CA Unpub Decisions

Jesus Duran Aguayo and Sofia Aguayo appeal from the judgments upon their respective multiple convictions and sentences for filing false tax returns, conspiracy to file false tax returns, filing 19 Preliminary Change of Ownership Reports (“PCOR”) containing false information in Los Angeles County Recorder’s Office in violation of Penal Code[1] section 115 and conspiracy to file false documents. Specifically they assert that their convictions on the counts alleging a violation of section 115 must be reversed as a matter of law because a PCOR does not constitute an “instrument” subject to section 115. In addition, they claim that the trial court imposed unauthorized sentences when it ordered them to surrender their real estate licenses and to refrain from obtaining real property through adverse possession. As we shall explain, a PCOR constitutes an instrument under section 115 because the information contained in a PCOR is used by public agencies to determine the appropriate property tax to assess to real property transfers and thus the reliability of the information disclosed in a PCOR affects the integrity of the public tax rolls. Nonetheless, Aguayos’ contention about their sentences has merit. Accordingly, we modify their sentences and affirm the judgment in all other respects.

A party who had stipulated to arbitrate a dispute subsequently chose not to attend the arbitration. When the arbitrator’s award went against the non-attending party, that party sought to vacate the award. Its motion to vacate was denied, and the trial court subsequently entered judgment confirming the award. The dissatisfied party appeals, contending the award was outside the scope of the arbitrator’s authority and obtained by fraud. We disagree and affirm.

Defendant and appellant Earl Gregory Cox appeals his convictions for second degree robbery, possession of a concealed firearm by a felon, and making criminal threats. Cox was sentenced to a term of 88 years to life in prison. He contends the trial court abused its discretion in consolidating his cases for trial, and there was insufficient evidence to support his convictions for making criminal threats. We affirm.

Plaintiff Clyde Gomez and principal defendant Bruno Baio entered into an agreement wherein Baio sold half of his catering corporation to Gomez for $115,000. Gomez later sued, ultimately contending Baio misappropriated the $115,000 Gomez paid by placing it into his private account rather than the corporation’s capital account. Gomez grounded his claim on the theory that the $115,000 constituted startup capital for a new corporation, not payment to Baio for half of an existing corporation. After a bench trial, the trial court rejected Gomez’s theory, concluding the $115,000 constituted payment for half of an existing corporation owned by Baio. Judgment was entered for Baio accordingly. On appeal, Gomez contends the court’s ruling was unsupported by substantial evidence and constituted an abuse of discretion. We affirm.

Melinda Birke (Birke), through her father and guardian ad litem John Birke, filed suit against Oakwood Worldwide (Oakwood) alleging a nuisance cause of action arising out of the failure of Oakwood to limit secondhand smoke in the outdoor common areas of the residential apartment complex where the Birke family resided. In a prior opinion, we reversed the trial court’s order sustaining Oakwood’s demurrer to the nuisance cause of action alleged in Birke’s first amended complaint without leave to amend. (Birke v. Oakwood (2009) 169 Cal.App.4th 1540 (Birke I).)
As Birke’s first appeal was from the trial court’s ruling on demurrer, we accepted the factual allegations of the operative complaint as true. “Whether or not her claims can survive a properly supported summary judgment motion, let alone prevail following a trial,” we found Birke had stated a cause of action for public nuisance sufficient to withstand demurrer. (Birke I, supra, 169 Cal.App.4th at p. 1543.) “To be sure,” we noted, “Birke may not be able to prove the seriousness of the harm she has alleged or establish the harm outweighs the social utility of Oakwood’s conduct.” (Id. at p. 1551, citation omitted.) Indeed, following a bench trial, the trial court concluded that she had failed to meet her burden of proof and entered judgment in Oakwood’s favor. Thereafter, the trial court denied Birke’s motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. Birke appeals from the judgment as well as the order denying her request for attorney fees. We affirm.

Defendants Andy Wang and Jenney Wang (collectively, defendants) appeal from a judgment entered in favor of plaintiff Xiao Yan Yuan (plaintiff) following a bench trial on her breach of contract action. The judgment awarded plaintiff $865,593.69 in damages and held that plaintiff was entitled to one half of the proceeds from the sale of certain real property in California. Defendants contend that (1) the trial court committed reversible error in failing to defer to the Chinese courts and (2) there is no substantial evidence to support the judgment.[1] We affirm.

We consider together two appeals from judgments in two trial court cases which share a common factual background and involve some of the same parties. The first, No. B227686, is from a 2010 judgment in Lanning v. Kramer, Los Angeles County Superior Court, No. SC099461. The plaintiffs are George Lanning (George L.), his wife Nansee Lanning (Nansee L.), their son Justin Lanning (Justin L.), collectively the Lannings, and The George and Nansee Lanning Revocable Trust, for which the trustees were George L. and Nansee L. The defendants are Andrew Kramer (Andrew K.), his mother Rosalinda Kramer (Rosalinda K.), his son Matthew Kramer (Matthew K.), collectively the Kramers, and his business, West Hollywood Center for Compassionate Healing, Inc. (WHCCH), doing business as The Sunset Shop, Inc.
The second appeal, No. B231249, is from a 2010 judgment in Kramer v. Lanning, Los Angeles County Superior Court, No. SC107434. The plaintiff is Andrew K. The defendants are George L., Nansee L., The Lanning Family Trust, George L. and Nansee L. as trustees, and The George and Nansee Lanning Revocable Trust, George L. and Nansee L. as trustees.[1]

Appellant pled no contest to one count of sale of a controlled substance, but then failed to keep an appointment with a probation officer and, later, also failed to appear in court for his scheduled sentencing hearing. He was sentenced to a three-year midterm for that conviction plus two one-year terms for prison priors. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), he appeals and asks this court to determine if there are any “post-plea sentencing” issues deserving of further briefing. We find none and hence affirm both the judgment and the sentence imposed

Plaintiff Joseph Debro has filed a number of lawsuits since the mid-1990’s in which he has alleged that loans made by governmental entities in 1995 to induce the Los Angeles Raiders (Raiders) to return to Oakland from Los Angeles were, in fact, gifts made without any expectation the loaned amounts would be repaid. (See Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 943-944 (Debro I).) In one earlier case, Debro alleged the Raiders violated the California False Claims Act (Gov. Code, §§ 12650-12655)[1] (the Act) in connection with the 1995 loans by knowingly presenting a false claim to a public entity. (Ibid.) In Debro I, Division Five of this court concluded that Debro’s claim was barred by the applicable statute of limitations. (Debro I, at pp. 955-956.) In this action, Debro again alleges the Raiders violated the Act as a result of their acceptance of the 1995 loans, only now the claim is that the Raiders were the beneficiary of an inadvertent submission of a false claim. The trial court sustained the Raiders’ demurrer to Debro’s complaint without leave to amend, reasoning the action is barred by direct estoppel and the applicable statute of limitations. We affirm the judgment.

In 2008, a jury found defendant to be a sexually violent predator (SVP), as defined in the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA).[1] Defendant appealed from the order committing him to the Department of Mental Health (DMH) for an indeterminate term pursuant to section 6604. The petition to commit defendant as an SVP was filed prior to the passage of Proposition 83. Proposition 83 passed in November 2006, and the SVPA was amended. The petition against defendant was amended to reflect an indeterminate commitment pursuant to the amended SVPA.
Defendant appealed the commitment order and argued that committing him pursuant to the amended SVPA was an improper retroactive application of the statute and that the amended SVPA violated the due process, equal protection, ex post facto, and double jeopardy clauses of the state and federal Constitution. In our nonpublished opinion filed on June 3, 2010, we rejected all of defendant’s contentions except for his challenge to the SVP statute on equal protection grounds. As to that issue, we directed a remand for further proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172 (McKee I).
The California Supreme Court granted review and transferred the matter to us with directions to vacate our decision and to suspend further proceedings pending finality of the proceedings on remand in McKee I, supra, 47 Cal.4th 1172. The San Diego County Superior Court conducted the evidentiary hearing required by McKee I, and concluded that the People had met their burden of justifying the disparate treatment of SVP’s, and confirmed the indeterminate commitment. The Court of Appeal affirmed. (People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).) The Supreme Court denied Richard McKee’s petition for review and thus this case is now final. Accordingly, we now reconsider defendant’s equal protection argument in light of McKee II.
We reiterate our previous opinion on all issues except as to our remand based on defendant’s equal protection claim. Having considered defendant’s equal protection contention in light of McKee I and McKee II, we affirm the order of commitment.

Defendant Alfred Jones was convicted by his no contest plea of a second violation of a protective order within a year of an earlier conviction of violating a protective order. (Count 2; Pen. Code, § 273.6, subd. (e).)[1] He also admitted having a prior strike conviction for criminal threats prohibited by section 422. (§ 667, subds. (b) – (i); 1170.12.) Following the denial of his motion to dismiss the strike, the trial court sentenced him to 32 months in prison (the 16 month lower term doubled). Defendant filed a notice of appeal without obtaining a certificate of probable cause. The notice recited that the appeal was based on matters occurring after the plea that do not affect its validity.
By letter dated May 7, 2013, this court notified defendant that his appellate counsel filed a brief inviting us to identify any arguable appellate issues. Defendant has responded with a half-page handwritten letter. For the reasons stated below, we will affirm the judgment.

Defendant Jose Horace Hermosillo entered a negotiated plea of guilty to three counts related to a burglary and vandalism of a vehicle committed in November 2010, six counts related to a burglary of Valley Medical Center committed in March 2010, and one count of false application for a driver’s license committed in January 2008. And, after a court trial, the trial court found true an allegation for purposes of the Three Strikes law and nine prior-prison-term allegations for purposes of sentence enhancements. It sentenced defendant to 13 years and eight months in prison. On appeal, defendant contends that (1) the trial court erred by sentencing him to a term in excess of the plea bargain, (2) his 16-month consecutive sentence for vandalism constitutes improper multiple punishment (Pen. Code, § 654),[1] (3) he received ineffective assistance of counsel because his counsel failed to object to the consecutive sentence for vandalism, and (4) he is entitled to additional presentence custody credits via retroactive application of the October 2011 amendment to section 4019, which facially applies to defendants who committed their crimes after October 1, 2011. We disagree and affirm the judgment.

A jury convicted defendant Lathan Allen Coneal of residential burglary (Pen. Code, §§ 459, 460)[1] and found he had committed two previous serious or violent felonies (§ 667, subd. (e)(2)). The trial court sentenced defendant to a total of 35 years to life in prison pursuant to California’s “Three Strikes” law,[2] consisting of 25 years to life for committing a third felony, consecutive to two determinate terms of five years each for his previous serious or violent felonies. (§ 667, subds. (a), (e)(2)(A)(ii).) Defendant challenges his sentence, arguing it constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and cruel or unusual punishment in violation of article I, section 17 of the California Constitution. He also challenges the imposition of a restitution fine, a criminal justice administration fee, and an order that he pay victim restitution. For the reasons stated here, we will affirm the lower court’s judgment.

Appellant Douglas Raisch and respondent Lauren Raisch are the parents of four children. They separated in 2000 and thereafter divorced. A 2006 stipulated judgment provided that Douglas was to pay specific amounts of child support and spousal support, and that he was to share college expenses equally with Lauren. Douglas ceased paying spousal and child support in early 2010, and he filed a motion in April 2010 seeking a modification of child support to zero. In December 2010, he ceased paying for college expenses for the two children who were then in college. In April 2011, Lauren brought a motion to enforce the 2006 judgment and sought to recover attorney’s fees.
Both motions were heard in June 2011 and decided in August 2011. The court granted Douglas’s motion to modify child support and reduced the amount of child support, but it declined to make the modification retroactive to the April 2010 filing of the motion. The court ordered Douglas to reimburse Lauren for college expenses that he was required to share with her under the 2006 judgment, and it ordered Douglas to pay $75,000 of Lauren’s attorney’s fees under Family Code section 2030. Douglas claims that the court abused its discretion in refusing to make the child support modification retroactive, requiring him to reimburse Lauren for college expenses, and awarding Lauren attorney’s fees. We reject his contentions and affirm the trial court’s order.