CA Unpub Decisions

A jury found Robert Joseph Jackson[1] guilty of residential burglary and robbery. The court found true that he had five prison priors, four serious felony priors, and four strike priors and sentenced him to 46 years to life in prison. Jackson appeals, contending (1) there was insufficient evidence to support his convictions, and (2) his sentence constitutes cruel and unusual punishment. We reject Jackson's contentions and affirm the judgment.

Matthew Margolin appeals an order denying his motion to certify a class of purchasers of a dietary supplement called "NO Shotgun" in a false advertising action against its manufacturer, Vital Pharmaceuticals, Inc. (Vital). Margolin alleged that Vital falsely stated on product labels and its Web site that NO Shotgun contained an esterified form of creatine that was more effective than the monohydrate form at building muscle, increased muscle cell DNA, and induced formation of new muscle cells ("hyperplasia"). The trial court ruled Margolin had not presented sufficient evidence to establish several of the procedural requirements for certification of the proposed class. We affirm.

Theodore Swain appeals from a posttrial order in which the trial court confirmed the terms of an order appointing a receiver, authorizing the receiver's second distribution to victims of Swain's crimes, approving the receiver's fourth report and accounting, and approving the receiver's fee application. Swain contends that because he was not personally present at the hearing on the challenged order, the order should be reversed and we should remand the matter for a new hearing. We conclude that Swain's contention is without merit, and we affirm the order.

E.T. and C.T. were married until March 2010, and have two children—S.T., born in 1996, and T.T., born in 2002.[1] In September 2010, E.T. filed a request for a domestic violence prevention restraining order against C.T.[2] In a responsive declaration, C.T. denied E.T.'s allegations of recent abuse and stated that E.T. was permitting S.T. to live in Australia without his permission. At a November 2010 hearing on E.T.'s request, E.T.'s counsel acknowledged that S.T. had been living in Australia since June of 2010, but claimed that C.T. had given his written consent for S.T. to do so. In response, C.T. acknowledged that he had given his consent for S.T. to take a vacation in Australia, but insisted that he had not given his consent for S.T. to "go to school or to live" there.[3] The trial court stated that its "perception of the credibility" of the parties in connection with respect to E.T.'s request for a restraining order would be "substantially influenced by whether or not [C.T.] gave his permission for S.T. to live in Australia." The court continued the hearing on E.T.'s request for a restraining order, and directed E.T. to provide the court with evidence of C.T.'s "authorization for [S.T.] to live in Australia."
E.T. subsequently lodged with the court a document that reflected C.T.'s consent for S.T. to "travel[]" to Australia. At the continued hearing, E.T.'s counsel argued that at the November hearing, C.T. had denied having given permission for S.T. to "go to Australia." E.T.'s counsel further argued that E.T. had produced evidence demonstrating that C.T. had not been truthful in claiming that he had not given permission for S.T. to live in Australia, a fact that counsel contended "should certainly weigh against [C.T.'s] credibility." C.T. responded that he had never denied having granted permission for S.T. to travel to Australia, and stated that the dispute at the prior hearing had centered on whether he had granted permission for S.T. to live in Australia. The trial court stated that it could not "recall the finite details" of the November hearing, but added that it would draw "inferences adverse to [C.T.'s] credibility," and would grant E.T.'s request for a restraining order.
On appeal, C.T. claims that the trial court erred in granting E.T.'s request for a restraining order. C.T. argues that the court based its ruling on the mistaken belief that C.T. had denied having granted permission for S.T. to visit Australia, when, in fact, the parties' dispute at the November 2010 hearing centered on whether C.T. had granted permission for S.T. to live in Australia. C.T. also maintains that the trial court had ordered E.T. to present evidence that C.T. had granted permission for S.T. to live in Australia, and that E.T. failed to present such evidence.[4]
We agree with C.T. that the record unambiguously demonstrates that the trial court granted E.T.'s request for a restraining order based on a material misunderstanding of the facts in the case. We reverse the order granting E.T. a permanent restraining order and remand for further proceedings.

In this dispute between siblings, the trial court found the plaintiff lacked standing to assert claims on behalf of her deceased mother. We agree and affirm the trial court's order dismissing the plaintiff's claims.

Defendant Miguel Medina pleaded guilty to assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[1] Great bodily injury (§ 12022.7, subd. (a)) and gang (§ 186.22, subd. (b)(1)) enhancements were dismissed with a Harvey waiver.[2]
Defendant was placed on three years’ formal probation, subject to various conditions including that he not associate with known gang members or persons known to be associated with a gang. Defendant was also required to register as a gang member.
The trial court later revoked probation following a contested hearing at which it found defendant violated the gang association condition. The trial court sentenced defendant to three years in state prison.
On appeal, defendant contends the probation condition prohibiting him from associating with any individual associated with a gang is unconstitutionally vague. He also contends there is insufficient evidence to support the trial court’s finding that he violated this condition. We affirm.

Defendant and Siama Rivera were arrested in a sting operation after a team of Sacramento police officers investigating child prostitution saw an ad on Craigslist for a 14-year-old girl (Kimberly J.) they had previously encountered in a prostitution sting. As a result of evidence uncovered at the hotel room where the sting took place, evidence uncovered in defendant’s car, and of Kimberly J.’s preliminary hearing testimony and statements to officers, defendant was convicted of pimping a minor (count 1), pandering a minor (count 2), photographing a minor involving sexual conduct (count 3), possession of child pornography (count 5), intercourse with a minor age 14 or younger (count 6), lewd act (sexual intercourse) with a minor age 14 or younger (count 7), providing marijuana to a minor (count 8), lewd act (oral copulation) with a minor age 14 or younger (count 9), and lewd act (digital penetration) with a minor age 14 or younger (count 10). The trial court sentenced defendant to a prison term of 19 years 4 months.

In April 2007 a jury found defendant Glenn Arthur Johndrow was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA; Welf. and Inst. Code, § 6600 et seq.), and the court committed him to the Department of Mental Health (DMH) for an indeterminate term.[1]
Defendant appealed, contending that (1) he had a due process right to testify over his counsel’s objection, and (2) recent amendments to the SVPA permitting indeterminate commitments were unconstitutional pursuant to principles of federal and state due process and equal protection.
In July 2009 we filed our opinion rejecting defendant’s contentions and affirming the commitment.

Chicago Title Insurance Company, Chicago Title Company, Michael Salazar, and Elena Hernandez appeal from the judgment entered in favor of respondent Bruce Logan, after jury trial, on Logan's complaint. We affirm.

Defendant Priest Rogelio Martinez appeals a judgment entered after he pleaded no contest to kidnapping and robbery. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been informed of his right to personally file a supplemental brief, but he has not done so.
Defendant and two co-defendants, Anthony Scott Cape and James Paul Miller, were charged with kidnapping to commit robbery (Pen. Code,[1] § 209, subd. (b)(1)) (count one); kidnapping (§ 207) (count two); robbery (§ 211) (count three); assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (counts four & five); and battery with great bodily injury (§ 243, subd. (d)) (count six). As to counts one, two, three, four, and five, the complaint alleged defendant personally inflicted great bodily injury on the victim, Travis Tonne. (§ 12022.7, subd. (a).) The complaint also alleged additional enhancement and strike allegations against defendant, including a prior prison term. (§ 667.5.)

Defendant appeals from pleas of no contest pursuant to California Rules of Court, rule 8.304(b). His request for a certificate of probable cause was denied by the trial court on September 18, 2012.
Appellant was charged in an information with battery on a peace officer (Pen. Code, § 243, subd. (c)(2)), resisting an officer (Pen. Code, § 69), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor crime of giving a false name to a policeman (Pen. Code, § 148.9, subd. (a)). The information alleged a great bodily injury enhancement pursuant to Penal Code section 12022.7, subdivision (a) regarding the battery and resisting counts. On June 14, 2012, the possession of methamphetamine charge in count III was reduced to a misdemeanor, and appellant entered no contest pleas to all counts, and admitted the enhancements under Penal Code section 12022.7.
On July 27, 2012, appellant was sentenced to five years in state prison, consisting of a two-year midterm sentence on the battery charge in count I, with a consecutive three-year term for the 12022.7 enhancement. The terms for the resisting offense in count II and its enhancement were stayed pursuant to Penal Code section 654. A six-month concurrent term was imposed on the misdemeanor possession offense as well as the false identification charge.
Appellant filed his notice of appeal on September 14, 2012. His request for a certificate of probable cause was denied.

S.T. (Minor) appeals a dispositional order committing him to juvenile hall. (Welf. & Inst. Code,[1] § 602.) We shall modify the order to remove a reference to “any other penal institution,” and to award Minor predisposition custody credits. As so modified, we shall affirm the order.

George Vickers admitted that he was a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a)(1)[1]; current § 29800, subd. (a)(1)), with a prior felony attempted theft conviction (§§ 664, 487). Vickers does not challenge his plea or the prison sentence imposed. His sole contention on appeal is that the trial court imposed $80 too much in fines. Vickers’s arguments border on the frivolous, and we affirm.

Appellant Larry Lee Russell, Jr. was convicted by jury of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The trial court found that Russell had been convicted of the same crime on three prior occasions (Health & Saf. Code, § 11370.2) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).[1] Russell was sentenced to a 10-year term, the first eight years to be served in county jail and the remaining two years to be served on supervised community release. Russell argues that the trial court erred in admitting evidence of two prior convictions, failing to strike certain sentence enhancements, and ordering payment of attorney, drug program, and criminal assessment fees. We conclude that the attorney fees order must be reversed and that the judgment must be modified, but we otherwise affirm.