CA Unpub Decisions

Accredited Surety and Casualty Company (Accredited) appeals from a judgment forfeiting the bail it posted to secure the release from custody of a criminal defendant. Accredited contends the court lacked jurisdiction to declare bail forfeited. In the alternative, Accredited contends its bond was exonerated by operation of law because federal law prevented the defendant from returning to this country and that equitable principles entitled it to have the appearance period tolled in order to extradite the defendant from Peru. Court affirm.

In this partition action, defendant Suzanne Camejo appeals from the judgment as amended by the trial court following our remand in her previous appeal. (Koefoed v. Camejo (July 30, 2007, B188429 [nonpub. opn.] (Koefoed I).) Court agree with Camejo that the trial court materially exceeded the scope of our directions on remand by awarding plaintiff, for the first time, expert witness fees and post-judgment interest and making a different allocation from the original judgment of certain credits due plaintiff.

Jeron Markeise Combs appeals from his convictions for murder and attempted murder of members of a rival street gang. Court modify the judgment to award Combs presentence custody credit and, as modified, affirm.

Plaintiffs Timothy Carda (Carda) and Ralph Wadsworth (Wadsworth) appeal from a judgment of nonsuit in favor of defendant John Amoroso (Amoroso) in a malicious prosecution action. On appeal, plaintiffs contend that the trial court erred in construing malice too narrowly. Court agree and reverse.

Defendant Bryant M. Avila appeals his convictions of one count of vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)); one count of driving under the influence causing injury (Veh. Code, 23153, subd. (a)); and one count of driving with a blood alcohol level of .08 percent causing injury (Veh. Code, 23153, subd. (b)), with true findings that defendant had a blood alcohol content of greater than .15 percent within the meaning of Vehicle Code section 23578; defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (b); and defendant proximately caused bodily injury and death to two victims (Veh. Code, 23558). He argues his counsel was ineffective for failing to object to an adoptive admission instruction given at trial. Court affirm.

Defendant Salvador Molinari appeals from the judgment entered after a jury trial. The jury found defendant guilty of continuous sexual abuse of a child (Pen. Code,[1] 288.5, subd. (a); count 1); sending harmful matter to a minor ( 288.2, subd. (a); count 2); lewd act upon a child ( 288, subd. (a); counts 4, 12); oral copulation of a person under 14 years of age ( 288a, subd. (c)(1); count 5); sodomy of a person under 14 years age with 10 years age difference ( 286, subd. (c)(1); count 6); oral copulation of a person under 16 ( 288a, subd. (b)(2); count 7); sodomy of a person under the age of 16 ( 286, subd. (b)(2); count 8); and dissuading a witness from reporting a crime ( 136.1, subd. (b)(1); count 10).[2] The trial court found true the allegations that defendant suffered three prior felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12), specifically a 1989 conviction for voluntary manslaughter and 1993 convictions for robbery and assault with a firearm. Prior to sentencing, defendant asked the court to exercise its discretion under section 1385 to strike his prior 1989 conviction for voluntary manslaughter. The trial court denied defendants request, and thereafter sentenced him to state prison for a total term of 248 years to life.

On appeal, defendant contends (1) the trial courts denial of his pretrial request for self-representation was a violation of his federal constitutional right to self-representation and is reversible per se; (2) the sex offense instructions were impermissible argumentative; (3) the trial court committed judicial misconduct in admonishing defendant in the presence of the jury; (4) the imposition of consecutive terms violated his constitutional rights to a jury trial and to due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; and (5) the trial court abused its discretion in refusing to dismiss one of his prior strike convictions. Court affirm.

Defendant F.S. Hotels (L.A.) Inc. (FS Hotels) appeals from an order denying its petition to compel arbitration of a dispute involving a former employee, plaintiff Jose I. Aguilar. The trial court found that the arbitration agreement was procedurally and substantively unconscionable. FS Hotels contends that the trial court erred in so finding. It also asserts that to the extent certain provisions of the agreement were unconscionable, the court should have severed them and enforced the remainder of the agreement. Court affirm the trial courts order.

Plaintiff Mark Slotkin appeals from a judgment of dismissal entered after a judicial referee granted defendant Diane Keiths motion for summary judgment. Court affirm.

Priscilla Debra Alonso appeals from the judgment, challenging her sentencing order, which includes as conditions of probation that she pay $254.31 in attorney fees pursuant to Penal Code Section 987.8 and a $200 assessment fee toward the cost of her drug treatment program under Penal Code Section 1210.1, subdivision (a), on the ground that the trial court did not determine her ability to pay those fees, which is required under the latter statutes. She also challenges the order that she pay $120 in court cost, because that order was not made at sentencing orally. Alonso further contends that the record is inadequate to allow a meaningful review of the courts in camera Pitchess rulings,[3]and she requests remand for a new hearing. We find the record adequate to review the trial courts in camera Pitchess rulings, and find no abuse of discretion in those rulings.
Court reverse the trial courts order that Alonso pay $254.31 in attorney fees, and reject respondents invitation to find that appellants challenge is waived under People v. Scott (1994) 9 Cal.4th 331, 348, 356 (Scott). Respondent misconceives appellants challenge, which is for sufficiency of evidence, which can never be waived, Scott notwithstanding. Where section 987.8 is grounded in a defendants constitutional right to counsel, which right is protected by the statutorily mandated ability-to-pay hearing that never occurred here, and there is literally no evidence in the record of Alonsos ability to pay, Alonso may challenge the sufficiency of evidence to support the trial courts assessment of attorney fees even though she did not object below. We similarly reverse the trial courts order to pay the $200 drug treatment fee. Because the record lacks any evidence from which to imply any ability to pay, we find no forfeiture of Alonsos substantial evidence challenge to the order to pay the drug treatment fee.

Alfonso Brown appeals from the judgment entered following his plea of no contest to second degree robbery. Brown was initially placed on probation, but, after violating his probation conditions, was sentenced to two years in prison. He contends (1) the trial court erred by imposing increased restitution and parole restitution fines after probation was revoked, and (2) the abstract of judgment must be modified to correct a clerical error and conform to the courts oral pronouncement of judgment. Court agree with both contentions.Court modify the judgment accordingly, and in all other respects affirm.

Defendant Jason Ortiz stepped out of his car after being stopped for traffic violations on March 4, 2008. Officers noticed that his car engine was still running, but there was no key in the ignition, which appeared to have been tampered with or punched. The car had been reported stolen. Defendant was arrested and convicted following a jury trial of unlawfully driving or taking a motor vehicle in violation of Vehicle Code section 10851, subdivision (a). He was sentenced to three years in state prison. On appeal, defendant contends the trial court abused its sentencing discretion, mistakenly believing it had no choice but to impose the upper term. Court affirm the judgment.

Jeeraphan Miyaguchi (Jeeraphan) appeals from the order denying her request for child custody and awarding her former spouse, Darryl Miyaguchi (Darryl), physical and legal custody of the parties children. Court affirm.

Vincent Guy Bray appeals the judgment entered after he pleaded guilty to three counts of second degree robbery (Pen. Code,[1] 211). As to count 1, appellant admitted that he personally used a firearm ( 12022.53, subd. (b)). Appellant also admitted allegations as to all counts that he had suffered a prior serious or violent felony conviction that qualified as a strike ( 667, subds. (a)(1), (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)). The trial court sentenced him to a total term of 23 years in state prison, consisting of the low term of two years on count 1, doubled as a second strike, plus 10 years for the firearm use allegation and five years for the serious or violent felony prior, plus consecutive two-year sentences (one-third the midterm doubled) on the two subordinate counts. Appellant contends the matter should be remanded for resentencing because the record reflects the court was unaware of its discretion to dismiss the prior strike allegations in the interests of justice on a count-by-count basis, as contemplated by People v. Garcia (1999) 20 Cal.4th 490, 503-504.) Court affirm.

In this action for declaratory and injunctive relief, plaintiff Tom McVeigh (McVeigh) appeals from the judgment entered in favor of defendant California Department of Justice (the Department) after the trial court determined that the so-called sweepstakes McVeigh used to promote the sale of $1 domestic long-distance telephone cards constituted a punchboard as that term is defined in Penal Code section 330c and thus violated California gaming laws. Court affirm.