CA Unpub Decisions

Defendant Kevin Lee Redmond appeals from the judgment entered following retrial of a prior prison term enhancement allegation and resentencing. Defendant contends the trial court improperly imposed the prior prison term enhancement twice and erred in its recalculation of his credits. We agree that the trial court erroneously awarded defendant conduct credits for the time he spent in prison prior to his resentencing, but otherwise affirm.

Plaintiff Nickolaus Kopp appeals the dismissal of his action against defendant Coast Unified School District (District) for inverse condemnation, damages and injunctive relief after his lawyer missed a pleading amendment deadline following the sustaining of a demurrer. We conclude, among other things, that: 1) the trial court erred by sustaining a demurrer to Kopp's causes of action on the ground that Kopp did not join a co-owner as a necessary party, and 2) Kopp's motion to set aside the dismissal should have been granted because it was based on his counsel's declaration showing his error in determining a pleading deadline. We reverse.

We affirm appellant Romaualdo Aguilar Cortes’s conviction for voluntary manslaughter and modify his conduct credits. On appeal, appellant argues the information charging him with murder should have been dismissed because he previously was “convicted of murder in a Mexican court, and served time.” Appellant’s argument lacks merit because insufficient evidence supports his statement that he suffered a conviction in Mexico based on the same conduct underlying his California conviction. Appellant failed to provide a judgment or minute order indicating he was convicted of any offense in Mexico and therefore failed to satisfy his burden of demonstrating a foreign conviction. We affirm.

Douglas Ray Flaata appeals a judgment entered following his nolo contendere plea to one count of elder abuse, with an admission that his victim suffered great bodily injury. (Pen. Code, § 368, subd. (b)(1), (2).)[1] We conclude that the trial court properly awarded Flaata only 15 percent presentence conduct credit, and affirm. (§§ 2933.1, 667.5, subd. (c)(8).)

A jury convicted Hector Galvez of corporal injury to a spouse, felony child abuse, criminal threats, and assault by means likely to cause great bodily injury. Galvez appeals, arguing that there was insufficient evidence to convict him of felony child abuse. We affirm.

Here a jury found defendant breached a contract to provide a Federal Aviation Administration (FAA) airworthiness certificate for an airplane defendant sold to plaintiff. We affirm.

In his habeas corpus petition, petitioner Dale S. Rodabaugh raises several challenges to his convictions and sentencing in People v. Rodabaugh (Super. Ct. L.A. County, 1999, No. 021193) and the direct appeal of that case to this court. (People v. Rodabaugh (Sept. 11, 2000, B135546) [nonpub. opn.].) We directed respondent to show cause on the limited issue of the enhancements ordered by the trial court under Penal Code section 12022, subdivision (b).[1]
Petitioner contends that imposition of two 2-year enhancements for personal use of a deadly weapon on separate counts of second degree robbery (§ 211) was unauthorized. He argues section 12022, subdivision (b), authorizes two-year enhancements only when the defendant is convicted of carjacking or attempted carjacking. Respondent concedes the two-year enhancements were unauthorized. We conclude the two enhancements should each be reduced from two years to one year in accordance with section 12022, subdivision (b). Habeas relief as to the remaining issues is denied.

Appellant Gaetano Salvo rented a garage on property purchased by Pamela K. Jones. Without obtaining a writ of possession, Jones obtained a restraining order ordering Salvo to not harass Jones and to stay 100 yards away from Jones, her home, workplace, and vehicle, which dispossessed Salvo of possession of the garage. On appeal, Salvo contends that the trial court erred in issuing the restraining order because Jones failed to obtain a writ of possession after the court entered a judgment in her favor on an unlawful detainer complaint against him. We agree and reverse the order.

Appellant Ralph Nicholas Canete appeals from a jury verdict finding him guilty of robbery and access card theft in violation of Penal Code sections 211 and 484e, subdivision (d), respectively.[1] Appellant contends the trial court erred in finding that section 667, subdivision (c)(6) mandated consecutive sentencing for the felony convictions because the two acts were committed on the same occasion and arose from the same set of operative facts. We vacated submission and requested supplemental letter briefing on whether sentencing for the charge under section 484e, subdivision (d), was precluded by section 654, regardless of whether it is imposed concurrently or consecutively. We conclude sentencing on both charges is precluded by section 654. We reverse as to sentencing and otherwise affirm.

Appellant David Michael Hunt (Hunt), proceeding in propria persona, appeals from the issuance of a domestic violence restraining order against him after a contested hearing. He contends the trial court erred in granting respondent Serghei Arhip’s (Arhip) request for the restraining order because the trial court: (1) relied on conduct that does not legally constitute “abuse”; (2) considered evidence not properly filed or served on Hunt; (3) violated his right to equal protection of the law by holding him to a higher standard of evidence than that applied to Arhip; and (4) abused its discretion by imposing a restraining order that was overly restrictive.
Arhip has failed to file a respondent’s brief. Having considered the record below and the arguments raised by Hunt on appeal, we affirm the order.

Thomas Marshon Stine was tried by jury before the Honorable Barbara J. Mallach on a felony count of possessing marijuana for sale (Health & Saf. Code, § 11359).[1] The jury found Stine guilty, apparently rejecting his medical marijuana defense offered under the Compassionate Use Act of 1996 (CUA) (§ 11362.5). At sentencing, Judge Mallach suspended imposition of sentence and admitted him to three years probation with a six-month jail term condition and, over defense objection, a condition that he abstain from use and possession of controlled substances, including marijuana.
Stine did not appeal that judgment of August 23, 2011, but later requested modification to allow his medical use of marijuana. Judge Mallach heard the matter on October 28, 2011, and denied the request. Stine filed a notice of appeal on November 14, incorrectly indicating that he challenged a plea-based judgment, but clearly and timely identifying the modification denial of October 28 as the challenged order.
Stine’s appellate counsel filed a Wende brief raising no issues and seeking our independent review (People v. Wende (1979) 25 Cal.3d 436), and this court, after a preliminary review, ordered the parties to brief whether denial of the modification request was an abuse of discretion. Having now considered that briefing, plus supplemental briefing on the effect of our intervening decision in People v. Leal (2012) 210 Cal.App.4th 829 (Leal), we find no abuse of discretion and affirm the denial.

In March 2011, defendant Francisco Javier Lomas pleaded no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)),[1] and possession for sale of methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a prior conviction involving a controlled substance (Health & Saf. Code, § 11370.2), and that he had two prior strikes (former §§ 667, subds. (b)-(i), 1170.12). In August 2011, after the trial court struck one of defendant’s two strikes, the court sentenced him to 12 years four months in prison. The court granted defendant 804 days of custody credits, consisting of 536 actual days plus 268 days conduct credit under section 4019.
On appeal, defendant contends that he is entitled to additional conduct credit under the October 2011 version of section 4019. For reasons that we will explain, we conclude that defendant is not entitled to additional conduct credit.

In 2009, this court affirmed an October 22, 2008 order committing Denis Keith Rotroff to an indeterminate term as a sexually violent predator ("SVP"). (See Welf. & Inst. Code, § 6600 et seq.)[1] After Rotroff petitioned for review, the Supreme Court granted review and subsequently, following its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee), transferred the matter to this court. The Supreme Court directed this court to vacate our decision and to reconsider the cause in light of McKee. The court's order further provided: "In order to avoid an unnecessary multiplicity of proceedings, the court is additionally directed to suspend further proceedings pending finality of the proceedings on remand in McKee . . . . 'Finality of the proceedings' shall include the finality of any subsequent appeal and any proceedings in this court."
Following trial on remand and appeal, the Fourth District, Division One, issued People v. McKee (2012) 207 Cal.App.4th 1325 ("McKee II"). The Supreme Court denied McKee's petition for review (review den. Oct. 10, 2012, S204503). The McKee case on remand is now final. Accordingly, we now reconsider this case in light of the Supreme Court's McKee decision.
We conclude that appellant Rotroff's claims lack merit.

An amended petition charged Israel M., who was then 17 years old, with two counts of vehicular manslaughter with gross negligence while intoxicated (Pen. Code, § 191.5, subd. (a)) and two counts of driving with a blood alcohol content of .08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b)). It also alleged he caused bodily injury or death to more than one victim (Veh. Code, § 23558) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)).
Minor admitted all of the crimes and enhancements. At the disposition hearing the juvenile court declared minor to be a ward of the court (Welf. & Inst. Code, § 602)[1] and committed him to the “care, custody and control of the Orange County probation officer [sic] for commitment to juvenile hall or appropriate facility for 1095 days . . . .”
Minor challenges the determinate nature and the length of his commitment. We modify the disposition order to state a maximum term rather than a fixed term of confinement, and affirm the disposition order in all other respects.