CA Unpub Decisions

Defendant, a Norteo gang member since 1997, was found guilty at jury trial of assault, street terrorism, robbery, and firearms offenses with gang and firearm enhancements, arising from three separate incidents against the same victims in Salinas in 2003. The trial court imposed a determinate sentence of 17 years, four months followed by an indeterminate term of 30 years to life. On appeal, defendant challenges the admissibility of the evidence, the competence of counsel, and the courts selection of the upper term sentence. The clerk of the superior court is ordered to correct the abstract of judgment to reflect midterm sentences on counts 2, 7, and 8 and forward a corrected abstract of judgment to the Department of Corrections. The judgment is affirmed.

In this consolidated appeal plaintiffs John Zimmerman and Renee Zimmerman, husband and wife, appeal summary judgments in their action against defendants National Life Insurance Company and Life Insurance Company of the Southwest (collectively, National Life) and Apolinar M. Alvarez, Jr. and Hooper Holmes, Inc., doing business as Portamedic, (collectively, the Alvarez defendants) for damages sustained as a result of defendants failure to inform John Zimmerman of the results of a blood test given as a prerequisite for the issuance of a life insurance policy. They contend defendants owed them a duty of care to provide them the test results.
The judgments are affirmed.

The wife of plaintiff Thomas Ho-Nien Au made a substantial charitable donation to defendant Purple Lotus Temple (Temple) in 1992. After Au objected, she agreed not to make any further large donations to the Temple. Yet in 2002, Au learned that his wife had made many substantial subsequent donations to the Temple without his knowledge. After the couple divorced in 2003, Au sued the Temple to recover his community property share of the donations.
The jury found that Au had not consented to the donations and that his claims to recover the donations made after the initial large donation were not barred by the statute of limitations. Au was awarded his share of these later donations, partially reduced to account for his negligence. The Temple argues that the jurys decision must be reversed because Aus claims were all time-barred, either because he was deemed to have knowledge of the donations disclosed in his federal income tax returns or because his claims accrued when he became suspicious that his wife would not keep her word. Au cross appeals, arguing that the trial court erroneously precluded him from arguing that the Temple was estopped from asserting a statute of limitations defense regarding the initial large donation. Court affirm.

Defendant, a minor, filed an appeal from a dispositional order, entered by the juvenile court referee, committing him to the California Youth Authority (CYA) for a term not to exceed 10 years. Among other contentions, he argued that he timely filed an application for rehearing (Welf. & Inst. Code, 252 & 254), which was automatically granted when the juvenile court took no action on it. Initially, the People asserted that the application for rehearing was defective in form, and also argued that the referees order was not an abuse of discretion.
The parties have waived oral argument. Therefore, a peremptory writ of mandate issue commanding respondent, Superior Court of Alameda County, to hold a rehearing (Welf. & Inst. Code, 252 & 254) in In re Terrance C., a Minor (Super. Ct. Alameda County, 2005, No. 188408). This opinion is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

An information charged defendant in count 1 with second degree burglary of a locked vehicle (Pen. Code, 459, 460, subd. (b)) and in count 2 with attempted grand theft of an automobile ( 487, subd. (d), 664). Defendant pleaded not guilty and a jury convicted of him second degree burglary and acquitted him of attempted grand theft of an automobile. Defendant contends that the trial court erred in failing to instruct sua sponte on tampering with a vehicle and in refusing to give defendants requested pinpoint instruction on intoxication. Additionally, defendant argues that his trial counsel provided him with ineffective assistance of counsel when, after final argument was completed, his attorney declined the trial courts offer to instruct the jury on intoxication. Court affirm the judgment.

John J. Ford III and Katherine L. Ford (plaintiffs or the Fords) brought this action against Mortgage Loan Specialists, Inc. (MLS), Richard E. Warren, Jr. (Warren), Myles Hubers and Michelle Renee Hubers (the Hubers), for alleged wrongs arising from two agreements plaintiffs assertedly executed with Warren as they faced foreclosure on real property they owned in Napa County.
This court has affirmed an order as to Warren on a prior appeal in this action, but Warren is not a party to this appeal by plaintiffs, which is from summary judgment granted to MLS and a dismissal of the Hubers granted after the court sustained, without leave to amend, the Hubers special and general demurrer to plaintiffs complaint. The trial court also denied plaintiffs motion to reconsider. The scope of our review is not fully explored by the parties, but the trial courts first ground for denying reconsideration, we note, was: Substantively, this court is without jurisdiction to consider plaintiffs motion [filed March 9, 2006], as judgment was entered as to the Hubers on February 3, 2006 and as to MLS on February 28, 2006. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 [court loses jurisdiction to consider motion for reconsideration after judgment entered].) An untimely motion for reconsideration would not defeat the timeliness of plaintiffs March 30, 2006, notice of appeal from the judgments, which was filed within the normal 60 days not extended by a motion (Cal. Rules of Court, rule 8.104(a)), but could moot an attack on the merits of the reconsideration ruling. The court also cited plaintiffs failure to serve the motion 16 court days before the hearing (Code Civ. Proc., 1005, subd. (b)), failure to file it 10 days after being served written notice of entry of the demurrer order (id., subd. (a)), and other procedural defects, none of which are addressed by plaintiffs. From plaintiffs failure to address those questions and their focus on agency issues relating to the demurrer and summary judgment rulings, Court conclude they do not fault the handling of the reconsideration motion itself. Court review accordingly and, finding no error in the earlier rulings, affirm.

Appellant Andrew Howard appeals from the judgment entered after his plea of no contest. His counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.Court's independent review of the record reveals no arguable issues. Accordingly, the judgment is affirmed.

Wendy Lynn Cordar appeals from a judgment revoking probation and imposing sentence after a guilty plea. Her court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, in order to determine whether there are any arguable issues on appeal. Court find there are none and affirm.

J. T. appeals from a dispositional order committing him to the California Department of the Youth Authority (CYA). Appellant contends that the juvenile court abused its discretion in committing him to the CYA because there was insufficient evidence that he would benefit from this commitment. He also contends that he posed no threat to public safety, and that the juvenile court committed him to the CYA to punish him. Court affirm.

Gregory F. (Father) challenges an order of the Humboldt County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for Sharon T. (born June 2005). Court deny his petition on the merits.

Court have reached our decision after notice to all parties that Court might act by issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The entitlement to relief is obvious and has been conceded. Accordingly, let a peremptory writ of mandate issue commanding respondent court to render a decision on the merits of the petition for writ of habeas corpus in A112887. Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)James Toures Barlow petitions for a writ of mandate to compel respondent superior court to perform its duties pursuant to the March 29, 2006 order to show cause issued in A112887 by rendering a decision on the merits of the petition for writ of habeas corpus. On March 29, 2006, we issued an order stating that petitioner Barlow had made out a prima facie case for relief for juror misconduct and directed the Director of the Department of Corrections to show cause before the Solano County Superior Court why the judgment should not be vacated, citing In re Hochberg (1970) 2 Cal.3d 870, 875-876, fn. 4. Our order also directed the Solano County Superior Court to hold an evidentiary hearing to determine whether Timothy Curtis Rachal is the son of juror Bennie Rachal and, if so, whether the prosecution is able to rebut the presumption of prejudice arising from her failure to disclose that relationship and Timothys criminal record on voir dire. Respondent court held the hearing, made the requested factual findings, but did not issue a decision.

Appellant was recommitted as a sexually violent predator (SVP) following a jury trial at which he represented himself. (Welf. & Inst. Code, 6600 et seq.) He argues that the judgment must be reversed because he was shackled before the jury even though there was no showing of a manifest need for such restraints. (People v. Combs (2004) 34 Cal.4th 821, 837.) The People respond that appellant has waived this issue by failing to object. They also contend appellant cannot establish prejudice where the record does not demonstrate that jurors actually saw the restraints or that appellant was hampered in presenting his defense. Court affirm.

Appellant Shane Tatum filed a notice of appeal from the trial court's order denying his request to reduce his felony conviction to a misdemeanor. Court affirm.

In this writ proceeding, petitioner Circle K Stores, Inc. (Circle K) seeks an order directing the Alcoholic Beverage Control Appeals Board (the Appeals Board) to vacate and annul an administrative decision affirming an administrative order to suspend Circle Ks liquor license. Circle K asserts that respondent Alcoholic Beverage Control (ABC) violated Circle Ks right to due process and violated the Administrative Procedures Act (APA) by permitting the ABC prosecuting attorney at the administrative trial to provide an ex parte written communication, called a Report of Hearing, to the ABC final decision maker or the advisors to the ABC final decision maker.
In response, the ABC does not dispute that if it provided the ABC prosecuting attorneys Report of Hearing to the ABC final decision maker or the advisors to the decision maker, such a communication would have violated the APAs bar against ex parte communications pursuant to Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 4 (Quintanar). Instead, in these writ proceedings, the ABC responds that it did not provide the Report of Hearing to the ABC final decision maker or the advisors to the decision maker. The ABC did not raise this issue at any time during the administrative proceedings. In support of its contention, the ABC submitted declarations from two ABC officials in an attempt to establish that it implemented a screening procedure preventing the ABC prosecuting attorney from providing the written ex parte communication to the ABC final decision maker or the advisors to the ABC final decision maker.
Court grant the petition and issue the writ in favor of Circle K. Quintanar unequivocally holds that the ABCs practice of permitting its administrative prosecuting attorneys to provide the ex parte written communications, i.e., Reports of Hearings, to the ABC final decision maker or to the final decision makers advisors constitutes a violation of the APAs ban on ex parte communications. (Quintanar, supra, 40 Cal.4th at p. 17.) In addition, the ABC is barred by statute from presenting to this court new or additional evidence, including the purported evidence regarding its alleged ethical screening procedures. (See Bus. & Prof. Code, 23090.1 & 23090.2.) Circle K timely raised this issue below during the administrative proceedings. The ABC was required by statute to present its evidence at that time.
The petition is granted. Let a peremptory writ of mandate issue directing the Appeals Board to vacate and annul the suspension of Circle Ks liquor license. The stay imposed by this court is vacated. The order to show case is discharged.