CA Unpub Decisions

This is an appeal of a judgment of dismissal after the trial court granted the motion for summary judgment of defendant USAA Casualty Insurance Company against its former insured, Derek Zabaldo. Zabaldo was involved in an automobile accident after his automobile insurer, USAA, cancelled his policy for nonpayment. Zabaldo did not dispute that his premiums were unpaid at the time of the accident or that he was aware that his policy would be cancelled. However, he claimed USAA did not send him a notice of cancellation 10 days prior to cancelling his policy, as required by the policy and by Insurance Code section 662.
The sole issue on summary judgment was whether a triable issue of fact existed as to the proper mailing of the notice of cancellation. We shall conclude that the judgment should be affirmed because Zabaldos evidence that he did not receive the notice of cancellation did not warrant a reasonable inference that the notice was not mailed under the circumstances presented here, and no reasonable juror could have concluded that Zabaldo had met his burden of showing the notice was never sent. Court affirm the judgment of dismissal.

Defendant Tracy Hasson was found guilty by a jury of vehicular manslaughter while driving under the influence of marijuana (former Pen. Code, 192, subd. (c)(3) [the crime of vehicular manslaughter while intoxicated is now contained in Pen. Code 191.5, subd. (b); see Stats. 2006, ch. 91, 1]) and transportation of a controlled substance (Health & Saf. Code, 11352, subd. (a)). Defendant waived jury trial on two prior controlled substance convictions (Health & Saf. Code, 11370.2, subd. (a)), and the trial court found the prior convictions true. Probation was denied and defendant was sentenced to state prison for a term of 11 years 8 months, including an upper term on the controlled substance offense. Defendant appeals, contending there was insufficient evidence that he was under the influence of marijuana at the time of the accident. He also asserts the trial court erred by admitting a photograph of the victim at trial. Finally, defendant claims his sentence violated the holdings in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham).) Court affirm.

Defendant Daryll Dashon Gates was charged with three counts of second degree robbery. (Pen. Code, 211.)[1] With respect to two of the robbery charges, it was further alleged defendant had personally used a firearm. ( 12022.53, subd. (b).) Defendant pled no contest to one of the robbery charges and admitted the related personal gun use enhancement. The remaining counts were dismissed. The court sentenced defendant to the agreed term of the lower term of two years on the robbery conviction plus 10 years for the firearm enhancement. Defendants request for a certificate of probable cause was denied.
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant.

Kathryn E. M. Brown appeals from the judgment in this dissolution action between her and her former husband, David S. Brown. She contends that the court erred in valuing certain of the community property business assets as of the date of the parties' separation rather than at the time of trial, which is the presumptive date of valuation under the Family Code. (All further statutory references are to the Family Code except as otherwise noted.) Specifically, she contends that (1) David did not give notice of his intent to seek valuation of those businesses as of the date of separation as required by the Family Code and the California Rules of Court; (2) the court applied an incorrect standard in determining the proper date of valuation; and (3) the evidence at trial did not support the court's decision to use the alternative date of valuation. David responds that (1) Kathryn was benefited rather than aggrieved by the court's decision to use the date of separation as the date of valuation and thus lacks standing to pursue an appeal, which he seeks to have dismissed; and (2) the court did not abuse its discretion in using the date of separation for the purpose of valuing some of the businesses and that decision was supported by substantial evidence. Court affirm the judgment.

A jury convicted Rafael G. Flores of evading an officer with reckless driving on two different occasions (Veh. Code, 2800.2, subd. (a); counts 1 & 5); with being involved in a hit and run (Veh. Code, 20002, subd. (a); count 6); possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); count 2); carrying a concealed firearm in a vehicle by a felon ( 12025, subd. (a)(1); count 3), and carrying a loaded firearm in a vehicle by a felon ( 12031, subd. (a)(1); count 4). Following a bifurcated proceeding, the trial court found true allegations Flores had served a prior prison term ( 667.5, subd. (b)) and had previously suffered three "no probation" felony prior convictions ( 1203, subd. (e)(4)) and three prior convictions that qualified as "strikes" under the three strikes law ( 667, subd. (b)-(i); 1170.12).[3]
After denying Flores's motion for a new trial and granting his motion to strike two of his prior strikes, the court sentenced Flores to prison for a total of 11 years, consisting of an upper three year term for the count 1 evading offense doubled under the three strikes law, consecutive 16-month terms for counts 2, 3 and 5 (one third the midterm doubled under the three strikes law), plus one year consecutive for the prison prior.
After review of all briefing, the record and the law, we modify the judgment to strike the counts 1 and 5 lesser included offense convictions, stay under section 654 the term for the count 2 offense, and affirm Flores's convictions and sentence in all other respects.

A jury convicted Maurice Mosby of attempted burglary of a vehicle. (Pen. Code, 459/664.)[1] Mosby admitted, prior to trial, he had suffered two prior convictions within the meaning of section 1203, subdivision (e)(4) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced Mosby to the upper term for the attempted burglary conviction, and to two consecutive one year terms for the two prison priors. On appeal, Mosby argues the trial court abused its discretion by refusing to permit expert testimony on eyewitness identifications and by ruling the jury could be told he had prior convictions for commercial burglary and theft. He also asserts his sentence must be vacated because it violates Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].

The City of Oceanside (City) and the City of Oceanside Manufactured Home Fair Practices Commission (the Commission) appeal from a judgment issuing a petition for peremptory writ of administrative mandamus (Code Civ. Proc., 1094.5) in favor of TG Oceanside, L.P. (Owner), a mobilehome park owner who had filed the petition challenging the decision by City and the Commission to deny it a rent increase. On Owner's administrative appeal of City and the Commission's decision, the administrative hearing officer affirmed the Commission's denial of a rent increase, concluding the evidence and City's expert demonstrated Owner was already earning a fair return and Owner had not overcome a presumption that the mobilehome park's base year rate of return was just and reasonable. The hearing officer nevertheless awarded Owner a $10.07 increase in monthly rents per space. On Owner's writ petition, the trial court set aside that decision and remanded the matter to the Commission to apply a return on investment approach that accounted for the effect of inflation on Owner's original and subsequent capital investment, and commanding City not to depreciate the investments. City contends (1) Owner's petition should have been dismissed for failure to join the administrative hearing officer as an indispensable party; (2) the trial court erred in rejecting City's expert economist's method for determining fair return; (3) Owner did not meet its burden to present evidence demonstrating it was not earning a fair return; and (4) the decisions of the hearing officer and the Commission are supported by substantial evidence. Though Court reject City's indispensable party argument, Court agree that the evidence presented by Owner on its special adjustment application did not serve to rebut an evidentiary presumption that existing rent adjustment formulas contained within City's rent control ordinance provide a fair return. Because the administrative hearing officer was required to presume this fact absent evidence to the contrary, the trial court erred in granting Owner's writ petition. Court reject Owner's cross-appeal contentions, and consequently reverse the judgment with directions that the superior court deny the petition.

Terry L. Miller appeals from a judgment in favor of plaintiffs Trina Cooley and Michael Lippke (collectively plaintiffs) after the court denied his motion to set aside his default under Code of Civil Procedure section 473 and entered judgment against him. (All statutory references are to the Code of Civil Procedure.) Miller claims the trial court erred in denying his motion. Alternatively, he contends the trial court erred in refusing to hear a second motion that he had filed and that the judgment against him is legally flawed and unreasonable. Court conclude the trial court erred in denying the motion because Miller was entitled to mandatory relief based on his counsel's affidavit of fault. Accordingly, Court reverse the judgment, mooting Miller's remaining contentions.

Mark J. appeals judgments terminating his parental rights to his children, M.J. and L.B., under Welfare and Institutions Code section 366.26.[1] He also appeals orders denying his petition for modification under section 388. Court affirm the judgments and orders.

A.V. seeks review of juvenile court orders denying his request for a contested 12-month review hearing under Welfare and Institutions Code section 366.21, subdivisions (f) and (g) and setting a hearing under section 366.26 to select and implement a permanency plan for his daughter, Faith V. The petition is denied. The request for a stay is denied.

On January 17, 2007, pursuant to Penal Code section 859a,[1]defendant, represented by counsel, pled guilty to count one ( 459, second degree burglary) and admitted the special allegations as charged pursuant to 667, subdivisions (b)-(i) and 1170.12, subdivision (a)-(d) in the amended complaint filed by the District Attorney of San Bernardino County.
Thereafter, and in accordance with the negotiated disposition, defendant was committed to state prison for four years less custody credits and counts 2 and 3 and the special allegations were dismissed and stricken on motion of the district attorney and in the interests of justice pursuant to section 1385. The judgment is affirmed.

Defendant and appellant Peggy S. (mother) is the natural mother of five children who were made dependents of the juvenile court. Mother appeals an order terminating her parental rights to child 2. Mother contends that the evidence was insufficient to support the courts finding that child 2 was adoptable. Court affirm.

Minor admitted that she had received a stolen motor vehicle (Pen. Code, 496d, subd. (a)); in return, the remaining count of unlawfully driving or taking a vehicle (Veh. Code, 10851) was dismissed. Minor was thereafter declared a ward of the court and placed on probation on various terms and conditions of probation in the custody of her father. On appeal, minor contends (1) four of her gang-related probation conditions must be modified, as they are unconstitutionally vague and/or overbroad; and (2) two of her probation conditions must to stricken or modified as they violate due process. Court agree with the parties that the relevant probation conditions must be modified to require a knowledge requirement. Court also agree with minor that the physician letter condition must be modified. Court reject minors remaining contention.

On March 23, 2007, pursuant to Penal code section 1192.7,[1]defendant, represented by counsel, pled nolo contendere to voluntary manslaughter, a lesser included offense ( 192, subd. (a)), and admitted the special allegations filed pursuant to section 667.5, subdivision (b). In accordance with the negotiated disposition, defendant was committed to state prison for 14 years and awarded the appropriate custody credits.
The judgment is affirmed.