CA Unpub Decisions

D.C. (Mother) was married to Na.S (Father) when N.S. was born. R.J., the appellant in this case, claimed to be N.S.’s biological father. At a contested jurisdictional/dispositional hearing, the juvenile court found that R.J. was the biological father, but not the presumed father, and found that Father was the presumed father. R.J. now claims on appeal as follows:
1. The juvenile court committed reversible error when it failed to find he qualified as a presumed father under Family Code section 7611, subdivision (d).
2. The jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b) that he had a history of drug use was not supported by the evidence.
3. The juvenile court should have granted him, as the biological father, reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (a).
4. Notice under the Indian Child Welfare Act (ICWA) was deficient.

Following a jury trial, defendant Anthony Wayne Lucas was convicted of residential burglary. (Pen. Code, § 459.[1]) In a bifurcated proceeding, the trial court found true the allegation that he suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served three prior prison sentences (§ 667.5, subd. (b)). He was sentenced to state prison for a total term of 35 years to life. He appeals, contending the trial court erred in refusing to instruct the jury on the lesser related offenses and to strike his priors. Finding no errors, we affirm.

After a jury trial, defendant was found guilty on one count of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally and intentionally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)) and a gang enhancement (Pen. Code, § 186.22, subd. (b)), and one count of gang participation (Pen. Code, § 186.22, subd. (a)). Defendant was sentenced to a total of 50 years to life in prison, plus the usual fines and fees.
Defendant now contends:
1. Defense counsel rendered ineffective assistance by failing to request instructions on voluntary intoxication.
2. Punishment for both murder and causing death by discharging a firearm violated double jeopardy.
3. Punishment for both murder and gang participation violated Penal Code section 654 (section 654).
4. The trial court erroneously failed to award sufficient presentence custody credit.
The People concede that the sentence violates section 654. We agree; we will modify the sentence so as to correct this error. While this appeal was pending, the trial court remedied the error regarding presentence custody credit. Otherwise, we find no error. Hence, we will affirm the judgment as modified.

Defendant Paul Little Bear Andreas appeals his judgment of conviction following a guilty plea, denial of a motion to withdraw that guilty plea, and issuance of a certificate of probable cause. He contends the trial court (1) erred when appointing defense counsel without holding a Marsden[1] hearing, (2) abused its discretion when it denied defendant’s motion to withdraw his guilty pleas, and (3) improperly imposed the restitution fines.

Police officers pulled over defendant Reymond Javier Sandoval because he failed to signal before a left turn and because he had a flickering brake light. The traffic stop led to a search in which 0.34 grams of cocaine were found.
Defendant contends that the traffic stop was invalid, because: (1) he was not required to use his turn signal, because no other vehicle was affected by his movement; and (2) a flickering brake light, standing alone, is not illegal.
We disagree. There was substantial evidence that defendant’s left turn at least potentially affected the police officers’ vehicle. Moreover, because defendant’s brake light was flickering, there was probable cause to believe that it was malfunctioning, which is illegal. Accordingly, we will affirm.

Jason Friend appeals from orders regarding child support, spousal support, visitation, custody, and attorney fees. He contends: (1) the trial court abused its discretion in conducting a trial on child custody and visitation when (a) court-ordered mediation had not been completed and (b) his former wife’s failure to follow court orders deprived the court of a therapy report before trial; (2) the trial court erred in ordering child support to commence retroactive to a prior support order; (3) the trial court erred in modifying child support when the issue was not before the court, and he was not properly given notice; (4) the trial court abused its discretion in imputing self-employment income to him for purposes of determining child support; (5) there was no substantial evidence to support an imputation of earning capacity to him; (6) the trial court erred in imputing self-employment income to him simultaneously with unemployment income; (7) there was no substantial evidence to support an imputation of income to him based on property in foreclosure at time of trial; (8) there was no substantial evidence to support an imputation of income to him based on property in Texas; (9) there was no substantial evidence to support the trial court’s factual findings under Family Code section 4320; (10) the trial court abused its discretion in making a permanent spousal support order; and (11) the trial court abused its discretion in ordering him to pay $4,000 for Olga’s attorney fees.
We conclude the trial court exceeded its jurisdiction in retroactively modifying the prior child support order, and the trial court’s findings as to Jason’s income are not supported by substantial evidence. We also conclude the trial court abused its discretion in refusing to modify spousal support, and the errors also affected the attorney fee award. We therefore reverse the trial court’s child and spousal support orders and attorney fee order. We find no error in the orders concerning child custody and visitation.

Defendant Rafael Ruiz Landa appeals from his conviction of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He contends: (1) the trial court erred by failing to instruct the jury sua sponte about the defense of mistake of fact; (2) the case should be remanded with directions to the trial court to specify the number of days of conduct credit awarded; (3) the processing fee under Penal Code section 1205, subdivision (d) should be stricken; (4) the trial court erred in failing to provide him a hearing under Penal Code section 1203.1b to determine his ability to pay a $505 fee for presentence investigation and probation report preparation; and (5) the minutes of the sentencing hearing should be amended to reflect that the trial court stayed the restitution fine under Penal Code section 1202.4. The People agree that remand is necessary for the trial court to determine defendant’s conduct credits; the processing fee under Penal Code section 1205, subdivision (d) must be stricken; and the minute order for the sentencing hearing must be amended to reflect that the restitution fine was stayed. On our own motion, we have determined that the trial court erred in staying the facilities assessment fee and court security fee for count 2. We find no other prejudicial errors.

Defendant Jose R. Moncada appeals from his conviction of involuntary manslaughter (Pen. Code,[1] § 194) and child abuse homicide, i.e., inflicting injury on a child under eight years old, which is reasonably likely to cause great bodily injury, causing death (§ 273ab). Defendant contends his involuntary manslaughter conviction should be reversed because a heightened showing of proximate cause is required to trigger criminal liability for a death that occurs more than three years after an unlawful act. He next contends the trial court erred in denying his motion to acquit because the trial court failed to consider the rebuttable presumption that a death is not criminal when it occurs more than three years after the defendant’s act; the death was not a direct, natural, and probable consequence of his actions; and the stomach rupture that was the immediate cause of death was an intervening independent cause. Finally, he contends that because the child was more than eight years old when he died, defendant did not violate section 273ab as a matter of law. We find no error, and we affirm.

Teresa G. appeals orders entered at a dispositional hearing held pursuant to Welfare and Institutions Code section 361. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.

A court convicted David Bradley Woods of one count of arson of a structure or forest (Pen. Code,[1] § 451, subd. (c)). The court also found true four alleged prison priors (§§ 667.5, subd. (b), 668) and an alleged strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced Woods to prison for a total of 10 years. The court imposed the base middle term of four years then doubled the sentence to eight years for the prior strike conviction. After striking two of the four prison priors, the court imposed consecutive one-year terms for the remaining two prison priors.
Woods appeals, contending the court abused its discretion in imposing the middle term when it failed to consider his mental health condition as a mitigating factor at sentencing. We find no abuse of discretion and affirm the judgment.

A San Bernardino County jury convicted William Andrew Bollinger of committing a total of eight sexual offenses against his two younger sisters. Specifically, the jury convicted him of four counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code,[1] § 288, subd. (b)(1), hereafter § 288(b)(1); counts 3 through 6), and four counts of committing a nonforcible lewd act upon a child under the age of 14 (§ 288, subd. (a), hereafter § 288(a); counts 7 through 10). Bollinger committed counts 3 and 4 against the older sister (Sister 1), and counts 5 through 10 against the younger sister (Sister 2). The jury also found true an allegation under section 667.61, former subdivision (e)(5)[2] (hereafter section 667.61(e)(5)) that in committing the section 288(b)(1) offenses charged in counts 3 through 6, Bollinger committed the offenses against multiple victims within the meaning of the One Strike law codified in section 667.61 (see People v. Wutzke (2002) 28 Cal.4th 923, 926).[3]

A modification decision.

A jury convicted appellant Fernando Guerra with one count of shooting at an inhabited dwelling, one count of shooting at an unoccupied vehicle, and two counts of assault with a firearm. The jury also found gang allegations to be true. Appellant contends (1) the trial court abused its discretion when it ordered him to wear a stealth belt tying him to his chair; and (2) there was insufficient evidence to convict him of count 1, shooting at an inhabited dwelling. We affirm.

Respondent Eric Sherf purchased a BMW automobile from appellant Rusnak/Westlake pursuant to a retail installment sale contract (Contract).[1] Sherf filed a lawsuit alleging unlawful business practices relating to the purchase, and Rusnak moved to compel arbitration under an arbitration agreement in the Contract. The trial court denied the motion ruling that the arbitration agreement included an unenforceable class action waiver, and that Sherf's claim for injunctive relief was not subject to arbitration. Rusnak appeals the denial of its motion. Rusnak contends that the trial court erred because in AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. 1740] (Concepcion), the United States Supreme Court held that the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts state law prohibiting a consumer from waiving class action rights and injunctive relief rights in an arbitration agreement.
We hold that Concepcion invalidates California authority prohibiting the waiver of class action rights in an arbitration agreement and that Sherf's waiver of the right to bring a class action is binding and enforceable. As to his claim regarding arbitration of injunctive relief, we conclude that Sherf has conceded the issue by failing to address it in his appellate brief.
In light of the above, we reverse and remand for further proceedings concerning whether the arbitration agreement is unconscionable under general principles of California law.