CA Unpub Decisions

On December 11, 2009, petitioner made its first appearance in the action when it filed its answer to the complaint for wrongful death. Twelve days later, on December 23, 2009, petitioner filed a peremptory challenge to the trial judge, stating in counsels declaration that the assigned judge for all purposes, including trial, is prejudiced against the defendant, and/or their attorneys, or the interests of the defendant, so that this declarant cannot or believes that defendant cannot have a fair and impartial trial before this judge. (Code Civ. Proc., 170.6.)

In this case, Court are presented with the question whether there was sufficient evidence of a criminal street gang as defined under the California Street Terrorism Enforcement and Prevention Act (Pen. Code, 186.20 et seq. (STEP Act))to support a gang enhancement found to be true and a conviction for the separate offense of active participation in a criminal street gang.Court find insufficient evidence and reverse the judgment.

Defendant George Carrasco was arrested and charged with making a criminal threat (Pen. Code, 422) and resisting a police officer (Pen. Code, 69) after he shouted racial epithets and threatened the owner of an Indian restaurant whose restroom he wanted to use. When the arresting officer attempted to take defendant into custody, defendant shouted verbal threats at the officer as well. Defendant appeals from a judgment entered after he pleaded no contest to both charges and admitted the allegations that he had one strike prior, a serious felony conviction and a prison prior arising from the same 17 year old robbery conviction. (Pen. Code, 1170.12, 667, subd. (a), 667.5, subd. (b).) The defendant moved to dismiss the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and also moved to reduce the charged crimes to misdemeanors pursuant to Penal Code section 17, subdivision (b). After considering arguments presented by the defense and prosecution and allowing defendant to make a statement, the trial court granted the Romero motion, but denied the motion to reduce the charges to misdemeanors. The trial court sentenced defendant to seven years in prison, awarded 327 days of custody credit, and imposed a variety of monetary fines and fees. This court granted defendant relief from default for failing to timely file a notice of appeal and this appeal ensued.

Floyd Trebil appeals from a summary judgment entered against him on his petition for a writ of administrative mandamus. The court granted the summary judgment on the ground that Trebils petition was filed beyond the 90-day time limit specified in Code of Civil Procedure section 1094.6, and Trebil concedes this is true. But he argues that, in fairness, his time to file the petition should have been extended five additional days, to account for the fact that notice of the decision he sought to overturn had been served upon him by mail, rather than personally delivered. Trebil makes this argument despite the fact the statute itself explicitly rejects any such extension. He contends the statutes specific rejection of the extension cannot be reconciled with the general rule affording such extensions, which is set forth in Code of Civil Procedure section 1013.

Isabel H. (mother) petitions for a writ of mandate in the dependency case of her daughter. Mother claims the juvenile court abused its discretion and violated her right to due process of law when it denied her counsels request for a continuance under Welfare and Institutions Code section 352, subdivision (a),[1] to secure mothers appearance at a contested 12-month review hearing ( 366.21, subd. (f)). We deny the petition. The court was within its discretion in denying the continuance based on the absence of good cause.

A modification decision.

T. S. appeals from a dispositional order of probation upon his admission of 11 counts of misdemeanor vandalism (Pen. Code, 594, subd. (b)(1), (2)). He contends that the juvenile court erred in denying his motion to suppress evidence because his mother did not have the authority to consent to a search of his belongings. He also argues that the conditions of probation prohibiting association with known gang members, and restricting his use of communication devices violate his constitutional rights of freedom of speech and expression. Court affirm.

Appellant Aloysius McElroy appeals from the judgment entered after his petty theft and second degree commercial burglary convictions. His counsel raises no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

After repeatedly violating the terms and conditions of his probation, appellant Adolphus Majorss probation was revoked. He was sentenced to state prison, and various fines and penalties were assessed against him in each of the actions at issue here, including a laboratory service fee under Penal Code section 1463.14, subdivision (b), and a court construction fine of $135, pursuant to Government Code section 70372. Court conclude the lab fee was assessed under an inapplicable statute, and the courts calculation of the amount of the construction fine was both (1) premised, at least in part, on restitutionary fines and security fees which may not form a basis for a penalty assessment, and (2) derived from an erroneous formula. Court also conclude the trial court failed to assess probation revocation fines, which are due and payable. Court will strike the order assessing the inapplicable lab fee, and order the trial court to correct the abstract of judgment to reflect the proper amount of the construction fines and the imposition of probation revocation fines. Court shall affirm the remainder of the judgment as modified.

A judgment creditor prevailed in a creditor's suit pursuant to Code of Civil Procedure section 708.210 to enforce a money judgment against real property held by a third person. The sole issue on appeal is whether the suit is barred by the statute of limitations in section 708.230.Court affirm.

Lexington National Insurance Corporation (Lexington), a surety, appeals the trial courts order denying its motion to vacate bail bond forfeiture and to reinstate and exonerate a bail bond. We reverse because the criminal defendants custody in Virginia constituted a temporary disability, within the meaning of Penal Code section 1305, subdivision (e),requiring that the trial court shall order the tolling of the 180-day period [for vacating forfeiture and exonerating the bond] during the period of temporary disability.

A probationary firefighter sued an individual who wrote a letter to the fire department chief urging him to investigate the firefighters off duty verbal altercation with a high school student. He alleged two causes of action: defamation and intentional infliction of emotional distress. The trial court found that the letter was a communication to a governmental official which preceded official proceedings and as such was absolutely privileged. Accordingly, the trial court granted the individuals motion for summary judgmentanddismissed him from the action. Court affirm.

The juvenile court sustained a petition alleging that B.R. (minor) committed the offense of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).The juvenile court found that minor was a person described by Welfare and Institutions Code section 602 and ordered him home on probation. The juvenile court set a maximum confinement time of four years.
minor appeals on the grounds that: (1) the juvenile court erred by failing to declare on the record whether minors wobbler offense was a felony or a misdemeanor, and the matter must be remanded; (2) if, on remand, the juvenile court declares the offense a misdemeanor, the order requiring minor to provide a DNA sample should be stricken; (3) the juvenile court erred in setting a maximum confinement time, since minor was not removed from the physical custody of his parents, and the maximum term set must be stricken. Court modify the trial courts order and remand with directions.

A judgment creditor moved to amend its default judgment against Gardena Physicians Hospital, Inc. (GPH) to add respondent Gardena Acquisitions, GP (GA) as a judgment debtor, on the grounds that GA was the alter ego or a mere continuation of GPH. The judgment creditor argued that an order in an unrelated action, which states that GA is the successor of GPH, served as collateral estoppel, and compelled the courts addition of GA as a judgment debtor in this action. The trial court denied the motion. Court affirm.