CA Unpub Decisions

On appeal defendant Raymond Campos challenges a post-conviction victim restitution award of $74,000.69, which includes $22,286.01 in lost wages and $51,714.68 in medical expenses.[1] He claims the evidence is insufficient to support the award of medical expenses. For the reasons stated below, we will affirm the award.

The People filed an amended petition to extend the commitment of William Karl Olsen under the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.)[1] after his commitment expired on October 5, 2008. The SVPA provides for the involuntary civil commitment for treatment and confinement of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a sexually violent predator (hereafter, sometimes SVP). A jury found the allegation that Olsen was a sexually violent predator to be true. By order filed on February 22, 2011, the trial court committed Olsen to the state Department of Mental Health for an indeterminate term.
On appeal, Olsen raises the following issues: (1) the evidence was insufficient to show that he is currently dangerous; (2) the trial court’s response to juror question No. 5 was improper; (3) indeterminate commitment under the SVPA violates his constitutional right to equal protection; and (4) the SVPA violates his due process rights and the ex post facto and double jeopardy clauses and the Eighth and Fourteenth Amendments of the federal constitution.
Pursuant to the ruling of the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee) that the equal protection challenge to the indeterminate term under the SVPA has potential merit, we will reverse the judgment and remand the matter for further proceedings consistent with McKee. We find no merit in the remaining issues raised by Olsen, for the reasons stated below.

Appellants are more than 60 individuals and entities who invested millions of dollars with Four Star Financial Services, LLC (Four Star), beginning in 1999. They received regular monthly distributions from Four Star until October 2002, when Four Star ran out of cash and ceased making distributions. At that time, appellants (hereafter, plaintiffs) suspected that Four Star was in financial trouble and stopped investing.
Many investors, including several of the plaintiffs in this case, subsequently filed lawsuits against Four Star and its principals alleging that Four Star was a Ponzi scheme. “A ‘Ponzi scheme’ is a fraudulent arrangement in which an entity makes payments to investors from moneys obtained from later investors rather than from any ‘profits’ of the underlying business venture. The fraud consists of funneling proceeds received from new investors to previous investors in the guise of profits from the alleged business venture, thereby cultivating an illusion a legitimate profitmaking business opportunity exists and inducing further investment. [Citation.]” (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 906, fn. 2.)

On April 10, 2009, two members of the Monterey County Joint Gang Task Force, Monterey County Sheriff’s Deputy Jesse Pinon and Salinas Police Officer Jeffrey Alford, watched as defendant Raymond Campos, a long-time Norteño, emerged from a Salinas apartment and engaged in two consecutive hand-to-hand transactions with the drivers of two vehicles who had just pulled into the parking lot of the apartment complex. Before the second driver left the lot, the officers got out of their parked, unmarked car to question Campos about this conduct. Before they reached him, Campos got into his own car and began to back out of the lot. Officer Alford got Campos to stop momentarily by hitting the driver’s side of the car with his hand and opening the driver’s door. In disregard of Alford’s instructions to stop, Campos resumed backing up. Deputy Pinon was knocked to the ground by the open driver’s door and dragged underneath the car for a short distance. Campos fled in his car as Alford fired several shots.

Viktor Barilo (defendant) appeals from the judgment following his conviction on six counts of attempted sex crimes involving a minor: count 1, attempted lewd and lascivious conduct on a minor under the age of 14 (Pen. Code §§ 664, 288, subd. (a); all further statutory references are to this code); count 2, attempted oral copulation with a minor under the age of 14 and at least 10 years younger than defendant (§§ 664, 288a, subd. (c)); count 3, attempted showing up at an arranged meeting with a person believed to be a minor with intent to engage in lewd and lascivious acts (§§ 664, 288.3, subd. (b)); and counts 4-6, attempted showing, distributing or sending harmful material to a minor with the intent of seducing the minor (§§ 664, 288.2, subd. (a).) With credit for time served, defendant was sentenced to a total of 20 months in prison, but execution of that sentence was suspended and defendant was placed on probation for 3 years.
Defendant challenges his convictions on all counts other than count 1 on the merits, arguing: (1) his conviction on count 2 (attempted oral copulation) must be reversed because it is unsupported by substantial evidence; (2) his conviction on count 3 (attempting to show up at a meeting with a person believed to be a minor with the intent to engage in lewd and lascivious acts) must be reversed because the court failed to properly instruct the jury on all the elements of the offense; and (3) his convictions on counts 4-6 (attempted showing distributing or sending harmful material to a minor with the intent of seducing the minor) must be reversed because the crime is facially overbroad in violation of the First Amendment. We reject these contentions and consequently affirm defendant’s convictions.
Defendant also claims the $200 fine imposed against him pursuant to section 288 was unauthorized and must be stricken, and contends that two minute orders reflecting his convictions and sentence are erroneous and must be corrected. We conclude the fine was proper, but as the Attorney General concedes, the minute orders are both inaccurate. On remand, the minute orders must be corrected.

A modification decision.

Ducoing Enterprises, Inc. (DEI), and Ducoing Management, Inc. (DMI), sued Winston & Associates Insurance Brokers, Inc., doing business as Winston Insurance Services (Winston), an insurance brokerage, and John Place, an insurance broker, for negligence and other causes of action because they had not procured insurance coverage for employee dishonesty. DEI and DMI appeal from a judgment entered after the trial court granted Winston and Place’s motion for nonsuit at the close of DEI and DMI’s case‑in‑chief. As part of the appeal, DEI and DMI also challenge an order granting a motion in limine to exclude a certain communication. For the reasons we explain, we affirm the judgment against DMI, and, in all other respects, reverse the judgment and remand.

A jury found defendant Daniel Morales guilty of burglary as charged in count one of the information, attempted forcible rape as charged in count two, attempted sodomy by force as charged in count three, and three counts of forcible lewd act upon a child under 14 as charged in counts four, five, and six. The jury found it to be true that counts four, five and six were committed during the commission of a first degree residential burglary in which the intent at the time was rape, that defendant used a dangerous or deadly weapon in the commission of the offenses, and that defendant engaged in the tying and/or binding of the victims while committing the offenses. The court sentenced defendant to a total of 50 years to life plus five years in prison.
On appeal, defendant contends the trial court erred when it limited his questions of a victim regarding past sexual assaults against her and in instructing the jury about the tying or binding allegation. Finding no error, we affirm.

Kenneth Kassouf (Kenneth)[1] appeals from the trial court’s order denying his motion to terminate his spousal support obligation to Julie Kassouf (now remarried and called Julie Wolfenberger). We conclude the trial court correctly interpreted the couple’s final dissolution judgment, containing the parties’ express stipulation spousal support would not terminate until 2020 (except for in limited circumstances not present in this case). In denying Kenneth’s motion, the court concluded Kenneth had waived his right under Family Code section 4337[2] (stating spousal support terminates by law upon supported spouse’s remarriage unless the parties have agreed otherwise in writing). We affirm the order.

Defendant Noel Marie Sauls pled guilty to count one of unlawfully possessing methamphetamine. She now challenges a condition of her probation which requires her to maintain a residence as approved by her probation officer, claiming it is unconstitutionally vague and overbroad. We disagree, concluding the provision does not violate defendant’s constitutional rights.
She also argues, and we concur, that she was wrongly sentenced to 15 days in custody as a condition of probation, and will order the probation conditions modified accordingly.

Appellant Sergio Martinez was convicted of premeditated murder, attempted premeditated murder, unlawfully possessing a firearm and street terrorism. The jury also found true several enhancement allegations, including the special circumstance allegation appellant committed the murder to further the activities of a criminal street gang. On appeal, appellant contends his attorney was ineffective for failing to object to certain evidence, and there is insufficient evidence to support the jury’s findings on the gang charges. We reject these contentions. Other than to correct two undisputed sentencing errors, we affirm the judgment in all respects.

Tiffany P. is the mother of four children: James, age 5; Hailey, age 4; Daniel, age 2; and Aubrey, age 1. This is the second appeal involving the three older children; the youngest child was born after the latest disposition order and is not a subject of this appeal. In mother’s first appeal, we affirmed the order of jurisdiction, but reversed the disposition order, finding that there was insufficient evidence to demonstrate by clear and convincing evidence that a substantial risk of harm existed at the time of hearing that could not be mitigated by family maintenance service and close supervision by child welfare staff. (In re James P., et al. (Nov. 14, 2011, F061732 [nonpub. opn.].)[1] On remittitur, James and Hailey were returned to mother’s full-time custody. The youngest child, Daniel, was placed with his father and allowed extended visits in mother’s home.
Approximately one month later, the children were again removed and the Stanislaus County Community Services Agency (the Agency) filed a Welfare and Institutions Code section 387[2] supplemental petition. The juvenile court found the allegations of the petition to be true and removed James from mother’s custody; Hailey was allowed to remain in mother’s custody with family maintenance services; and Daniel was to remain in his father’s custody, but continued as a dependent of the court.
Mother contends on appeal that there was no substantial evidence to support the juvenile court’s findings and orders of May 11, 2012, by which the court sustained the section 387 supplemental petition and ordered removal of James from mother’s physical custody. Mother also claims the Agency failed to provide reasonable reunification services and that the Agency violated mother’s due process and equal protection rights. We disagree and affirm.

Appellant/defendant Donte Darnell McDonald pleaded guilty to failing to provide true registration information (Pen. Code,[1] § 290.015, subd. (a)), and admitted one prior strike conviction (§ 667, subds. (b)-(i)). He was sentenced to a second strike term of 32 months. On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.

A jury found appellant Sidney Maiden guilty of carjacking (Pen. Code, § 215, subd. (a)),[1] assault with a firearm (§ 245, subd. (b)), attempted carjacking (§§ 664/215, subd. (a)), attempted first degree robbery (§ 664/212.5, subd. (b)), second degree robbery (§ 212.5, subd. (c)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)). True findings were returned with respect to gang-related enhancements (§186.22, subd. (b)(1)) and allegations of firearm use (§§ 12022.5, subd (a), 12022.53(b), (e)(1).) Maiden was sentenced to 25 years to life in prison.
Three issues are raised in this appeal, none of which have merit. A challenge is made as to the sufficiency of evidence in support of Maiden’s convictions for attempted first degree robbery, second degree robbery, and three counts of assault with a firearm. There are also allegations of prosecutorial misconduct. Finally, Maiden claims section 186.22, subdivision (a), is unconstitutional under the void for vagueness doctrine. We affirm the judgment.