CA Unpub Decisions

Defendant Jesus Santiago Franco pleaded no contest to one count of making threats to commit a crime resulting in death or great bodily injury (Pen. Code, 422)[1] and three counts of violating a protective order ( 273.6). The trial court suspended imposition of sentence and placed him on probation subject to various fines, fees, and conditions. On appeal, he challenges the imposition of a probation condition requiring him to submit to warrantless searches and seizures. Court affirm.

After defendant Bi Van Vo pleaded no contest to various drug-related offenses, he was sentenced to a term of six years in prison, in accordance with his plea agreement. At the sentencing hearing, the trial court also imposed a concurrent county jail sentence of 90 days on one of the charges, and on appeal, Vo contends this was improper since the trial court had previously dismissed the charge in question. Court disagree. Though a colorable argument can be made that the trial court made an oral pronouncement dismissing the charge in question, any such dismissal would be invalid since no reasons therefor were entered in an order on the minutes as required by Penal Code section 1385. We resolve the conflict between the reporters transcript and the clerks transcript and find that the court intended to amend the charge to a misdemeanor, not dismiss it. Thus the concurrent county jail sentence was proper, and we shall affirm the judgment.

Following a hearing in July 2008, the Board of Parole Hearings (Board) found petitioner James A. Sauers unsuitable for parole. Sauers petitioned the superior court for a writ of habeas corpus, alleging that the Boards decision denied him due process of law. The superior court granted the petition, concluding that the matter should be remanded to the Board for a new hearing conducted in conformance with the standard set by the Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), which clarified the law pertaining to parole denials. Respondent, John Marshall, Warden at the California Mens Colony (Warden) appeals from that order. Court conclude that the superior court was correct in remanding the matter to the Board. Accordingly, Court affirm.

Andrew Hantges, real party in interest, sued his attorneysa law firm and two individualsin Santa Clara County Superior Court for professional negligence. The two individual defendants, Andrew J. Haley and Andrew S. Pauly (sometimes collectively, defendants), filed a motion to transfer venue. They contended that Santa Clara County was not the proper venue for the action because they both resided in Los Angeles County. Hantges filed opposition and respondent court denied the motion. Defendants filed a statutory petition for writ of mandate challenging the courts denial of the motion to change venue, pursuant to Code of Civil Procedure section 400. For the reasons discussed below, we conclude that the court abused its discretion in denying defendants motion to transfer venue. Accordingly, Court will grant the petition for writ of mandate and direct the court to enter an order transferring the case to the Superior Court of California, County of Los Angeles.

In 1992, appellant Bernard Love, a Denver, Colorado bus driver, obtained a federal license for a multichannel multipoint distribution service (MMDS)[1] in a Federal Communications Commission (FCC) lottery. With the assistance of his agent, Kingswood Associates, Inc. (Kingswood),[2] in 1993 Love entered into a five-year license lease agreement with Gulf American, Inc. (Gulf American),[3] who in turn assigned its interest in the lease agreement to respondent Bay Area Cablevision, Inc. (Bay Area Cablevision). In 1996, Kingswood ceased sending Love his share of the lease payments due under the lease agreement. On January 14, 2008, Love filed a complaint alleging that in 1996 defendant Bay Area Cablevision fraudulently obtained an assignment of his interest in the MMDS license without his knowledge. He sought a declaration that he was the true owner of the MMDS license and disgorgement of profits.
On appeal, Love argues that his January 14, 2008 complaint was timely filed because the three-year statute of limitations was tolled under the fraudulent concealment doctrine until 2006, when an attorney informed him that his interest in the MDSS license had been assigned to Bay Area Cablevision. For the reasons stated below, we determine that the face of the amended complaint shows as a matter of law that Loves action against Bay Area Cablevision was untimely filed under section 338(d) more than three years after Love had notice of circumstances sufficient to put a reasonable person on inquiry. (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902.)

Defendant Dennis Allan Dethleff was arrested on March 24, 2009, for a probation violation. In a subsequent search of defendants residence police officers uncovered a vial containing approximately three grams of methamphetamine, paraphernalia for smoking methamphetamine, numerous unused baggies, and sheets of paper listing prices for methamphetamine. Defendants cell phone received several messages from callers asking to purchase methamphetamine. Defendant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, 11378), a felony. The information included the allegation that defendant had previously been convicted of the same crime, which, under Health and Safety Code section 11370.2, subdivision (c), required an additional consecutive sentence of three years and, under Penal Code section 1203.07, subdivision (a), precluded probation. The information further alleged that defendant had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

Plaintiff Citizens for Civic Accountability appeals a postjudgment order denying its request for private attorney general attorney fees in its underlying mandamus proceeding. On October 14, 2009, in an unpublished opinion, this court ruled in favor of plaintiff and reversed the judgment in the underlying action on the merits. (Citizens for Civic Accountability v. Town of Danville(Oct. 14, 2009, as modified Nov. 9, 2009, A121899.) We remanded with directions to the trial court to: (1) enter a judgment granting plaintiffs writ of mandate petition, and (2) issue a peremptory writ of mandate directing defendant Town of Danville to (a) set aside its certification of the Mitigated Negative Declaration for the project, and (b) prepare an environmental impact report in compliance with the California Environmental Quality Act (Pub. Resources Code, 21000 et seq.). In accordance with the views expressed in our opinion, the courts postjudgment order denying plaintiff attorney fees must also be reversed. On remand, the trial court is ordered to rehear plaintiffs motion for attorney fees. Plaintiff is entitled to costs on appeal.

Defendants and appellants Michele Blackmon and Paul Bailey (appellants) appeal from a money judgment entered in favor of plaintiff and respondent Ned McNamara following a nonjury trial. Appellants contend various findings are not supported by substantial evidence. Court affirm.

A.N. filed a negligence-based complaint alleging the County of Los Angeles was liable because personnel at the juvenile hall failed to protect him from a sexual assault by another juvenile inmate. As the trial court was preparing to call a panel of prospective jurors, the County filed a motion for judgment on the pleadings (JOP) on the ground that it was immune from liability given the nature of the negligence-based claims alleged in A.N.s complaint. The trial court granted the Countys motion for JOP, and entered an order dismissing A.N.s action. A.N. then filed this appeal. Court agree with the trial court that the allegations in A.N.s complaint place his case within the scope of the immunity from liability afforded the County under Government Code section 844.6, subdivision (a) (section 844.6(a)). Court also agree with the trial court that A.N. may not amend his complaint to allege facts placing his case outside the scope of the Countys immunity. More specifically, we agree with the trial courts ruling that, because A.N.s pre-lawsuit government claim (see 900 et seq.) did not include any facts informing the County that he sought damages arising from an alleged failure to summon medical care ( 845.6), he is barred from including such allegations in any ensuing civil complaint. Finally, we agree with A.N. that he should have been granted leave to amend his complaint to allege a violation of a policy against so-called double bunking at the juvenile hall, but find the error is harmless as to the County because that claim, too, is barred by the immunity afforded the County under section 844.6(a). Finally, Court find the JOP should not have been granted as to an individual defendant who allegedly caused A.N.s injury. The order of dismissal is affirmed in part and reversed in part.

Tiffany Lynn Hill appeals from an order denying without prejudice her petition for relief from a five-year prohibition against owning or possessing firearms imposed pursuant to Welfare and Institutions Code section 8103, subdivision (f), after she had been detained for mental health treatment and evaluation. ( 5150.) Court remand for a new hearing.

Defendant Frank Harris appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder of Sherman Clark and attempted premeditated murder of T.B.[1] He contends the trial court: (1) erred in denying his Batson-Wheeler motion and (2) interfered with the jurys deliberations, denying him due process. Court affirm.

Mark L. Schneider appeals from a post-judgment order in this dissolution proceeding awarding his former wife, Nicole E. Schneider, $225,000 in need-based attorney fees and costs pursuant to Family Code section 2030, subdivision (a)(1), and $10,000 in fees and costs as sanctions under section 271. Court affirm.

Defendant, Alan Williams, appeals from his convictions for two counts of willful, deliberate and premeditated attempted murder (Pen. Code,[1] 187, subd. (a), 664) and the jurors gang and firearm use findings. ( 186.22, subd. (b), 12022.53, subds. (b), (c), (d), and (e)(1).) Defendant argues that the trial court improperly admitted evidence of a suggestive photo identification and his post-arrest statements and he was awarded an inadequate number of presentence custody credits. Court increase his presentence credit award but otherwise affirm the judgment.

Israel Padilla appeals from the judgment following his guilty plea to second degree burglary of a vehicle (Pen. Code, 459),[1] his admission of one prior conviction within the meaning of the Three Strikes law ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and his admission of three prior prison terms ( 667.5, subd. (b)). At sentencing, the trial court imposed a prison sentence of three years eight months consisting of the low term for the burglary doubled as a second strike, plus a consecutive one-year term for one of the section 667.5 subdivision (b) prior prison terms. The court struck the two other prior prison term allegations. The following facts are taken from the probation report. On March 5, 2008, police saw Padilla looking into parked cars in a parking structure. Police found items stolen from other cars in Padillas car. When arrested at the scene, he denied knowledge of the stolen property, but later admitted culpability.