CA Unpub Decisions

Defendant, a lawful permanent resident of the United States, appeals from an August 24, 2005 order denying his motion to vacate his December 1996 plea of no contest to committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a)). Defendant contends, as he did below, that he received ineffective assistance of counsel because his attorney misadvised him of the immigration consequences of his plea and failed to attempt to obtain an alternative plea agreement that would have avoided the actual consequences. Defendant also contends that he may appeal from the denial of his post judgment motion to vacate his plea which raised his ineffective assistance of counsel claim. Court disagree with this latter claim, and therefore dismiss the appeal.

Defendant was convicted by jury trial of second degree robbery (Pen. Code, 211, 212.5, subd. (c)) and carrying a concealed dirk or dagger on his person (Pen. Code, 12020, subd. (a)(4)), and the jury found true the allegation that he had personally used a deadly or dangerous weapon in the commission of the robbery (Pen. Code, 12022, subd. (b)(1)). The court found true allegations that defendant had suffered four prior serious felony convictions (Pen. Code, 667, subds. (a), (b) (i), 1170.12) and five times served prison terms for felony convictions (Pen. Code, 667.5, subd. (b)). Defendant was committed to state prison to serve an indeterminate term of 25 years to life consecutive to a determinate term of 11 years. On appeal, defendant claims that the trial court erred in giving a prejudicially erroneous instruction on the concealed element of the carrying a concealed dirk or dagger count. He also contends that the trial court abused its discretion in refusing to strike the prior conviction findings. Finally, defendant maintains that his sentence is unconstitutionally cruel and/or unusual punishment. Court reject his contentions and affirm the judgment.

Petitioners Raul and Marianne Mora (collectively, Moras) lost their Hollister home through foreclosure and thereafter brought an action challenging the legality of the sale. This petition for writ of mandate arises out of an order sustaining without leave to amend the demurrers of two defendants to some (but not all) of the causes of action of Moras second amended complaint (Complaint). Moras filed a nonstatutory petition for writ of mandamus or supersedeas challenging the order; they also sought a stay to prevent any attempts to remove them from their home via unlawful detainer. The principal argument in the petition is that the court erred by making a conclusive determination of certain facts supposedly contained in documents of which it took judicial notice. Those facts contradicted key allegations of the Complaint and resulted in the court sustaining the demurrers. Real parties in interestthe lender, Ocwen Financial Corporation (Ocwen), and the trustee, Cal Western Reconveyance Corporation (Cal Western)have opposed the petition.
After consideration of the entire matter, including supplemental opposition papers filed by Ocwen, court conclude that the lower courts ruling was erroneous. Accordingly, court grant Moras petition for writ of mandate.

Defendant below, seeks reversal of his rape conviction or, at the least, a reduction of his sentence from six to three years. Court affirm his conviction and sentence.

Plaintiffs Ryan Walsh (Walsh) and Kevin Miller (Miller), on behalf of themselves and others similarly situated, appeal from an order decertifying one of several subclasses in their class action against respondent IKON Office Solutions, Inc. (IKON). Appellants contend: (1) the order is erroneous because it fails to identify sufficiently the courts reasons for decertification; and (2) the evidence does not support the trial courts conclusion; and (3) IKONs motion was untimely and procedurally defective in its failure to comply with local rules of the San Francisco Superior Court. Court affirm the order.

Anthony M. appeals the juvenile courts order committing him to the former California Youth Authority (CYA). Court find no abuse of discretion and affirm.

This is the second appeal by S.T. (Mother) that challenges the termination of her parental rights as to her son, Daniel G. (Daniel). In an unpublished opinion, we reversed a prior judgment terminating Mothers parental rights. (In re Daniel G. (Sept. 20, 2005, A107951).) Court remanded the case to the juvenile court for a new Welfare and Institutions Code[3]section 366.26 hearing. On remand, the juvenile court terminated Mothers parental rights and ordered a permanent plan of adoption for Daniel. Mother contends that the juvenile court erred in failing to apply the beneficial relationship ( 366.26, subd. (c)(1)(A)) and sibling relationship ( 366.26, subd. (c)(1)(E)) exceptions. She also contends that the juvenile court erred in denying her request for a continuance. Finally, Mother urges that the juvenile courts order should be reversed because the proceedings were fundamentally unfair. Court affirm.

Dennis W. Brown filed an action against F. Rodgers Insulation, Inc. (FRI), his union, and another employer for age discrimination under the Fair Employment and Housing Act (FEHA) and under the common law. The trial court granted summary judgment in favor of FRI. It found there was no triable issue of fact that FRI had a discriminatory motive when rejecting Brown for a job. Brown appeals and court affirm the lower courts ruling.

Plaintiff, Robert S. Greenberg, and defendant, Oscar O. Arnold, II, were officers and shareholders in a close corporation. After a court trial, the court found that Arnold had breached his fiduciary duties and had committed fraud. The court entered judgment in favor of Greenberg in the amount of $317,919 compensatory damages and $50,000 punitive damages. Arnold contends on appeal the judgment is not supported by substantial evidence, and that the trial court abused its discretion in excluding two witnesses. Court affirm.

Clarence Erwin Reese appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187, 189) with special circumstances that he was engaged in attempted carjacking (Pen. Code, 190.2, subd. (a)(17)(L)) and burglary (Pen. Code, 190.2, subd. (a)(17)(G)), count 2 attempted carjacking (Pen. Code, 664, 215, subd. (a)), and count 3 first degree residential burglary (Pen. Code, 459) with, as to each offense, findings that a principal personally used a firearm (Pen. Code, 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code, 12022.53, subds. (c) & (e)(1)), and a principal personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, 12022.53, subds. (d) & (e)(1)). The court sentenced appellant to prison for 25 years to life. The judgment is affirmed.

While serving time in prison, plaintiff retained counsel to file and pursue this action. But the attorney abandoned the case without informing his client. Counsel failed to attend a status conference, eventually resulting in dismissal of the case. Plaintiff moved to set the dismissal aside based on abandonment. The trial court denied the motion, stating that plaintiff had not diligently prosecuted the action. Plaintiff sought reconsideration, arguing that the case was not subject to dismissal for lack of prosecution because it had not been on file for at least two years. The trial court denied the motion, concluding it had authority to dismiss the case even though it had been on file for less than one year.
Court conclude that the trial court abused its discretion in denying plaintiffs motion to set aside the dismissal. Plaintiffs counsel abandoned the case without plaintiffs knowledge or consent. Counsel did not communicate with his client, making it virtually impossible for plaintiff to monitor the proceedings. Nor was the case properly dismissed for lack of prosecution given that so little time had passed since it had been filed. Court therefore reverse.

Defendant appeals the judgment following his guilty plea to possession of a controlled substance for sale. (Health & Saf. Code, 11378.) His plea was entered after denial of a motion to quash a search warrant and suppress evidence seized during the search. Marin contends that the search of his room pursuant to the warrant was unreasonable in light of the circumstances in existence at the time of the search. Court affirm.

Defendant appeals from denial of his request for leave to file a motion to withdraw a no contest plea. Appellant contends he was not mentally competent at the time he entered his plea of no contest to one count of lewd conduct with a child (Pen. Code, 288, subd. (a)). He was sentenced to three years in state prison consistent with his plea bargain. In the absence of substantial evidence of incompetence at the time appellant entered his plea, the trial judge did not abuse his discretion by denying appellant's motion to withdraw the plea pursuant to section 1018, nor was the trial judge required by section 1368 to conduct a retroactive competency determination. In any event, appellant waived his constitutional claim by failing to object on constitutional grounds in the trial court.

Defendant appeals from the judgment entered following her guilty pleas to four counts of child endangerment. (Pen. Code, 273a, subd. (a).) Appellant admitted two prior serious felony convictions within the meaning of California's "Three Strikes" law. ( 1170.12, subds. (a) (d), 667, subds. (b) (i).) The pleas were pursuant to a negotiated settlement whereby one of the prior convictions would be struck, three remaining counts in the information would be dismissed, and the maximum sentence would be 20 years in state prison.
The trial court sentenced appellant to prison for 16 years: the midterm of four years on one count of child endangerment, doubled to eight years because of the strike, plus consecutive terms of two years, eight months, on each of the three other counts of child endangerment (one third the midterm doubled because of the strike). The trial court stated that consecutive sentences were appropriate because there were "different individual victims for each count."
Appellant contends that, pursuant to section 654, sentence on the three other counts of child endangerment should have been stayed. Court dismiss the appeal because appellant failed to obtain a certificate of probable cause.