CA Unpub Decisions

The requirements for bids submitted for public works projects ordinarily are governed by the Public Contract Code. Charter cities, however, have latitude in the practices and procedures they employ in soliciting and awarding contracts for public works projects.
This appeal involves the issue of whether a charter city has authority to require contractors bidding on public works projects to demonstrate that they have prior experience constructing similar public works projects in order to be considered responsive to a request for bids.
Appellant City of San Luis Obispo (City) is a charter city. In its solicitations for bids for a large sewer line replacement project it required that bidders provide the City with information concerning prior experience with similar projects, specifically, experience with the "pipe bursting" method of sewer line replacement.
Respondent Wayne Vinciguerra submitted the lowest monetary bid. His bid listed five recent public works contracts but his submittal was insufficiently detailed to demonstrate that he had the requisite background and experience. The City determined the bid not "responsive" and asked that he provide the requested detail. He declined to do so. The City awarded the contract to the second lowest monetary bidder, real party in interest D'Arcy and Harty Construction, Inc. At a public meeting, the City Council denied Vinciguerra's appeal after receiving a staff report and presentations by the interested parties.
Vinciguerra filed a petition for writ of mandamus (Code Civ. Proc., § 1085) in which he contended the criteria used to determine whether his bid was responsive was not permitted by the Public Contract Code and he was entitled to a hearing before the City Council prior to award of the contract. After a bench trial, the court found that the City violated statutory procedures governing competitive bidding on public works projects by including criteria in the bid specification not authorized by statute or the City's charter. We conclude the trial court erred in failing to recognize the latitude a charter city has in fashioning its bidding protocol and reverse.

Defendant and appellant Juan Carlos Huezo (defendant) was convicted of murder (Pen. Code, § 187, subd. (a)[1]). On appeal, defendant contends that the trial court committed prejudicial error by instructing the jury that it could only consider defendant’s voluntary intoxication to determine whether defendant acted with the intent necessary for first-degree deliberate and premeditated murder and not in connection with the felony-murder charge; allowing the jury to be informed that a witness had not been given immunity; admitting evidence that defendant’s cousin told a witness to “stick to the story;” and to the extent there were any forfeitures, there was ineffective assistance of counsel. Defendant also contends that the cumulative effect of the errors requires reversal. The Attorney General requests that we strike the parole revocation fine that was imposed and suspended against defendant. We affirm the judgment as to defendant’s contentions, modify defendant’s sentence to eliminate the imposition of a parole revocation fine, and remand the matter to the trial court to amend the abstract of judgment accordingly.

Defendant and appellant Joseph Walker was found guilty by jury of first degree burglary in violation of Penal Code section 459.[1] Defendant was sentenced to the low term of two years in state prison.
In his timely appeal from the judgment, defendant argues (1) the accuracy of an out-of-court identification of defendant was not sufficient to constitute substantial evidence after a witness failed to make an in-court identification, (2) the trial court abused its discretion by denying probation on the ground that defendant continued to assert his innocence after conviction, and (3) the $10 crime prevention fee imposed under section 1202.5 must be reversed because of an absence of evidence of an ability to pay. We affirm.

Defendant Robert Ortiz Longoria was charged by information with one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] and alleged to have suffered a prior serious felony conviction (§§ 667, subd. (a), 1192.7), one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and three prison priors (§ 667.5, subd. (b)). He pleaded no contest to the crime and admitted the prior conviction allegations. The trial court exercised its discretion to strike the strike allegation and sentenced defendant to prison for seven years.

In 2010 this court reversed a judgment in plaintiff Insyst, Ltd.'s action against defendant Applied Materials, Inc. based on an error granting summary adjudication of Insyst's claim of misappropriation of trade secrets. Upon remand, Applied again moved for summary adjudication, which the superior court granted on a new showing of undisputed facts. Insyst again appeals, contending that the lower court incorrectly found that equitable estoppel did not save the action from the bar of the three-year statute of limitations, Civil Code section 3426.6. We will affirm the judgment.

After a jury trial, defendant Julio Cesar Olanjimenez was found guilty of threatening to commit a crime resulting in death or great bodily injury (Pen. Code, § 422),[1] assault with a deadly weapon (§ 245, subd. (a)(1)), and stalking (§ 646.9, subd. (a)). The trial court declared a mistrial as to the six remaining counts (3 counts of forcible rape (§ 261, subd. (a)(2)), 2 counts of threatening to commit a crime resulting in death or great bodily injury (§ 422), and 1 count of assault with a deadly weapon (§ 245, subd. (a)(1)) because the jury was unable to reach a verdict on those counts.
The prosecutor subsequently advised the trial court that the parties had agreed to a sentence bargain in which the six remaining counts would be dismissed in exchange for defendant agreeing to (1) a sentence in the range of three years four months to four years four months on the convicted counts; and (2) lifetime registration as a convicted sex offender. When the trial court questioned defendant as to his understanding of the registration requirement, defendant stated that he did “not accept that” and would “appeal the case.” Defendant then responded,“Yes,” to the court’s query, “[D]o you accept that you’re going to have to register if you lose your appeal?”

This is an appeal by Melissa O., the biological mother of now almost eight-year-old Aleah M., from a judgment terminating her parental rights to Aleah and freeing Aleah for adoption by Aleah’s stepmother, Jessica M. The basic theory of the judgment is that Melissa abandoned Aleah for a period in excess of one year, leaving Aleah with Jessica for that time period without support. (Fam. Code, § 7822.)
Melissa’s sole argument on appeal is remarkable. She does not argue that the evidence of abandonment was insufficient. Rather, she argues the “record demonstrates conclusively” Aleah’s father George and his wife Jessica “were not credible.” That is a very high bar to set for oneself on appeal. In Adoption of Allison C. (2008) 164 Cal.App.4th 1004 (Allison C.), for example, this court dismissed a challenge to a finding of abandonment based on credibility in a single sentence in a footnote, merely noting credibility is for the trial court to determine. (Id. at p. 1015, fn. 9.)

Defendant Karen Dee Ableman appeals from a 12-year suspended sentence imposed after she violated probation. The thrust of her argument is that the trial court abused its discretion by failing to exercise discretion in imposing the suspended sentence.
People v. Howard (1997) 16 Cal.4th 1081, 1095 makes it clear that where a sentence is imposed but suspended, the court lacks jurisdiction to alter the sentence. In her reply brief defendant argues the court should have reinstated probation. Considering defendant’s history, the court’s decision to impose the suspended sentence cannot be characterized as an abuse of discretion. We therefore affirm the judgment.

Fidelio Salazar Marin appeals from the judgment entered after a jury found him guilty of second degree murder and found true an allegation that he personally used a knife during the commission of the murder, within the meaning of Penal Code section 12022, subdivision (b)(1).[1] Marin contends: (1) there was insufficient evidence the killing was not committed during the heat of passion and, therefore, we should reduce his conviction to voluntary manslaughter; (2) the trial court erroneously permitted the prosecution to present a “cleaned up” English translation of a letter he wrote in Spanish immediately after the killing; and (3) we must strike the $200 restitution fines imposed under sections 1202.4 and 1202.45 because the court failed to orally pronounce judgment on the matter. We agree the restitution fines must be stricken, but otherwise reject Marin’s contentions and affirm the judgment as modified.

A jury convicted defendant Abel Armenta of three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),[1] as well as one count each of probationer in possession of a firearm (§ 12021, subd. (d)(1)),[2] active participation in a gang (§ 186.22, subd. (a)) and brandishing a firearm in the presence of occupants of a motor vehicle (§ 417.3), and found true the associated gang and firearm enhancement allegations. The court sentenced defendant to a total term of seven years in prison, consisting of the three-year midterm for one assault with a firearm conviction and a consecutive four-year midterm for the associated personal use of a firearm enhancement (§ 12022.5, subd. (a)); the court sentenced him to concurrent or stayed terms on the other convictions and enhancements.

This is an appeal from an order for continuing wardship. Appellant Francisco J., a minor, contends several of the probation conditions imposed upon him are unconstitutionally overbroad. He asks that we modify these conditions to ensure their constitutionality. Respondent concurs with minor’s request. In three instances, we modify the conditions of probation. In a fourth instance, we remand the matter for imposition of a modified condition if the juvenile court determines that such condition is appropriate.

Appellant Manuel John Souza, Jr., a Central California resident, appeals from an order of dismissal without prejudice in a negligence action arising from personal injuries sustained at a condominium complex in the State of Hawaii. The superior court’s December 16, 2010, minute order of dismissal followed the superior court’s January 20, 2010, formal order staying the action on the grounds of an inconvenient forum (Code Civ. Proc., §§ 396b, subd. (a), 410.30). We affirm.

Plaintiff, claiming it was underpaid for its 2001 and 2002 pomegranate crop, sued the commission merchant that sold the fruit and also a dozen businesses that acquired the fruit from the commission merchant. The businesses obtained a judgment on the pleadings on the ground that they owed no fiduciary duties to plaintiff because they were buyers acting on their own behalf and were not subagents of the commission merchant. In Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395 (Mendoza I), we overturned that judgment, concluding that the businesses’ status as buyers or subagents could not be decided at the pleading stage of the lawsuit.
After remand, the trial court held a bench trial and issued a statement of decision holding the businesses that obtained pomegranates from the commission merchant had no liability because they were buyers, not subagents. The court also held the commission merchant liable to plaintiff for approximately $24,000 in damages relating to the 2002 crop.
On appeal, plaintiff contends the trial court erred by determining the businesses that obtained the pomegranates on price-after-sale (PAS) terms were buyers. In plaintiff’s view, these transactions should have been viewed as a reconsignment of the fruit, and the businesses should have been treated as subagents who owed duties to plaintiff. Plaintiff also contends the amount of damages awarded against the commission merchant was too small.
We conclude that the question whether the entities were buyers or subagents was a question of fact, and the trial court’s finding was supported by substantial evidence. In addition, we conclude that plaintiff failed to demonstrate the trial court committed reversible error in its calculation of damages involving the 2002 crop. The judgment is affirmed.

Tamika B., mother of dependent child Isaiah R., appeals a juvenile court order summarily denying her petition for modification under Welfare and Institutions Code section 388,[1] by which she sought reunification services and unsupervised visits with Isaiah. Tamika contends she was entitled to an evidentiary hearing on her section 388 petition because she presented prima facie evidence her circumstances had changed and it was in Isaiah's best interests to grant the requested modification for reunification services.[2] We affirm the order.