CA Unpub Decisions

This appeal raises the question of whether a judge may impose a restitution fine greater than the statutory minimum without providing the defendant with a jury trial on the factors which guide the exercise of judicial discretion. In short, this appeal is about the difference between the $240 minimum restitution fine and the $480 fine imposed under a statute authorizing a maximum restitution fine of $10,000. Consistent with existing case law we will determine that, following an appropriate conviction, a trial judge may exercise discretion in setting the fine in any amount that does not exceed the statutory maximum.
A jury convicted Robert Luna Estrada of one count of battery of a police officer (Pen. Code,[1] § 243, subd. (c)(2)) and one count of felony resisting arrest (§ 69).
Estrada admitted four prison priors (§ 667.5, subd. (b)) and one strike prior (§ 667, subds. (b)-(i)). At sentencing, the court struck one of the prison priors and imposed a determinate term of seven years in prison. The court imposed a $480 restitution fine (§ 1202.4, subd. (b)).
Estrada filed a timely notice of appeal.
Estrada contends the imposition of a restitution fine in excess of $240 violates the Sixth Amendment as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Southern Union Co. v. United States (2012) ___ U.S. ___ [132 S.Ct. 2344, 183 L.Ed.2d 318] (Southern Union). In a related contention Estrada argues his counsel was ineffective for failing to object to the amount of the restitution fine. Estrada also requests this court to review the in camera proceedings related to his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We find the contentions regarding the restitution fine to be wholly without merit. Our review of the transcript of the in camera proceeding revealed no error by the trial court. Accordingly, we will affirm the judgment.[2]

A jury convicted Jesus Manuel Roa of unlawful sexual intercourse with a child under the age of ten (Pen. Code, § 288.7, subd. (a)),[1] forcible lewd acts with a child under the age of 14 (§ 288, subd. (b)(1)), and lewd acts with a child under the age of 14 (§ 288, subd. (a)). The jury found that Roa had engaged in substantial sexual contact with the victim, A.A., within the meaning of section 1203.066, subdivision (a)(8). Following his conviction, the court sentenced Roa to prison for an indeterminate term of 25 years to life, plus a consecutive determinate term of 16 years.
Roa appeals, contending that the court erred in admitting expert testimony relating to the behavior of child abuse victims, often called "child sexual abuse accommodation syndrome" or "CSAAS" evidence (CSAAS). He further contends that the court's limiting instruction on CSAAS evidence, CALCRIM No. 1193, was erroneous even if such evidence was properly admitted. We affirm the judgment.

Betsy E. Moore (Betsy Moore), trustee under the Betsy Elizabeth Moore Trust, appeals a judgment dismissing her amended complaint against ReconTrust Company, N.A. (ReconTrust) (erroneously sued as Reconstruct Company, RA) and Bank of America, N.A. (successor by merger to BAC Home Loans Servicing, LP, erroneously sued as BAC Home Loans Servicing, LP) (collectively defendants) after the trial court sustained defendants' demurrer without leave to amend. Betsy Moore contends: (1) the court erred in sustaining the demurrer because, she argues, the amended complaint states a cause of action for a declaratory judgment; and (2) the court abused its discretion in sustaining the demurrer without leave to amend. We disagree. The court did not err in sustaining the unopposed demurrer without leave to amend because the requests for declaratory judgment regarding the formation of the deed of trust are barred by the statute of limitations and because the deed of trust is enforceable by its terms. Betsy Moore has not met her burden of showing the defects in the complaint can be cured. Therefore, we affirm.

The trial court entered a judgment denying a motion filed by Norman Paul Breen (Husband) to reduce the amount of spousal support payable to his former wife Deberah L. Breen (Wife) and a subsequent order granting in part Husband's motion to reduce the amount of spousal support payable to Wife. The court also awarded Wife attorney fees incurred in defending those motions. Husband appeals, contending the court abused its discretion in: (1) determining his current income; (2) setting spousal support at an amount greater than his current income allowed; and (3) awarding Wife attorney fees based on its erroneous determinations of his current income and without considering the effect of Wife's bankruptcy discharge of a debt owed her former attorney. We are not persuaded by Husband's contentions.

In this case, we consider whether the trial court properly determined that it lacked personal jurisdiction over four cross-defendants, Henry Morris, George Hall, The Clinton Group, and David Loglisci (collectively respondents), with respect to several tort claims brought against them by appellant Pacific Corporate Group Holdings, LLC (PCGH). We conclude that the trial court properly determined that it lacked personal jurisdiction over respondents. Accordingly, we affirm the court's orders granting respondents' motions to quash for lack of personal jurisdiction.

Appointed counsel for defendant Kenneth Duane Tocher asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

On July 14, 2012, defendant Francisco Rosales got into an argument with his cohabitant, who was pregnant with his child.[1] At various points in the argument, which continued to the following day, defendant stated, “If I can’t have you, then nobody else can”; he threatened to kill the cohabitant; he said, “I might as well kill you now”; he told her, “You’re not calling the cops. You’re never going to call the cops”; and he threatened to kill her because she was worthless.
Defendant pleaded no contest to threatening to commit a crime that would result in death or great bodily injury (Pen. Code, § 422, subd. (a)) and admitted that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). In exchange, three related counts and a knife use allegation were dismissed with a Harvey waiver.[2]
Defendant was sentenced to prison for the upper term of three years plus one year for the prior conviction. He was awarded 243 days’ custody credit and 242 days’ conduct credit. Defendant was ordered to make restitution to the victim and to pay a $280 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $280 restitution fine, suspended unless parole is revoked (Pen. Code, § 1202.45); a $40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)); and a $30 court facilities assessment (Gov. Code, § 70373). Defendant’s request for a certificate of probable cause was denied.

After assaulting his mother, defendant Kendal Scott Gill pled no contest to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)[1] Sentenced to four years in prison, defendant appeals. Both of his contentions relate to fines and fees. We dispense with the recitation of facts unnecessary to the disposition of these issues.

Following the denial of defendant Darrell Oneil Okuma’s motion to suppress evidence, a jury convicted him of possession of methamphetamine. Defendant then admitted one allegation of a prior serious felony conviction and three allegations of service of a prior prison term.
The court sentenced defendant to state prison for seven years, consisting of the mid-term of two years, doubled to four because of the strike, plus an additional one year for each service of a prior prison term. The court awarded defendant 337 days of presentence custody credit, consisting of 169 days served plus 168 days for conduct. The court imposed restitution fines and fees as follows: $240 in accordance with Penal Code sections 1202.4 and 1202.45; a $40 court security fee (Pen. Code, § 1465.8), and a $30 conviction fee (Gov. Code, § 70373).

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
About 11:00 p.m. on March 12, 2011, chaos erupted at the Strikes Bowling Alley. Hundreds of people were screaming and trying to exit the building. Officers arrived and ordered everyone to the ground. An investigation revealed that 20-year-old Antion Taylor was beaten by a group of men that included defendant Sou Vanh Thao, who was observed by witnesses and on video surveillance tape hitting the victim twice with a bowling ball. Taylor suffered many injuries and was transported to the hospital. At trial, defendant admitted that he assaulted the victim with bowling balls but claimed he did so in self-defense or in defense of others.
A jury convicted defendant of assault with a deadly weapon, to wit, a bowling ball (Pen. Code, § 245, subd. (a)(1); count one) and misdemeanor battery (Pen. Code, § 242) as a lesser offense to that charged in count two (battery with serious bodily injury (Pen. Code, § 243, subd. (d)). In connection with count one, the jury did not sustain the great bodily injury allegation.

Accused of aiding and abetting his putative stepfather’s shooting of a Crip gang member, defense counsel argued that not every criminal act by a gang member is gang related, and defendant Darrell Miller had no idea that his stepfather was going to fire at three people walking down the street. The jury did not find him guilty of the alleged gang enhancement, although he, his stepfather, and his good friend, who was also an occupant of the car at the time of the shooting, were all validated members of Blood gangs. On appeal, he contends there is insufficient evidence to support his conviction for second degree murder, and his booking and classification fees must be reversed. We disagree with both contentions and affirm the judgment.

This case stands for the simple proposition that it is not an abuse of discretion to deny an equitable easement to landowners who purchased landlocked property knowing they did not have legal access to the land and who had been told they needed to secure an easement before purchasing the property. We reject plaintiffs Josh and Julie Lyman’s distortion of the standard of review as well as their misreading of the leading authority on equitable easements and affirm the judgment, rejecting their attempt to quiet title to an easement over property owned by defendants Plymouth Empire Properties, Inc. (PEP), and the Ione Band of Miwok Indians (the Tribe). However, we must reverse the judgment insofar as it awards $100 in damages to PEP for trespass because we conclude there is insufficient evidence to support the finding.

Plaintiffs Adam Brown and Dennis Castrillo each obtained a civil harassment restraining order against their neighbor, defendant John Evpak. (Code. Civ. Proc., § 527.6.) In this pro se judgment roll appeal from the restraining orders, defendant claims he did not consent to a temporary judge hearing the matter; his conduct did not violate the statutory prohibitions on harassment; and substantial evidence does not support the trial court’s issuance of the orders. Defendant also contends the restraining orders infringe on his constitutionally protected conduct, effectively “take” his private property, and are constitutionally overbroad because they restrain his conduct as to plaintiffs’ guests.
By separate motion, plaintiffs ask that we dismiss the appeal as frivolous, and impose sanctions on defendant for bringing a frivolous appeal.

Jorge Jesus Olmos appeals from an order of the trial court denying his motion to correct his custody credits pursuant to recent amendments to Penal Code section 4019.[1] We affirm the order.
Appellant was charged by information with attempted murder (§ 664/ 187, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). The information included firearm and gang allegations (§§ 12022.53, 186.22) and alleged that appellant had suffered four prior convictions (§ 667.5, subd. (b)).
Appellant entered a no contest plea to the attempted murder charge, and the court dismissed the other count. The court sentenced appellant to a term of nine years and awarded him 414 days of actual time credit and 62 days of conduct credit, for a total of 476 days of presentence credit.