CA Unpub Decisions

On June 2, 2009, appellant, Michael P., a minor, was adjudicated of committing a felony violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon or by means of force likely to cause great bodily injury). On November 5, 2009, the juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), and declared his maximum term of physical confinement (Welf. & Inst. Code, § 731, subd. (c))[1] (MTPC) to be four years four months, based on the instant offense and another offense adjudicated in a prior wardship proceeding, less 267 days of custody credit. By a document filed December 23, 2011, the Stanislaus County Probation Department notified the juvenile court that appellant was discharged from the jurisdiction of DJJ on December 14, 2011, and requested that the court recall the DJJ commitment and return appellant to probation status.[2] On December 28, 2011, the juvenile court recalled appellant’s DJJ commitment and placed him on probation, with various terms and conditions. At a subsequent hearing on February 10, 2012, the court determined appellant’s probationary period to be 16.3 months, which it calculated by crediting appellant with 31.7 months (951 days) in custody against a total term of 48 months.

A jury convicted appellant, Chor Xiong, of the unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)), and in two separate proceedings, appellant admitted allegations that he had suffered a “strike,”[1] served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b))[2], and suffered a prior conviction of violating Vehicle Code section 10851 (Veh. Code, § 10851, subd. (e)). The court imposed a prison term of 10 years, consisting of the four-year upper term on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), for a total of eight years, and one year on each of the two prior prison term enhancements. The court awarded appellant presentence custody credits of 415 days, consisting of 277 days of actual custody credits and 138 days of conduct credits.
On appeal, appellant contends the court erred in failing to (1) award him presentence conduct credits under the one-for-one credit scheme of the current iteration of section 4019; (2) conduct an adequate inquiry to determine if appellant needed the assistance of an interpreter; and (3) appoint an interpreter. We affirm.

Appellant, Jaime Pineda Moreno, appeals from the trial court’s denial of his petition, pursuant to Penal Code section 1016.5,[1] to vacate his 1993 conviction in case No. 482591-5 for sale of marijuana (Health & Saf. Code, § 11360, subd. (a)). He contends he was not adequately advised of the immigration consequences of his plea as required by section 1016.5.[2] We conclude that a motion to vacate a judgment for failure to give the section 1016.5 advisements is an attack on the validity of the plea. As such, an appeal from the denial of such a motion requires the defendant to obtain a certificate of probable cause from the trial court in compliance with section 1237.5. Because appellant did not obtain the requisite certificate of probable cause, we dismiss the appeal.

Ayodeji A. Ogundare, individually and doing business as Pacific Engineering Company (together Pacific), filed a petition for writ of administrative mandate asking the trial court to set aside a “debarment”[1] decision adopted by the State of California, Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) that would have precluded Pacific from bidding or working on public works construction projects for one year. The trial court reviewed the administrative record and concluded there was no credible evidence to support a finding that Pacific violated prevailing wage laws with intent to defraud, which finding was necessary in this case for debarment to be imposed under Labor Code section 1777.1.[2] Accordingly, the trial court granted Pacific’s petition. DLSE appeals, arguing that (i) the trial court failed to apply the correct standard of review (i.e., the substantial evidence test) and (ii) there was substantial evidence in the record to support the administrative finding of intent to defraud. We agree on both points and will reverse.

In this matter we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
A defendant has a constitutional right to proceed without counsel if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 807.) Such a request must be unequivocal and must also be made within a reasonable time before the commencement of trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1365.) In ruling on such a request, the court should consider (1) the quality of counsel’s representation, (2) the defendant’s prior proclivity to substitute counsel, (3) the reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Windham (1977) 19 Cal.3d 121, 128.)

Defendant and Respondent, U.G., Sr. (Father), appeals after the termination of his parental rights to minors U.G., Jr., and M.G. at a Welfare and Institutions Code section 366.26[1] hearing.
Father claims in this appeal that clear and convincing evidence did not support the juvenile court’s finding that the children were adoptable.[2]
We find no error.

Pursuant to a plea bargain, defendant and appellant David Allen Crandall pleaded guilty to one count of lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)),[1] and one count of continuous sexual abuse (§ 288.5, subd. (a)). In return, the remaining counts charged in the information were dismissed.[2] The agreed-upon sentence was 24 years, consisting of the upper term of eight years under section 288, subdivision (a), and a consecutive upper term of 16 years under section 288.5, subdivision (a).
Defendant filed a timely notice of appeal from the sentence or other matters occurring after the plea and from the denial of a motion to suppress evidence pursuant to section 1538.5.
We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. We offered defendant the opportunity to file any supplemental brief he deemed necessary, but he did not do so.

Father appeals from jurisdictional and dispositional orders and findings in which the juvenile court denied reunification services and ordered paternity testing. The court further ordered that, if DNA testing determined that father was not A.P.’s biological father, the court would vacate all findings and orders as to father. Father contends the juvenile court erred in delaying compliance with Welfare and Institutions Code section 316.2,[1] by not immediately ordering paternity testing, before conducting a contested joint jurisdictional and dispositional hearing. Father also argues that the juvenile court erred in denying his request for a continuance of the hearing. We conclude there was no reversible error and affirm the judgment.

Defendant and appellant Paul Eric Paris appeals following a guilty plea, asserting that the trial court abused its discretion in imposing the upper term on the principal count and that he is entitled, as a matter of equal protection, to presentence conduct credits at the two-for-two rate provided for in the current version of Penal Code section 4019.
We find no abuse of discretion, and we reject defendant’s equal protection argument.

This is an action originating in defendants’ attempts to foreclose on a trust deed secured by plaintiffs’ residence. On January 4, 2012, the trial court granted defendants’ motion for summary judgment. Judgment was entered on the same day. Plaintiffs then filed their notice of appeal.

On September 22, 2011, the trial court denied defendant and appellant Ronald R. Savin’s motion for costs and attorney fees as untimely under California Rules of Court, rule 3.1702.[1] Savin appeals, contending that the trial court erred because his motion was timely filed under rules 3.1702 and 8.104(a).[2]
Since the sole issue in the case is a legal issue, we apply a de novo standard of review.
Rule 3.1702(b)(1) applies to claims for statutory attorney fees and in contract actions. It provides: “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . . .”
Rule 8.104(a)(1) provides that an appeal must be filed “on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.”[3]

A demurrer is used to test the sufficiency of the factual allegations of the complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The facts pled are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Denise D. (Denise) and Richard G. (Richard) appeal the juvenile court's order terminating their parental rights to their son, R.G., pursuant to Welfare and Institutions Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) Denise also appeals the juvenile court's order denying her petition for modification under section 388, asking that R.G. be placed with her, or alternatively, that she be granted further reunification services.
We conclude the juvenile court abused its discretion in denying Denise's section 388 petition and, accordingly, reverse that order. In view of that conclusion, we need not address the parents' other arguments challenging the trial court's order terminating their parental rights under section 366.26. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 ["In the chronology of these events, a fair hearing on the section 388 petition was a procedural predicate to proceeding to the section 366.26 hearing and disposition."]; In re Lauren R. (2007) 148 Cal.App.4th 841, 861 (Lauren R.) ["Because it is necessary to restore all parties to their prior positions, the orders terminating parental rights are also reversed"].)

This case involves an insurance coverage dispute between Black Silver Enterprises, Inc. (Black Silver) and Sequoia Insurance Company (Sequoia). Black Silver sought coverage under two separate business owners insurance policies for losses resulting from employee theft at its clothing boutiques. Sequoia concluded that coverage for Black Silver's loss was limited by a coverage extender to $10,000 per policy and refused to pay up to the business personal property limits in the policies. After a bench trial, the court entered judgment in favor of Sequoia on Black Silver's breach of contract, bad faith and declaratory relief claims. Black Silver appeals, contending the trial court erred by (1) entering judgment in favor of Sequoia because the purported coverage limitation was not conspicuous, plain and clear, and (2) ignoring its objection to expert testimony on the ultimate issues of the case. We conclude the employee dishonesty coverage limitation is not conspicuous, plain and clear and reverse the trial court's judgment. This conclusion moots Black Silver's claim of evidentiary error.