freeman argues summary judgment should not have been granted on KHL’s claim for money had and received. Finally, Freeman argues, summary adjudication on all causes of action should have been denied because KHL’s damages against Freeman could not be proved with certainty, inasmuch as its damages claim included attorney fees attributable to obtaining a default judgment against the other defendant, Mollicoolz.
Although we agree that the undisputed facts do not show that KHL is entitled to summary adjudication of its common count claims for account stated and money had and received, it was entitled to judgment in the amount of $45,000 plus interest, late fees, and attorney fees and costs, based on its breach of contract and breach of promissory note causes of action. Accordingly, we shall affirm the judgment.