CA Unpub Decisions

Shanna and Charles Hamm were married in 1998. There are three children of the marriage. The marriage was dissolved in 2009. Initially both parties shared legal and physical custody of all three children. In 2016, the oldest child elected to live with Shanna and the middle child elected to live with Charles. Only the youngest child splits his time between both parents. The oldest child became emancipated in October 2017. The Ventura County Department of Child Support Services (the Department) has been providing services to the children since 2008.
Charles brought a motion in his family law case seeking damages from Shanna for misrepresenting health and medical insurance costs on 10 occasions, and inducing the court to issue child support orders and deny modifications based on those misrepresentations. Charles also sought damages from the Department for failing to disclose the fraud to the court when it was discovered.

Appellant Jesus Martinez violated his probation. The trial court reinstated probation after appellant agreed to waive 553 days of custody credit he had accrued and to participate in a 180-day residential drug treatment program.
Appellant subsequently committed another probation violation. At the revocation hearing, appellant requested credit for the 180 days he represented he had spent in the court-ordered residential drug treatment program. The trial court denied the request, reinstated appellant’s original sentence of five years, and awarded him a total of 192 days of custody credit.
Appellant now contends that he should have received an additional 180 days of credit for the time he spent in the residential treatment program. In the alternative, he requests a remand for an evidentiary hearing to determine whether the program was custodial in nature. We agree with appellant that he is entitled to credit for time he spent in a custodial program; his waiver of the 553 days o

Plaintiff Sofia Vergara sued her former fiancé, defendant Nicholas Loeb, for breach of contract and malicious prosecution based on his failed attempts to gain custody and control of two cryopreserved pre-embryos the parties created while they were engaged. In response, Loeb filed a special motion to strike under Code of Civil Procedure section 425.16 (section 425.16), the so-called anti-SLAPP statute. The trial court found that Vergara’s claims were based on Loeb’s protected activity, but denied the motion because it concluded she had shown a probability of success on the merits of her claims.

On January 31, 2017, the Los Angeles County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that appellant A.P., a 13-year-old minor, committed the felony offense of driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1); and the misdemeanor offense of driving a motor vehicle without a valid driver’s license (id., § 12500, subd. (a); count 2). The petition did not allege that the value of the vehicle exceeded $950.
On February 27, a second Welfare and Institutions Code section 602 petition was filed. It alleged that appellant committed the felony offense of driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1); fled a pursuing officer’s motor vehicle (id., § 2800.1, subd. (a); count 2); and possessed burglar’s tools (Pen. Code, § 466; count 3)). Once again, the petition did not allege that the value of the vehicle exceeded $950.

In 1996 Candelario Carreno (under the name Alvaro Barras Perez) pleaded guilty to one count of possession of cocaine base for sale in violation of Health and Safety Code section 11351.5. Carreno served his sentence, and in 2017 filed a motion to vacate his plea pursuant to Penal Code section 1473.7, subdivision (a)(1). The superior court denied the motion, emphasizing it had been 21 years since Carreno had entered his plea. Carreno appeals.
We conclude the superior court’s focus on the length of time between appellant’s plea and his request for relief under section 1473.7 as the basis for denying the motion, together with its lack of findings regarding the grounds for the motion, demonstrate that the court misconstrued the requirements for relief under section 1473.7 and failed to properly consider appellant’s motion on its merits. Accordingly, we reverse and remand the matter to the superior court for a hearing on the merits of the motion.

Defendant Ernest Casique appeals from a judgment of conviction following a jury trial. Defendant was convicted of three counts of premeditated attempted murder pursuant to Penal Code sections 664 and 187, subdivision (a), and all alleged firearm and gang enhancements were found to be true.
Defendant contends the trial court erred by allowing a witness to testify without first conducting a hearing to determine whether the witness’s testimony was based on personal knowledge. Defendant also contends the trial court erred by instructing the jury on a kill zone theory with CALJIC No. 8.66.1. Alternatively, he asserts remand is necessary to allow the trial court to exercise its discretion to strike firearm enhancements pursuant to section 12022.53, subdivision (h). Finally, defendant requests the trial court recalculate his presentence conduct credits which the court had improperly denied under section 2933.2. The Attorney General concedes that defendant’s latter two arguments ar

INTRODUCTION
On October 6, 2012, plaintiffs’ decedent, Diego Martinez, was stabbed to death by Andre Arriaga Preciado in the parking lot of El 7 Mares Restaurant (restaurant). Diego Martinez’s parents, Salvador Martinez and Teresa Martinez, and minor children, Aiden Martinez and Diego Aaron Martinez (collectively, appellants), sued for the wrongful death of their son and father. They obtained a $1.12 million default judgment against the restaurant and its owner, Sergio Diaz Salazar (collectively, respondents). Respondents successfully moved to set aside the default and default judgment on the basis the judgment was void for lack of proper service of the summons and complaint. (Code Civ. Proc., § 473, subd. (d).) The trial court denied appellants’ motion for reconsideration. We affirm.

Rodrigo Ignacio appeals the judgment entered following a jury trial in which he was convicted of attempted second degree robbery (count 1; Pen. Code, § 664/211), resisting an executive officer (count 3; § 69), and battery upon a peace officer (count 4 ; § 243, subd. (b)). Appellant admitted, and the court found true, a 2014 conviction for robbery, which was alleged as a prior serious felony conviction under section 667, subdivision (a)(1), and a prior serious and/or violent felony conviction under the Three Strikes law (§§ 667, subd. (b)–(j), 1170.12). The trial court granted appellant’s Romero motion, and imposed an aggregate sentence of 7 years in state prison, consisting of the low term of 16 months on count 1, plus 5 years pursuant to section 667, subdivision (a)(1), and one-third the mid term of 24 months for an additional 8 months on count 4.
Appellant contends: (1) the prosecution’s failure timely to provide the defense with the body camera video of appellant

INTRODUCTION
Plaintiffs alleged that their elderly father and husband suffered injuries and neglect while in the care of defendants, which eventually led to his death. Defendants—a hospital, doctor, and nurses—demurred to the complaint, asserting that the allegations were uncertain and that the complaint failed to state a cause of action. After successive complaints and demurrers, the trial court sustained defendants’ demurrers to the third amended complaint without leave to amend.
We reverse. Although the third amended complaint was verbose, the trial court erred by sustaining the demurrers on uncertainty grounds. In addition, the third amended complaint stated viable causes of action against the defendants, and the allegations do not warrant a finding that certain claims are time-barred.

Goleta Ag Preservation (Goleta Ag) is an unincorporated association. Its members are farmers who are customers of the Goleta Water District (District). They use untreated and minimally-treated water to irrigate commercial agriculture.
Goleta Ag appeals from the trial court’s order denying a petition for writ of mandate that would have directed the District to retroactively reverse its rate structure for 2015 through 2020, and would have invalidated the ordinance that adopted it (Ordinance 2015-4, the ordinance). Goleta Ag contends the District used defective notice procedures to implement new tiered water rates and drought surcharges. It also contends these charges force agricultural customers to subsidize the cost of urban conservation, in violation of the procedural and substantive requirements of Proposition 218. (Prop. 218, as approved by the voters, Gen. Elec. (Nov. 5, 1996), Cal. Const., article XIII D, § 6, subds. (a)(1) and (b)(3)).

Jude Darrin, age 81, petitioned for a restraining order under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act, Welf. & Inst. Code, § 15600 et seq.), alleging that her next-door neighbor, Sandra Miller, subjected her to ongoing abuse and harassment. The trial court dismissed the petition, concluding that because the two women were simply neighbors, there was no special relationship between them to give Darrin standing under the Elder Abuse Act. We shall reverse. The plain language of the Elder Abuse Act authorizes a trial court to issue a restraining order against any individual who has engaged in abusive conduct, as defined by statute, toward a person age 65 or older regardless of the relationship between the alleged abuser and victim. (§§ 15610.07, subd. (a)(1); 15657.03.)

Father and Maria Hristopoulos (Mother) are the parents of one child. In June 2015, after their relationship ended, the trial court ordered Father to pay Mother $750 per month in child support through November 30, 2015 and $2,573 per month thereafter, additional costs for “add-on” expenses, $25,000 in child support arrearages for the period from November 8, 2012 through April 30, 2015, and $21,428 for add-on expenses from November 1, 2012 through April 30, 2015.

A jury found defendant-appellant Joseph D. Quintana guilty of resisting an executive officer (Pen. Code, § 69, count 1), resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1), count 2), and driving with suspended or revoked driving privileges (Veh. Code, § 14601.1, subd. (a), count 3).
Quintana appeals and raises four issues: (1) counts 1 and 2 must be reversed because the trial court gave a modified version of CALCRIM No. 2670 that lowered the prosecution’s burden of proof on the issue of the officers’ lawful performance of their duties; (2) counts 1 and 2 must be reversed because the modified version of CALCRIM No. 2670 given was argumentative; (3) all counts must be reversed because the trial court prejudicially erred in admitting evidence of uncharged misconduct pursuant to Evidence Code section 1101, subdivision (b); and (4) count 2 must be reversed because it was a lesser included offense of count 1, thus multiple convictions were barred.
We reject

Billy Raymond Mount appeals from his convictions of second degree murder (Pen. Code, § 187, subd. (a); count one), assault with a semiautomatic firearm (§ 245, subd. (b); count two), willfully and maliciously discharging a firearm from a motor vehicle (§ 26100, subd. (c); count three), felon in possession of a firearm (§ 29800, subd. (a)(1); count four), unlawful possession of a firearm (§ 29805; count five), and multiple enhancements, including personal and intentional discharge of a gun causing death (§ 12022.53, subd. (d)) and commission of the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).