CA Unpub Decisions

For the second time in recent years we are called upon to construe the scope of rule 8.278 of the California Rules of Court (rule 8.278), which governs recovery of costs allowed following a successful appeal. Last year the Supreme Court affirmed a decision by this court, and held that “rule 8.278(d)(1)(F) does not authorize an award of costs for interest expenses and fees incurred to borrow funds to deposit as security for a letter of credit that was procured to secure an appeal bond.” (Rossa v. D.L. Falk Construction, Inc. (2012) 53 Cal.4th 387, 399 (Rossa).) Here, the respondent borrowed money to deposit with the trial court in lieu of securing an appeal bond. After its appeal was successful, it was allowed to recover the more than $200,000 interest paid on the borrowed funds as a cost of appeal. The costs were included in an amended judgment from which this timely appeal was perfected.
We first consider whether rule 8.278 and the reasoning of Rossa preclude the appellant recovering the interest paid on the borrowed funds as a cost of appeal. We conclude this type of interest is likewise precluded. Next, we consider whether a recent amendment of rule 8.278, which expressly allows recovery of interest in this situation, and which became effective during the pendency of this appeal, should be given retroactive application. We conclude that it should not. In light of these conclusions, we modify the amended judgment by deleting the interest, and affirm the modified, amended judgment.

Plaintiffs appeal from summary judgment in favor of defendants, Bankers Insurance Company, Bankers Insurance Group, and Bankers Financial Corporation (Bankers). The sole issue is whether a third party claim, resulting from an automobile accident, is covered under a commercial general liability (CGL) policy that purports to exclude coverage for automobile-related losses. We conclude that under applicable California decisional law and the insurance policy exclusion in question there is no coverage under the policy and therefore affirm.

Defendant in propria persona, Dr. Tim Langdell, appeals from a judgment denying his petition to vacate an arbitration award in favor of attorney Seth Steinberg in an attorney-client fee dispute. Langdell alleged that the arbitrators abused their discretion by refusing to postpone the hearing. The trial court disagreed and granted Steinberg’s petition to confirm the award.
Langdell contends that the award must be vacated because the chair of the arbitration panel was subject to disqualification and refused to disqualify himself on Langdell’s demand; the arbitration panel unfairly refused to postpone the arbitration hearing; and the arbitration panel refused to consider key evidence. Langdell also contends that the court should have granted his motion to reconsider the judgment and should have granted him a new trial. These arguments lack merit and we affirm the judgment.

Defendant Jamal R. Trulove appeals from his conviction of first degree murder, accompanied by a sentence enhancement, and possession of a firearm by a felon, for which defendant was sentenced to 50 years to life imprisonment.
Defendant claims the judgment must be reversed for six categories of reasons. Specifically, he argues the trial court improperly denied his motion for a new trial based on newly discovered evidence; the trial court improperly denied his pretrial motion to dismiss the case based on the People’s failure to provide certain discovery, which purportedly denied him his right to a fair preliminary hearing; the trial court did not give certain jury instructions sua sponte; the trial court improperly allowed the prosecution’s key witness to testify about her fear of retaliation and her participation in the witness protection program; the prosecutor committed numerous acts of prejudicial misconduct in her closing argument; and the evidence was insufficient to support defendant’s first degree murder conviction. We have reviewed each of defendant’s claims and conclude there is not a basis for reversal.

Plaintiffs Dongsheng Wang and Xingdi Meng sued defendant Core General Contractor, Inc. (Core) after its employee, Mitulkumar K. Patel, allegedly struck Wang in a crosswalk while Patel was driving to work. Core moved for summary judgment on the ground that it was not vicariously liable for the conduct of its employee, because Patel was driving his personal vehicle to work at the time of the accident. The trial court granted the motion. Plaintiffs filed a motion for a new trial, which the court denied.
On appeal, plaintiffs contend that the trial court erred in granting Core’s motion for summary judgment and in denying their motion for a new trial because triable issues of material fact exist regarding the employee’s use of his vehicle for work.
For reasons that we will explain, we will affirm the judgment in Core’s favor.

Minor, A.G., appeals from a dispositional order entered by the juvenile court after the minor admitted 10 counts of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)), as alleged in two petitions filed under Welfare and Institutions Code section 602. We appointed counsel to represent the minor in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We attempted to notify the minor of his right to submit written argument in his own behalf within 30 days by mailing written notice to the minor’s last known address. Thirty days have elapsed and we have had no response from the minor; the notice was returned as undeliverable.

S.Q. was declared a ward of the juvenile court (see Welf. & Inst. Code, § 602) and placed on probation. One condition of his probation was that he “not be on or adjacent to any school campus unless enrolled or with prior administrative approval.” S.Q. contends that the condition is unconstitutionally vague and overbroad. We modify the order to correct the vagueness problem and as modified, affirm.

A jury convicted defendant Ulisis Barajas of second degree murder and found true allegations that he (1) personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)--consecutive 25-year-to-life sentence enhancement),[1] and (2) committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)--consecutive 10-year sentence enhancement). The trial court sentenced defendant to 50 years to life (15 years to life for the murder conviction plus the 25-year and 10-year enhancements). On appeal, defendant contends that the trial court (1) erred by overruling his objections to gang expert testimony, (2) erroneously instructed the jury in the language of CALCRIM No. 3471 (sudden-escalation exception to self-defense), (3) erred by imposing the 10-year enhancement, and (4) erred by imposing cruel and unusual punishment. The People concede the enhancement issue and we agree that the concession is appropriate. We otherwise reject defendant’s contentions. We therefore modify and affirm the judgment.

Petitioner, Kelly Ronald Dambra, seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a jury trial, Dambra was convicted of two counts of second degree robbery. A five-year enhancement for a prior serious felony conviction was also found true and on March 29, 2013, Dambra was sentenced to a total of seven years in prison. On June 26, 2013, counsel filed a notice of appeal in superior court case number 12NF1885. This court advised Dambra that it was considering dismissing the appeal on the basis that the appeal was untimely. In lieu of filing a petition for writ of habeas corpus, counsel filed a “motion to request constructive filing of [the] notice of appeal.” In support of the motion, counsel prepared a declaration stating that Dambra wanted to appeal the verdict, and he advised Dambra that he would file a notice of appeal on his behalf. According to counsel, Dambra relied on his assurance that he would file a timely notice of appeal, but he inadvertently failed to file the notice of appeal within 60 days from the date of the sentencing hearing.
The principle of constructive filing of the notice of appeal should be applied in situations where trial counsel advises a criminal defendant that he will file a notice of appeal on his client’s behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney is under a duty to either file the notice of appeal, or tell the client how to file it himself. In this case, Dambra relied on trial counsel to file a timely notice of appeal on his behalf. His reasonable reliance on counsel to file a timely notice of appeal entitles him to the relief requested.

The juvenile court found true allegations Michael D. committed vandalism (Pen. Code, § 594)[1] for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (d) (section 186.22(d)). The juvenile court declared Michael a ward of the court and granted supervised probation.
Michael challenges the sufficiency of the evidence to support the primary activities and specific intent elements of the section 186.22(d) gang enhancement. He also argues the gang expert’s reliance on hearsay violates his Sixth Amendment right to confront adverse witnesses. (Crawford v. Washington (2004) 541 U.S. 36, 51-53 (Crawford).) In addition, Michael asserts the juvenile court erred by excluding certain defense expert testimony, and by not expressly declaring the vandalism conviction to be a felony as required by Welfare and Institutions Code section 702 (section 702). We agree with his final contention but conclude the error is harmless and affirm the judgment.

Paul Javier Martinez appeals from a judgment after a jury convicted him of willful, deliberate, and premeditated attempted murder and aggravated assault and found true he personally used a deadly weapon and inflicted great injury. Rodriguez has one contention on appeal: the trial court erred in admitting the testimony of the gang expert. We disagree and affirm the judgment.

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In this family law case, appellant Raul Camacho, Jr. filed a motion in the trial court to modify the amount of arrears he owed for child support. Appellant claimed that the computation of arrears presented by respondent Kern County Department of Child Support Services (the Department) was mistaken because it failed to account for numerous extra payments he had made toward child support over the years. An evidentiary hearing was held before Commissioner Ralph L. McKnight, Jr., who determined that some of the extra payments should be credited toward appellant’s child support obligations, but other payments were gifts and therefore did not constitute child support. Appellant was unhappy with that result and moved to set aside the trial court’s order on the ground that he (appellant) was not properly advised pursuant to Family Code section 4251, subdivision (b), of his right to object to having the matter heard by a commissioner rather than a judge.[1] Commissioner McKnight also heard the set-aside motion and denied it. Appellant appealed, challenging both orders. We will affirm.

Appellant Larry David Bullard, and codefendant Michael Allen Foster (Foster) were charged with grand theft of gold dust, amalgam or quicksilver under Penal Code section 487d.[1] Further, it was alleged that Bullard had served a prior prison term for a felony conviction (§ 667.5(b)). Following a two-day trial, the jury found appellant guilty on March 20, 2011. Thereafter, the trial court found the prior felony allegation enhancement true.
On May 20, 2011, appellant was ordered to serve the middle term of two years in state prison, but sentence was suspended for three years, and appellant was placed on probation and ordered to serve nine months in the county jail. Additionally, appellant was ordered to pay various fines and fees.
Appellant contends that the trial court erred when it failed to instruct on the elements of attempt. We find no prejudicial error and affirm.

Mother appeals from a juvenile court order terminating her parental rights to her daughter, T.D., born in July 2012. (Welf. & Inst. Code, § 366.26.)[1] Mother, a registered member of the San Carlos Apache Tribe, contends the juvenile court failed to ensure proper notice was provided under the Indian Child Welfare Act of 1978, 25 United States Code section 1901 et seq. (ICWA).
Respondent CFS[2] concedes the record on appeal does not demonstrate compliance with ICWA notice requirements and proposes the proceedings be remanded to the juvenile court to allow compliance. If, after proper ICWA notice, no tribe claims that the child is an Indian child, the juvenile court shall proceed in conformity with all the provisions of ICWA and the order terminating parental rights shall be reinstated.