CA Unpub Decisions

After plaintiff William J. Brainard filed the present action against defendants Bryan Willmon and Carol Willmon, defendants responded by moving to have plaintiff declared a vexatious litigant and to require the deposit of security. The trial court granted defendants’ motion pursuant to Code of Civil Procedure[1] sections 391 to 391.7, and when plaintiff failed to furnish security as ordered, the action was dismissed.[2] Plaintiff appeals, contending the trial court abused its discretion. We will affirm.

Appellant Chad Marshall appeals from the judgment entered following his no contest plea to possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and admission of a prior strike conviction. (Pen. Code, § 667, subd. (c)-(j)).[1] In exchange for his plea, the People agreed to dismiss additional charges and enhancements and the court indicated it would impose a four-year term, the two-year midterm doubled.[2] At sentencing, appellant requested a continuance to collect character reference letters. The court denied the request noting, “This is low term two years doubled for four. It’s not going to get any better than that.” On appeal, Marshall contends the court erred in denying him the opportunity to argue for a lesser sentence because the indicated term was the middle term. He submits the court was unaware of its discretion to impose a lower term than the indicated term. The People respond that the “indicated term” in this case was part of the plea bargain and binding on the court once it approved the plea agreement. As such, there was no good cause for a continuance to further consider the matter of sentencing. We affirm.
FACTS and PROCEDURAL HISTORY
The police responded to an anonymous citizen complaint of an individual selling drugs in an alley in Bakersfield. Investigating officers found Marshall, who matched the description of the seller, nearby. Officers searched Marshall and found methamphetamine, lorazepam pills, heroin, marijuana, and drug paraphernalia.
Marshall was charged with seven felony and misdemeanor offenses, five prior prison term enhancements (§ 667.5, subd. (b)), and a prior strike conviction. Eventually, he agreed to a prosecution offer to plead no contest to possession of heroin and to admit his prior strike conviction in exchange for “a Court-indicated four years,” “Mid term two plus—or times two for four.”
At sentencing, the court denied Marshall’s request for a continuance so his family could collect character reference letters. The court noted, “This is low term two years doubled for four. It’s not going to get any better than that.”

Appellant/defendant George Joseph Garcia fatally shot Miguel Rodriguez in the back. Defendant was initially charged with murder (Pen. Code,[1] § 187, subd. (a)), with firearm allegations (§ 12022.53, subds. (c) & (d); § 12022.53, subd. (b)), and a gang enhancement (§ 186.22, subd. (b)(1)(C)). He entered into a negotiated disposition and pleaded no contest to both voluntary manslaughter (§ 192, subd. (a)) and the gang enhancement. During the plea proceeding, he was advised that he would be subject to a gang registration order as part of the negotiated disposition. Defendant filed a notice of appeal and challenged the court’s order for restitution to the decedent’s estate for the medical expenses incurred during the unsuccessful treatment for the fatal gunshot wound. Defendant also raised constitutional challenges to the court’s gang registration order, but he did not request or obtain a certificate of probable cause.
We will find that defendant’s failure to obtain a certificate of probable cause bars review of his challenges to the gang registration order. We will modify the victim restitution order and otherwise affirm.

A jury convicted defendant Fred Brame of possession of a firearm by a felon (former Pen Code, § 12021, subd. (a)(1)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)).[1] With respect to the firearm offense, the jury found true a gang-enhancement allegation. In bifurcated proceedings, the trial court found true allegations that Brame had suffered prior felony convictions and served prior prison terms.
Brame contends that his trial counsel provided ineffective assistance by failing to file a pretrial motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) seeking discovery of police personnel files. After trial, new counsel filed a Pitchess motion, which the trial court granted, and relevant records were disclosed. Following the Pitchess motion, Brame’s new counsel filed a motion for new trial on the ground that Brame received ineffective assistance of counsel at trial. The motion was denied.
In this appeal, Brame contends that the trial court abused its discretion by denying the motion for new trial. He also asks that we review the police personnel records filed under seal, which the trial court reviewed in camera after granting the Pitchess motion. Brame further contends there was insufficient evidence to support either his conviction for the substantive offense of active gang participation or the true finding with respect to the gang-enhancement allegation. Finally, Brame raises two challenges related to his sentence. We affirm.

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Defendant Darshae Dews was convicted of second degree murder in the stabbing death of Arthur Lopez. On appeal, Dews contends that the trial court erred by excluding from evidence statements he made to detectives after he was arrested; he argues the statements were admissible to show his state of mind and to establish the basis for his expert witness’s opinion. In addition, Dews contends that the trial court erred by imposing a probation report fee because there was insufficient evidence of his ability to pay.
We affirm the judgment.

On November 4, 2011, a felony complaint charged defendant and appellant Ralph Orantes, Jr., with violations of Penal Code[1] section 269, subdivision (a)(1) for rape of a child under the age of 14 years and seven or more years younger than the defendant (counts 1 & 2); and section 288, subdivision (b)(1) for lewd and lascivious acts upon a minor under the age of 14 years (counts 3‑12). Defendant pled not guilty.
On May 8, 2012, defendant withdrew his not guilty plea and entered into a negotiated settlement whereby he pled guilty to counts 3 through 7. As a condition of the plea, the parties agreed that the remaining counts would be dismissed and that defendant would receive a determinate term of 40 years in state prison (upper term on all counts, full and consecutive). Defendant waived his right to appeal.
On July 11, 2012, the parties appeared for sentencing. Defendant indicated that he wished to withdraw his guilty plea, so the case was sent to another courtroom for a hearing under People v. Marsden (1970) 2 Cal.3d 118. Following the hearing, the court denied the Marsden motion.
Thereafter, defendant returned to the sentencing court. The trial court sentenced defendant pursuant to the agreed-upon term of 40 years. Defendant was awarded 253 days of actual credit, plus 37 days of credit under section 2933.1, for a total of 290 days. The court then imposed a restitution fine and various fees.
On July 11, 2012, a timely notice of appeal was filed. Defendant did not request a certificate of probable cause.

Defendant and appellant Christina Darlene Johnson was charged by information with attempted murder (Pen. Code, §§ 664/187, count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 2 & 3), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 4), and writing multiple checks with insufficient funds (Pen. Code, § 476a, subd. (a), count 5). As to counts 1 and 2, the information alleged that defendant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a).[1] Pursuant to a plea agreement, defendant pled no contest to counts 2 and 4, in exchange for a three-year state prison term and the dismissal of the remaining counts and allegations. The court sentenced her to three years in prison, awarded a total of 210 days of presentence custody credits, and ordered her to pay victim restitution.
Defendant filed a timely notice of appeal, based on the sentence or other matters occurring after the plea. She also challenged the validity of her plea and requested a certificate of probable cause, which the trial court denied. We affirm.

Defendant and appellant M.H. (mother) appeals from the juvenile court’s order under Welfare and Institutions Code section 366.26[1] terminating her parental rights to her daughters, then 15-year-old S.H., and then 18-month-old R.T. Mother raises two claims of error. First, she contends, because she had just entered a residential treatment program to address her drug dependency, and therefore was working on her reunification plan, the juvenile court erred when it terminated her reunification services at the 12-month review hearing. Next, mother contends the juvenile court abused its discretion when it denied her section 388 petition. We disagree with both claims and therefore will affirm.

On August 18, 2011, the family law court dismissed this entire family law action, finding it had lost jurisdiction over the case.
Riverside County Department of Child Support Services (the Department), the party opposing dismissal, appeals, contending that the family law court retained jurisdiction to make support orders.[1]

Plaintiff and appellant Justin Prock appeals a judgment entered after the trial court granted Tamura Corporation of America’s (hereafter Tamura) motion for summary judgment. We conclude that Tamura failed to make a prima facie showing that Prock could not prevail. Accordingly, we will reverse the judgment.

Defendant Shawn W. Manson was convicted after jury trial of two counts of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)),[1] and one count of forcible lewd acts on a child (§ 288, subd. (b)(1)). The jury further found that defendant committed a sexual offense against more than one victim within the meaning of section 667.61. The jury was unable to reach a verdict on two counts of aggravated sexual assault of a child under 14 (§ 269) and one count of forcible lewd acts on a child (§ 288, subd. (b)(1)), and the court later dismissed those counts upon the People’s motion. The jury found defendant not guilty of one count of aggravated sexual assault of a child under 14 and one count of lewd acts on a child under 14. The trial court sentenced defendant to three consecutive terms of 15 years to life.
On appeal, defendant contends that the evidence was insufficient to support the conviction on count 4, the forcible-lewd-acts count involving the victim Stephanie Doe. He further contends that the court prejudicially erred in admitting testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). We disagree with defendant’s contentions, and will therefore affirm the judgment.

Defendant Diondre Leon Rodriguez appeals a judgment entered following his plea of no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)),[1] and petty theft with specified prior convictions (§§ 666/484, subd. (a)) in two separate cases consolidated for the purpose of appeal. On appeal, defendant asserts he is entitled to additional pre-sentence conduct credits pursuant to the post-conviction amendments to section 4019.

Michael Camerlingo appeals from the family court’s order directing him to appear at a judgment debtor examination scheduled by his former wife, Marie,[1] several years after entry of their divorce judgment, which expressly waived spousal support. After the divorce, Michael and Marie entered into an agreement purporting to modify the no-support provision of the divorce decree, and the former couple filed the agreement with the family court as an order modifying their divorce judgment. But Michael later obtained a final ruling from the family court, which Marie did not appeal, that it had no jurisdiction over support and therefore could not compel Michael to adhere to the agreement, which the court found did not constitute a valid order modifying the divorce decree’s no-support provision. A different judge nevertheless ordered Michael to appear at the debtor exam based on the conclusion the agreement constituted a valid support order. Michael is correct that collateral estoppel bars this result, though Marie may have other avenues to enforce their agreement. As we explain below, we exercise our discretion to treat Michael’s appeal as a writ petition, and we grant the petition and reverse the trial court’s order for Michael to appear at the debtor examination.

Defendant Theresa Ann Jones challenges her conviction for possession of a controlled substance, cocaine. She contends the court wrongly denied her motion to suppress the cocaine. The Attorney General concedes the error. We reverse.