CA Unpub Decisions

Wenenta M. Kosmala, as trustee in bankruptcy for the Estate of Merlyn B. Lans, appeals from the judgment entered against Lans in her lawsuit against Lowe’s HIW, Inc. (Lowe’s) and a roofing contractor, DominicVasquez (sometimes collectively referred to as the defendants). Appellant raises four issues: First, she argues that neither Lowe’s nor Vasquez were properly licensed to complete the work on Lans’ home, and thus Lans was entitled to restitution of all sums paid for the work; second, she argues the undisputed evidence demonstrated Vasquez’s work on the atrium caused damage to Lans’ home; third, she claims the court improperly allowed the jury to hear evidence of “collateral source” payments to Lans, which was prejudicial; and fourth, appellant argues the court improperly limited Lans’ evidence pertaining to damages, which was also prejudicial. We conclude these arguments lack merit, and we affirm the judgment.

Ricardo D., the alleged father of two-year-old Nicholas, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing[1] as to Nicholas. Ricardo requests that this court direct the juvenile court to place Nicholas in his custody. We deny the petition.

Plaintiffs’ wrongful death action includes the allegation that the driver of the pickup truck that struck the deceased’s vehicle was “acting as an agent on behalf of and at the request of” (unnecessary capitalization omitted) defendant Pavestone Company, LLC (Pavestone). Pavestone filed a general demurrer on the ground the driver was not its agent. The superior court sustained the demurrer without leave to amend and entered judgment in favor of Pavestone.
Plaintiffs appealed, arguing their allegations were sufficient to establish agency for purposes of demurrer. The California Supreme Court has addressed the allegations necessary to plead agency: “[A]n allegation of agency as such is a statement of ultimate fact. Consequently further allegations explaining how this fact of agency originated become unnecessary.” (Skopp v. Weaver (1976) 16 Cal.3d 432, 439 (Skopp).) Applying this rule, we conclude that plaintiffs’ allegation that the driver acted as an agent of Pavestone is sufficient to withstand demurrer. We therefore reverse the judgment.

In this matter, we have reviewed the petition and considered the record. Although invited to do so, real party in interest has not filed a response. We have determined that resolution of the matter involves the application of settled principles of law, and that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving this matter. We therefore issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
With certain exceptions, the procedures for determining whether a “developmentally disabled” defendant is incompetent to stand trial are the same as a non-developmentally disabled defendant. Thus, the question of mental competence is determined at trial by a court or jury under Penal Code section 1369[1] at which both the defendant and the prosecution may present evidence and argument. (§ 1369, subd. (b)(1)-(e).) It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that he is mentally incompetent. (§ 1369, subd. (f).)

On September 21, 2011, a felony complaint charged defendant and appellant Robert Edward Lafond with two counts of assault under Penal Code[1] section 245, subdivision (a)(1), on Jane Doe (counts 1 & 3); one count of violating Jane Doe’s personal liberty under section 236 (count 2); and two counts of misdemeanor child endangerment under section 273a, subdivision (b) (count 4).
On October 27, 2011, defendant withdrew his not guilty plea and entered a plea of guilty on count 2, a violation of section 236, in exchange for a dismissal of the remaining counts.
The trial court sentenced defendant to county jail for the low term of 16 months under section 1170, subdivision (h). The trial court then awarded defendant credit for time served of 40 actual days plus 20 days under section 4019, for a total of 60 days.[2] The court also imposed various fines and fees.
On December 21, 2011, defendant’s notice of appeal, which included a request for a certificate of probable cause, was received by the trial court. The trial court granted the certificate of probable cause on January 3, 2012. The notice of appeal was officially filed on January 4, 2012.
On January 30, 2012, defendant filed a motion to withdraw his guilty plea. He argued that he had not been fully advised and did not “fully understand the parole consequences of this plea” in that it would constitute a violation of a prior grant of parole. The court denied the motion on February 21, 2012. On March 19, 2012, defendant filed another notice of appeal.

On June 27, 2011, a felony complaint charged defendant and appellant Gary Wayne Green with theft under Penal Code[1] section 484, a felony (count 1). The complaint also alleged two prior prison term enhancements under section 667.5, subdivision (b). The complaint further alleged that defendant had been convicted of a serious and violent felony within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
On October 27, 2011, defendant pled guilty to count 1 and admitted the strike allegation. The complaint formed the factual basis for defendant’s guilty plea. The parties agreed that defendant would be sentenced to the low term of 16 months, doubled under the three strikes law for a total of 32 months. The trial court sentenced defendant to the agreed-upon term of 32 months and dismissed the prior term allegations.
Thereafter, the trial court imposed various fines and fees, and awarded defendant custody credits of actual time of 14 days and six days under section 4019.

On June 9, 2010, a complaint charged defendant and appellant Orfil Arteaga with selling a controlled substance, methamphetamine, under Health and Safety Code section 11379, subdivision (a) (count 1); and possession of a controlled substance, methamphetamine, under Health and Safety Code section 11378 (count 2). Moreover, the complaint alleged that defendant was in violation of probation in case No. RIM536504.
That same day, defendant pled guilty to count 2. Defendant also admitted that he violated probation. The plea included an agreement that the remaining count would be dismissed, and defendant would be sentenced to 120 days. Immediately after the plea, the trial court granted defendant formal probation for three years and sentenced defendant to the sheriff’s custody for 120 days. The trial court awarded nine days of presentence credits, consisting of five actual days and four days of conduct credits under Penal Code section 4019.
On January 25, 2011, defendant admitted that he violated term 1 of his probation, to obey all laws, ordinances, and court orders; probation was continued on the same terms and conditions.
On September 13, 2011, defendant admitted that he violated his probation, and the court revoked his probation order.
On October 4, 2011, the trial court imposed the low term of one year four months in county jail for count 2. The court also awarded defendant a total of 162 presentence credits.
On November 18, 2011, defendant filed a timely notice of appeal.

Defendant and appellant Arrion Lee Crew, Jr., appeals his conviction on two counts of first degree murder with the special circumstance of multiple murder. We will affirm the judgment.

A jury found defendant and appellant, Jeffrey Allen Mahle (hereafter defendant), guilty as charged of attempted willful, deliberate, and premeditated murder (count 1); inflicting corporal injury resulting in a traumatic condition on a spouse (count 2); and assault with a deadly weapon, namely a baseball bat (count 3). The jury also found true the special allegations in connection with counts 2 and 3, that defendant inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a),[1] and in connection with count 2 that defendant personally used a deadly weapon in the commission of the offense within the meaning of section 12022, subdivision (b). The jury also found true a special allegation that defendant had served a prior term in prison within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to serve an indeterminate term of seven years to life in state prison on count 1, his attempted murder conviction. The trial court imposed sentences on counts 2 and 3, but stayed execution of those sentences under section 654.

Mother Keri W. challenges juvenile court orders denying her Welfare and Institutions Code section 388 petition without a hearing and terminating her parental rights over children Evan W. and L.K.[1] L.’s father, John K., joins in mother’s appeal. [2] We affirm the juvenile court orders.

Willie B. (father) appeals from juvenile court orders removing his son Jeremiah B. from his custody and implementing a reunification plan. On appeal, father contends: (1) substantial evidence did not support the removal order; (2) the trial court erred in “restricting” father’s visits with Jeremiah and in ordering father to attend a domestic violence program; (3) the trial court erred in ordering father to undergo a psychological evaluation pursuant to Evidence Code section 730 (section 730); and (4) the trial court erred in issuing a permanent restraining order. We affirm the juvenile court orders.

Appellant Larry M. appeals from the order terminating his parental rights as to the child Kristopher D.[1] He contends that the juvenile court acted without subject matter jurisdiction because there was no sustained Welfare and Institutions Code section 300[2] petition on file against him. He further contends that a number of procedural omissions invalidate the termination order. Finally, he claims that substantial evidence did not support the order.
Though we must conditionally reverse the order terminating parental rights because of the juvenile court’s failure to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), we reject appellant’s challenges to the order. The juvenile court properly assumed subject matter jurisdiction over Kristopher with the filing of a section 300 petition against his legal guardian, which it later amended to include a count against appellant pursuant to section 300, subdivision (g). As a biological rather than a presumed father, appellant was not entitled to the procedural safeguards he argues were lacking. In any event, appellant forfeited his right to challenge any procedural deficiencies and any omission in the advisements appellant received was harmless error. Finally, the juvenile court made the appropriate findings for and substantial evidence supported the termination of appellant’s parental rights.

Davon Carey Griffith appeals from the judgment entered following his conviction by a jury for first degree robbery and first degree burglary with related firearm-use findings. No meritorious issues have been identified by Griffith’s appointed counsel or by our own independent review of the record and analysis of the challenges to the sufficiency of the evidence presented by Griffith in a handwritten supplemental brief. We affirm.

Appellant Lyn Deandre Warren appeals from the judgment following a jury trial in which he was convicted of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury also found true the allegations that appellant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), and that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced appellant to 50 years to life in state prison, calculated as 25 years to life for the murder, plus a consecutive term of 25 years to life for the firearm enhancement. The trial court imposed and stayed a 10-year term for the gang enhancement.
Appellant contends the trial court committed error in instructing the jury. Specifically, he argues the trial court (1) provided the jury with misleading homicide instructions denying him a fair trial on the issue of malice, (2) failed to provide the jury with adequate instructions on second degree murder despite the jury’s request for such an instruction, and (3) improperly defined the elements of a criminal street gang. Appellant also contends the trial court erred in imposing and staying a 10-year sentence on the gang enhancement because he was sentenced to an indeterminate life term. We agree that the trial court improperly instructed the jury on the elements of a criminal street gang and made sentencing errors, but affirm the judgment in all other respects.