CA Unpub Decisions

Defendant Clifford Allen Alvarez is serving a sentence for attempting to kidnap two girls who were under 14 years of age, one of whom he also threatened. In this appeal, he challenges the trial court’s imposition of consecutive sentences as to his attempted kidnapping and threatening one girl on the grounds that Penal Code section 654[1] applied.

Following a jury trial, defendant Robert Patrick Naranjo was convicted of unlawful possession of metal knuckles. (Pen. Code,[2] former § 12020, subd. (a)(1).[3]) In a bifurcated trial, the court found true a prior strike conviction. Defendant was sentenced to four years in state prison. In a separate proceeding, defendant pled guilty to cultivating marijuana (Health & Saf. Code, § 11358) for which the trial court sentenced him to two years in state prison, to be served concurrently with the weapons possession case.
I. FACTS
On June 30, 2010, defendant willfully and unlawfully planted, cultivated, harvested, dried, and processed marijuana.
On November 18, 2010, Riverside County Sheriff’s Deputy Thomas Davis searched defendant’s home in Lake Elsinore and found a black mechanic’s-type tool bag on the top of the bed. The bag contained metal knuckles, along with some knives, including two “throwing knives” and Swiss Army knives. The deputy testified that the metal knuckles were “kind of . . . decorative” because there were wings on them. They also had a small, concealable two-inch blade on the side. Defendant told the deputy they were a gift and he thought it was legal to possess them.

Defendant and appellant Dale Bruce Moore appeals after he was found guilty by a jury of two charges of failing to register as a sex offender. At a bifurcated proceeding, he admitted allegations that he had been convicted of strike priors and had suffered prior prison terms. He now complains that his sentence was improper because the evidence was insufficient to establish the elements of the enhancement allegations he admitted to the trial court. We affirm.

A jury convicted defendants and appellants Diego Bocanegra and Salvador Hernandez (collectively, “defendants”) of two counts of second degree robbery of victims Oscar Bracamontes and Carlos Vaquera (collectively, “victims”) (Pen. Code, § 211—counts 1 & 2).[1] The jury additionally found true allegations defendants had personally used a firearm in their commission of the robberies (§ 12022.53, subd. (b)); had committed the robberies for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); and that a principal had personally used a firearm in the commission of the robberies (§ 12022.53, subs. (b) & (e)(1)). The court sentenced defendants to an aggregate, determinate term of imprisonment of 19 years, 4 months, consisting of the following: the five-year aggravated term for the robbery in count 1; 10 years for the personal use enhancement on count 1; punishment stricken, on the gang enhancement on count 1; one third the midterm of three years (one year) consecutive on count 2; one third the midterm of 10 years (three years, four months) consecutive for the personal use enhancement on count 2; and punishment stricken for the gang enhancement on count 2.

Defendant and appellant Javier Angelo Tueros de Lama appeals after he pleaded guilty to one count of possessing prescription drugs for sale in violation of Health and Safety Code section 11375, subdivision (b)(1). He contends that his trial attorney rendered constitutionally ineffective representation in failing to specifically advise defendant of the immigration consequences of his guilty plea. He filed a nonstatutory motion below to vacate the plea on that ground. The trial court denied the motion; defendant contends that the denial of the motion was erroneous.
The People argue in contrast that defendant forfeited the issue by failing to bring a timely motion to withdraw his plea, or otherwise to seek review by a proper procedure. We agree with the People that defendant did not pursue an appropriate avenue to review his claim of ineffective assistance of counsel (IAC); although his motion below was the functional equivalent of a petition for writ of error coram nobis, this court has recently held that such a procedure is an improper vehicle by which to vacate or withdraw a guilty plea on the ground of IAC. (See People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1145-1146 [Fourth Dist., Div. Two] (Mbaabu).) Even if, in an abundance of caution, the issue is considered on the merits, defendant failed to carry his burden of showing entitlement to relief under the writ.
Because the essential question—whether defendant pursued an appropriate vehicle by which to raise his claim—is answered in the negative, we conclude that the trial court properly determined it had no jurisdiction to proceed. Defendant’s appeal must be dismissed.

A jury found defendant and appellant Jorge Jose Menjivar guilty of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[1] Defendant thereafter admitted that he had suffered one prior serious or violent felony strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) As a result, defendant was sentenced to a total term of six years in state prison with credit for time served. On appeal, defendant contends (1) the trial court erred in denying his request to instruct the jury on simple assault, and (2) he is entitled to additional presentence conduct credits under the most recent amendment to section 4019. We reject these contentions and affirm the judgment.

This appeal and cross-appeal arise from a dispute concerning the construction of a self-service carwash facility. Chibueze Dallah and Sharon Dallah (collectively “Owners”), sued Edward Konopacki (Contractor), who was doing business as EK Construction Co., for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) indemnity, and (4) declaratory relief. Contractor sued Owners for (1) breach of contract, (2) indemnity, and (3) declaratory relief.

Jennifer T. appeals juvenile court jurisdictional and dispositional orders concerning her children, E.T. and R.T. She contends the court erred by removing the children from her care, and it abused its discretion and violated her due process rights when it limited her right to direct the children's education. We grant the motion by the San Diego County Health and Human Services Agency (the Agency) to augment the record with the juvenile court minute order of August 15, 2013, which shows the court has reinstated Jennifer's educational rights. We thus conclude this issue is moot. As to the other matters Jennifer raises, we hold substantial evidence supports the orders removing the children from her custody, and she has not shown a denial of due process. We affirm the orders.

This case involves the applicability of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.).[1] Alyssa M. appeals a judgment declaring her minor son, Adolfo M., a dependent of the juvenile court and removing him from parental custody, contending the court erred by asserting subject matter jurisdiction under section 3421, subdivision (a)(2). We conclude the UCCJEA controls the jurisdictional analysis the court must undertake before it can properly make its dependency findings and orders. We reverse the judgment and remand the matter to the juvenile court to conduct a hearing on subject matter jurisdiction in accordance with the UCCJEA.

Defendants and appellants M.P. (mother) and A.P., Sr., (father) each contend the evidence was insufficient to support the jurisdictional finding of the juvenile court that their minor son, Jo., was at substantial risk of being sexually abused as provided in Welfare and Institutions Code[1] section 300, subdivision (j) based on the undisputed finding that father repeatedly, over the course of years, sexually molested Jo.'s older sister, K.
Father separately contends there was insufficient evidence to support the allegation in Jo.'s section 300 petition that father "dabbled in child pornography." Finally, mother alone contends the record is devoid of clear and convincing evidence to support the removal of K., T., C. and Jo. from her custody under section 361, subdivision (c)(4).
As we explain, we conclude there is substantial evidence in the record to support the true finding under section 300, subdivision (j) that Jo. was at substantial risk of being sexually abused. We also conclude there is sufficient evidence in the record to support the finding that father "dabbled in child pornography." Finally, we conclude there is clear and convincing evidence in the record to support the findings and order based thereon removing K., T., C. and Jo. from mother's custody under section 361, subdivision (c)(4).

Plaintiff and appellant Denise Shanley appeals the judgment entered after a bench trial. She contends the trial court prejudicially erred when it (i) excluded the testimony of an expert witness she untimely designated to rebut a handwriting expert purportedly designated by her cotrustee brother, defendant and respondent Kirk Shanley, that Kirk did not call as a witness at trial; (ii) ruled Kirk had preserved his objections to Denise's second accounting despite his failure to provide such pretrial objections in writing; and (iii) admitted for impeachment purposes both Denise's record of conviction and the factual statement supporting her guilty plea arising from her unlawful billing of a workers' compensation carrier for chiropractic services she rendered.
Denise also contends the court erred when it found (iv) she subsequently recouped nearly all of the funds she transferred without consideration to E.M. Kelly Shanley—the mother of Denise and Kirk (the decedent)—during the course of the criminal investigation against Denise; (v) she breached her fiduciary duty as a cotrustee of the trust; and (vi) there was no agreement between her and the decedent to acquire together a valuable piece of real property located in Carlsbad (Carlsbad property) in which title was in decedent's name only.
As we explain, we reject each of Denise's contentions and affirm the judgment in its entirety.

Jorge V. entered a negotiated admission to importing heroin into California (Health & Saf. Code, § 11352, subd. (a)). The juvenile court adjudged him a ward and ordered him committed him to Camp Barrett for 365 days. Jorge appeals, contending he was denied due process because the prosecutor and the court did not comply with the required procedure for deferred entry of judgment and the court followed a sentencing policy rather than making an individualized decision regarding the disposition. The People concede both points.
The prosecutor determined that Jorge was eligible for deferred entry of judgment but did not give him written notification (Welf. & Inst. Code, §§ 790, subd. (b) & 791, subd. (a)) and did not file the required determination of eligibility form (Cal. Rules of Court, rule 5.800(b)(1); Welf. & Inst. Code, § 790, subd. (b)). (In re C.W. (2012) 208 Cal.App.4th 654, 659-660.) The court did not give notice to Jorge and his parents and did not hold a hearing regarding deferred entry of judgment. (Welf. & Inst. Code, § 792; Cal. Rules of Court, rule 5.800(c); In re C.W., at pp. 660, 662; In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) The true finding and dispositional judgment must therefore be reversed. (In re C.W., at p. 662; In re Luis B., at p. 1123.) We remand the case to the juvenile court for proceedings complying with Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800.

Defendants and appellants M.P. (mother) and A.P., Sr., (father) each contend the evidence was insufficient to support the jurisdictional finding of the juvenile court that their minor son, Jo., was at substantial risk of being sexually abused as provided in Welfare and Institutions Code[1] section 300, subdivision (j) based on the undisputed finding that father repeatedly, over the course of years, sexually molested Jo.'s older sister, K.
Father separately contends there was insufficient evidence to support the allegation in Jo.'s section 300 petition that father "dabbled in child pornography." Finally, mother alone contends the record is devoid of clear and convincing evidence to support the removal of K., T., C. and Jo. from her custody under section 361, subdivision (c)(4).
As we explain, we conclude there is substantial evidence in the record to support the true finding under section 300, subdivision (j) that Jo. was at substantial risk of being sexually abused. We also conclude there is sufficient evidence in the record to support the finding that father "dabbled in child pornography." Finally, we conclude there is clear and convincing evidence in the record to support the findings and order based thereon removing K., T., C. and Jo. from mother's custody under section 361, subdivision (c)(4).

Plaintiff and appellant Denise Shanley appeals the judgment entered after a bench trial. She contends the trial court prejudicially erred when it (i) excluded the testimony of an expert witness she untimely designated to rebut a handwriting expert purportedly designated by her cotrustee brother, defendant and respondent Kirk Shanley, that Kirk did not call as a witness at trial; (ii) ruled Kirk had preserved his objections to Denise's second accounting despite his failure to provide such pretrial objections in writing; and (iii) admitted for impeachment purposes both Denise's record of conviction and the factual statement supporting her guilty plea arising from her unlawful billing of a workers' compensation carrier for chiropractic services she rendered.
Denise also contends the court erred when it found (iv) she subsequently recouped nearly all of the funds she transferred without consideration to E.M. Kelly Shanley—the mother of Denise and Kirk (the decedent)—during the course of the criminal investigation against Denise; (v) she breached her fiduciary duty as a cotrustee of the trust; and (vi) there was no agreement between her and the decedent to acquire together a valuable piece of real property located in Carlsbad (Carlsbad property) in which title was in decedent's name only.
As we explain, we reject each of Denise's contentions and affirm the judgment in its entirety.