CA Unpub Decisions

The Commissioner of the California Department of Corporations (Commissioner),[1] on behalf of the People of the State of California, sued Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash for injunctive relief, restitution and civil penalties, alleging they were providing short-term, payday loans over the Internet to California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe, specially appeared and moved to quash service of summons and to dismiss the complaint on the ground the lending businesses named as defendants were simply trade names used by the two tribal entities and, as wholly owned and controlled entities of their respective tribes operating on behalf of the tribes, they were protected from this state enforcement action under the doctrine of tribal sovereign immunity.
During the course of this litigation on the issue of subject matter jurisdiction, the trial court imposed $34,437.50 in discovery sanctions against the Commissioner after the court denied in substantial part her motion to compel further responses to a second set of requests for production of documents from MNE and SFS. We affirm.

J.V. (mother) seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of the juvenile court’s orders issued at a contested six-month review hearing terminating her reunification services, and setting a section 366.26 hearing for February 5, 2014, to determine a permanent plan for her one-year-old daughter, A.B. (the minor). (See Welf. & Inst. Code, § 366.21, subd. (e).)[1] Mother argues the juvenile court erred in ruling that (1) there was not a substantial probability of return of the minor within the next six months; (2) visits between mother and the child should be suspended; and (3) reasonable reunification services were provided. We deny the petition on its merits.

Richard Dunham filed a lawsuit against Sierra Process Systems, Inc. (SPS) for wrongful termination and other causes of action related to his employment with SPS. In his employment application with SPS, Dunham had agreed to arbitrate any dispute arising from his employment. SPS answered Dunham’s complaint, participated in discovery, failed to state that it was willing to participate in arbitration in its case management statement, and attended a case management conference with the court without mentioning arbitration. Only after engaging new counsel to take over its representation in this matter did SPS file a petition to compel arbitration, almost six months after Dunham had filed his complaint.
The trial court denied SPS’s petition because it found that SPS had waived its right to compel arbitration. On appeal, SPS contends that the trial court’s denial of the petition was not supported by substantial evidence. We disagree and affirm.

R.B. (mother) appeals from a jurisdictional order removing her youngest child (S.D.) from her custody. Mother frames the issue as follows: “Can a parent’s failure to acknowledge sibling [sexual] abuse [by the stepfather (her husband)] establish that a child cannot safely remain in that parent’s custody, even if the parent is willing to follow orders preventing the abuser from contacting the child?” As we will discuss, the record reflects a much more complex situation than mother’s question suggests, and given the entirety of the record before the dependency court, we conclude ample evidence supports the removal order.

A modification decision.

Petitioner S.H. (father) is the biological father of now two-year-old T.H. Father filed this petition for extraordinary writ to challenge the trial court’s orders terminating reunification services to T.H.’s mother, S.P. (mother), and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26)[1] for February 27, 2014. For the reasons stated here, we will grant the petition and stay the section 366.26 hearing until the trial court decides to grant or deny petitioner’s request for reunification services.

Defendant Steven Raymond Contreras was convicted of sexual battery (Pen. Code, § 243.4) in 1988. Due to this conviction, he is required to register as a sex offender. (Pen. Code, § 290, subd. (c).) In 2012, he failed to comply with his sex offender registration obligations. He was charged by complaint with failing to reregister as a sex offender within five days of becoming a transient (Pen. Code, § 290.011, subd. (b)) and failing to inform law enforcement of his new address (Pen. Code, § 290.013, subd. (a)). The complaint also alleged that he had suffered three prison priors (Pen. Code, § 667.5, subd. (b)). Defendant pleaded no contest to the failing to reregister count and admitted the prison priors in exchange for dismissal of the other count and an agreed sentence of two years in prison. The court struck the punishment for the prison priors and imposed the agreed two-year prison term. Defendant timely filed a notice of appeal.
Appointed appellate counsel has filed an opening brief that states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf but has failed to avail himself of the opportunity. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.

Here we modify a probation condition that the Attorney General concedes is constitutionally deficient.
Pursuant to a plea agreement, imposition of sentence was suspended and defendant Jonathan Roberts was placed on felony probation after pleading no contest to bringing onto the Stanford University campus a folding knife with a three-inch blade and two knives with fixed seven- and eight-inch blades. (Pen. Code, § 626.10, subd. (b).) He also pleaded no contest to a misdemeanor for loitering on the grounds of a pre-school after being asked to leave. (Pen. Code, § 653b.)
The probation report noted that defendant has a history of mental illness for which he was taking prescription medications. At sentencing, the court orally imposed the following probation condition, among others: “The defendant is not to own, possess or consume any alcohol or illegal substances or knowingly be anywhere where alcohol is a primary item of sale or illegal controlled substances are known by him to be used or sold.”[1] Another condition is that defendant cooperate with psychological and psychiatric counseling and treatment. When asked if he understood and accepted the terms and conditions of probation, defendant said, “I understand it. I don’t agree with all of it, but, yes, sir, I will comply.”
Defendant filed a notice of appeal without obtaining a certificate of probable cause. He contends that the prohibition against owning, possessing, or consuming alcohol and illegal substances requires an express scienter element to avoid being unconstitutionally vague and overbroad. The Attorney General concedes that the first half of the condition should be modified as proposed by defendant to state in pertinent part, “The defendant is not to knowingly own, possess, or consume alcohol or illegal substances.” We note that neither the trial court’s condition nor the parties’ proposed modification would allow defendant to take already prescribed medications or future prescriptions as part of his required psychiatric treatment.
We will order the condition modified to add a scienter requirement consistent with the reasoning of two recent decisions by this court without repeating their reasoning here. (People v Mendez (2013) 221 Cal.App.4th 1167; People v. Rodriguez (2013) 222 Cal.App.4th 578.) We will also order modification to permit possession and consumption of defendant’s prescribed medications.

After his motion to suppress evidence (Pen. Code, § 1538.5)[1] was denied, defendant Joe Nestor Lobato pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for two years. The court also ordered defendant to pay a probation supervision fee of up to $110 per month.
On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence. He argues that he was detained without reasonable suspicion, in violation of the Fourth Amendment of the United States Constitution. Defendant also contests the probation supervision fee, claiming there was insufficient evidence of his ability to pay the fee. He argues that trial counsel rendered ineffective assistance for failing to object to the probation supervision fee. As we will explain, we will reverse and remand the judgment so that the trial court may determine the defendant’s ability to pay the probation supervision fee.

While he was on probation for burglary of a dwelling, the defendant stole a cell phone from Seema Chicherur. He was charged with second degree robbery for taking the cell phone as well as false imprisonment. In addition he was charged with having prior serious felony convictions. He committed these offenses while on probation. After a rather lengthy presentation concerning defendant’s mental disabilities the court, in accordance with a plea agreement allowed him to enter a plea of no contest to second degree robbery. He also admitted the strike prior. The false imprisonment count was dismissed and the court sentenced him to four years in prison.
His appeal here urges us to reverse the trial court because it ordered him to pay a booking fee of $129.75 to the City of San Jose, this pursuant to Government Code sections 29550, 29550.1 and 29550.2.
In aid of his argument, he claims, as a matter of fact, that the trial court failed to assess his ability to pay the $129.75 booking fee and failed to determine what the actual administrative costs for the booking was. He supports his argument citing People v. Pacheo (2010) 187 Cal.App.4th 1392, 1399 (Pacheco), disapproved in People v. McCullough (2013) 56 Cal.4th 589, 598 (McCullough), as well as Government Code section 29550, subdivision (a) which provides that the fee “shall not exceed the actual administrative costs” of booking. The Attorney General answers that the argument is forfeited because he failed to object at the time of the fee imposition.

In this marital dissolution action, the qualified domestic relations order (QDRO)[1] filed on March 12, 2010, awarded respondent Sigalit Vardi her community property interest in appellant Eitan Eliahu’s retirement account. Finding that Eliahu had previously transferred the funds in the retirement account to his own accounts, on September 21, 2010, the trial court ordered issuance of a judgment in favor of Vardi and against Eliahu in the amount of $52,466. The judgment was not satisfied and on September 20, 2012, the trial court ordered that the amount of $63,558.62 ($52,466 plus attorney’s fees and interest), be paid to Vardi from an escrow account containing the proceeds of Eliahu’s voluntary sale of his residence. On May 15, 2013, the court denied Eliahu’s claim of exemption as to the escrow funds.
Eliahu, a self-represented litigant, has appealed the September 20, 2012 order (case No. H038931) and the May 15, 2013 order (case No. H039676).[2] This court on its own motion ordered the two appeals to be considered together for purposes of oral argument and disposition. For the reasons stated below, we will affirm both orders.

Defendant Kent Lee Maxon pleaded guilty to two counts of robbery. (Pen. Code, §§ 211, 212.5, subd. (b).[1]) He admitted allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of both offenses and had suffered a prior conviction for robbery, which qualified as a serious felony and a strike (§§ 667, subds. (a), (b)-(i), 1170.12). After the trial court denied defendant’s motion to dismiss the strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), it sentenced defendant to a 12-year prison term.
On appeal, defendant contends the trial court abused its discretion by denying his Romero motion. For the reasons stated below, we will affirm the judgment.

Defendant Raul Hernandez appeals after a jury convicted him of attempted first degree burglary (count 1; Pen. Code, §§ 459, 460, subd. (a), 664[1]), with a true finding on the allegation that the attempted burglary was a violent felony under section 667.5, subdivision (c)(21) because a person other than an accomplice was present in the residence during its commission, and possession of burglary tools (count 2; § 466), Defendant was sentenced to a three-year prison term, which included a concurrent term for count 2.
On appeal, defendant contends: (1) trial counsel was ineffective for failing to object to evidence that the victim believed defendant could hear him during a 9-1-1 call; (2) the trial court erred by instructing the jury that it could use evidence of defendant’s flight to show his consciousness of guilt, pursuant to CALCRIM No. 372; (3) the term for possession of burglary tools (count 2) should have been stayed pursuant to section 654; and (4) the section 667.5, subdivision (c)(21) allegation must be stricken as it does not apply to attempted burglary.
We agree that the term for possession of burglary tools (count 2) should have been stayed pursuant to section 654 and that the attempted burglary was not a violent felony under section 667.5, subdivision (c)(21). We will reverse the judgment and remand for resentencing.

While he was on probation for burglary of a dwelling, the defendant stole a cell phone from Seema Chicherur. He was charged with second degree robbery for taking the cell phone as well as false imprisonment. In addition he was charged with having prior serious felony convictions. He committed these offenses while on probation. After a rather lengthy presentation concerning defendant’s mental disabilities the court, in accordance with a plea agreement allowed him to enter a plea of no contest to second degree robbery. He also admitted the strike prior. The false imprisonment count was dismissed and the court sentenced him to four years in prison.
His appeal here urges us to reverse the trial court because it ordered him to pay a booking fee of $129.75 to the City of San Jose, this pursuant to Government Code sections 29550, 29550.1 and 29550.2.
In aid of his argument, he claims, as a matter of fact, that the trial court failed to assess his ability to pay the $129.75 booking fee and failed to determine what the actual administrative costs for the booking was. He supports his argument citing People v. Pacheo (2010) 187 Cal.App.4th 1392, 1399 (Pacheco), disapproved in People v. McCullough (2013) 56 Cal.4th 589, 598 (McCullough), as well as Government Code section 29550, subdivision (a) which provides that the fee “shall not exceed the actual administrative costs” of booking. The Attorney General answers that the argument is forfeited because he failed to object at the time of the fee imposition.