CA Unpub Decisions

Donald Alan Adams appeals the judgment entered following his guilty plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378), and his admission that he had suffered a prior strike conviction (Pen. Code,[1] § 667, subds. (c)(1), (e)(1)), and a prior conviction for possessing a controlled substance for sale (Health & Saf. Code, §§ 11370.2, subd. (a), 11378). Appellant also admitted violating his probation in two prior cases in which he was convicted of burglary (§ 459; case no. 2009047354), and possession for sale of a controlled substance (Health & Saf. Code, § 11378; case no. 2009016854). The trial court sentenced him to five years eight months in state prison and struck the prior strike conviction. In the instant matter, appellant was awarded 404 days presentence custody credits, consisting of 270 actual days and 134 good conduct days. The court awarded him a total of 222 days presentence custody credit on each of the probation violation matters, consisting of 148 days actual custody credit and 74 days conduct credit.
Appellant’s sole contention on appeal is that he is entitled to additional custody credits in case number 2009016854 under the version of section 4019 that was in effect from January 25, 2010, until September 28, 2010. He argues that the statute applies retroactively because the judgment in case number 2009016854 was not final when the relevant version of section 4019 went into effect. This claim is meritless. As the People correctly note, appellant was not entitled to additional credits under the statute as a matter of law because he has a prior strike conviction. (People v. Lara (2012) 54 Cal.4th 896, 906-907.) This is so notwithstanding the fact that the court struck the prior in the interests of justice. “In the case before us, the historical fact that limits [appellant’s] presentence conduct credits under former section 4019 is his prior conviction for first degree burglary (§§ 459, 460, subd. (a)) because it is a serious felony (see § 1192.7, subd. (c)(1)(18)). The People pled the prior conviction for the different purpose of triggering various statutory sentence enhancements. Nevertheless, as we have explained, this pleading was sufficient to inform defendant that his presentence conduct credits might be limited. The trial court struck the allegation under section 1385 in order to avoid the enhancements, but ‘when a court has struck a prior conviction allegation it has not “wipe[d] out” that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant’s personal history’ and available for other sentencing purposes. [Citations.]” (Ibid., fn. omitted.) We are bound to follow this authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.

This is an appeal from orders denying a class certification motion. Plaintiffs, Hector Rogelio Rodriguez (Mr. Rodriguez) and Jaime Alejandro Rodriguez (Jaime)[1], were former employees of defendant, Lakin Tire West, Inc. They sued defendant on various theories for alleged violations of the Labor Code[2], the Business and Professions Code, and under the 2004 Private Attorneys General Act (§ 2699 et seq.). The trial court denied with prejudice plaintiffs’ class certification motion concerning the failure to provide a meal period and for uniform service fees. The trial court denied without prejudice class certification of claims defendant violated its employees’ rights by combining two 10-minute rest breaks into a single 20-minute break period. Defendant’s provision of a single 20-minute rest break allegedly violates section 12 of Industrial Welfare Commission Wage Order No. 1-2001.
Plaintiffs appealed contending the trial court abused its discretion in denying certification of all the claims. Defendant has moved to dismiss the appeal as violating the one final judgment rule. We deny the dismissal request. We affirm the order denying class certification as to the bell system meal and rest break and the uniform service fees claims. We reverse the order denying class certification as to the combined 20-minute break period. In doing so, we hold that Mr. Rodriguez may act as the class representative in connection with the Subclass 1A combined 20-minute break period issue.

Plaintiff and appellant Gabriel Aguayo was a patient for over two months at St. Francis Medical Center after he was shot multiple times in an attempted robbery. Appellant filed suit against the hospital, alleging medical malpractice because he developed skin breakdown, or bedsores, during his ten-week hospitalization. He now appeals from a judgment entered after the trial court granted the motion for summary judgment brought by respondent St. Francis Medical Center. We conclude that the trial court abused its discretion in excluding the expert declaration submitted by appellant in opposing the summary judgment motion, and that the declaration is sufficient to raise a triable issue of material fact. We therefore reverse.

Geraldo Toledo Toca (Toca) was convicted of failing to register as a sex offender as required by Penal Code section 290.015, subdivision (a)[1] (count 1); failing to update sex offender registration annually in violation of section 290.012, subdivision (a) (count 2); and giving false information to a police officer in violation of section 148.9, subdivision (a) (count 3). He was sentenced pursuant to the Three Strikes Law. Toca challenges his conviction on count 1 based on insufficiency of the evidence and ineffective assistance of counsel. In addition, he claims that the trial court erred by not striking at least one prior conviction allegation. We reverse the conviction under section 290.015, subdivision (a). In all other respects, we affirm.

Defendant Richard Lavel Hill appeals from a judgment of conviction entered after a jury found him guilty of assault with intent to commit sexual penetration by force or fear during the commission of a burglary (Pen. Code, § 220, subd. (b)), first degree robbery (id., § 211), and first degree burglary (id., § 459). The trial court found true the allegations defendant had suffered two prior serious felony convictions (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12) and had served four prior prison terms (id., § 667.5, subd. (b)). The court sentenced defendant to state prison for a term of 37 years to life.
On appeal, defendant challenges the admission of evidence of uncharged sexual misconduct and instruction on the evidence. He also claims ineffective assistance of counsel and cumulative error. We affirm.

Gayle M. Gabriel appeals from the judgment on reserved issues in this marital dissolution action. She contends the family court committed reversible error in imputing an annual earning capacity of $180,000 to her when calculating child support and in failing to require her ex-husband, Anthony E. Gabriel, to obtain a life insurance policy benefitting their children. We affirm.

The minor V.P. appeals from a juvenile court dispositional order removing him from his mother’s custody. The minor’s appellate counsel has raised no issues, but asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to the minor, result in reversal or modification of the dispositional order. (See People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Counsel declares the minor was notified of his right to file a supplemental brief, but the minor has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the juvenile court’s order.

In this appeal we are presented with another equal protection challenge to the prospective application of 2011 amendments to Penal Code section 4019, which had the effect of removing the exclusion of certain specified classes of prisoners, including defendant, from the benefit of a more favorable formula for awarding presentence conduct credits. We again conclude that granting an increase in conduct credits only to prisoners confined for a crime committed on or after October 1, 2011, the effective date of the statute, does not offend equal protection principles, and affirm the judgment.

This appeal comes before us following defendant’s admission of the offenses of carrying a concealed weapon (Pen. Code, former § 12025) and misdemeanor vandalism (Pen. Code, § 594), charged in two separate delinquency petitions (Welf. & Inst. Code, § 602, subd. (a)).[1] The sole contention presented by defendant is that a $10 DNA penalty assessment imposed against him must be stricken. We agree and modify the judgment.

This appeal has been taken by appellant Carole Grappo, a trust beneficiary, from an order that granted respondent, the appointed successor trustee of the trust, compensation based on “a ‘reasonableness’ standard,” rather than one percent of the value of the trust. We conclude that the trial court erred by denying appellant’s petition to restrict respondent’s compensation to one percent of the trust value, and reverse the judgment.

Emma Court, LP, a California limited partnership, and Mark Migdal, individually and as trustee of the Mark Migdal 2000 Revocable Trust (collectively, property owners), filed a complaint in 2009 against the United American Bank and the Lighthouse Bank, California banking associations (collectively, the banks), for, among other things, injunctive relief and rescission. On May 29, 2009, no party appeared at the hearing and the trial court adopted its tentative ruling denying property owners’ request for a preliminary injunction. On June 1, 2009, the trial court entered an order denying the preliminary injunction and––at the banks’ oral ex parte request––adding language waiving the requirements of Civil Code section 2924g, subdivision (d).[1] Property owners filed a notice of appeal from this order and we dismissed the appeal on March 16, 2011, for failure to file a brief in this court.
In 2011, property owners filed a motion in the trial court to vacate the order of June 1, 2009. The trial court denied this motion. Property owners appeal and claim that they may appeal from the order denying their motion to vacate because it affirmed the order of June 1, 2009, and this earlier order, according to property owners, is void. We conclude that the June 2009 order is not void and property owners are appealing from a nonappealable order. Accordingly, we dismiss this appeal.

Latonya Finley sued State Farm Fire & Casualty Insurance Company[1] (State Farm) after it denied her claim under a renter’s insurance policy. State Farm moved for, and the trial court granted, summary judgment on the ground Finley made misrepresentations both during the application process and claim investigation that voided her policy. Finley has appealed. We affirm the judgment on the ground there is no triable issue of material fact and State Farm is entitled to judgment as a matter of law.

After a three-day trial, a jury found defendants and respondents not responsible for damage to appellant’s Nissan automobile after a collision in Berkeley between that car and a construction vehicle driven by respondent Eiseman. Appellant appeals, claiming that (1) the trial court erred in various evidentiary rulings and (2) the trial judge was biased against her. Respondents argue that we should reject both of these contentions, and also dismiss the appeal because of a late-filed opening brief by appellant. We will not dismiss the appeal, but we do affirm the judgment of the trial court.

A modification decision.