CA Unpub Decisions

Mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. and Inst. Code, SS 366.26, 395.) Appellant raises several contentions related to the section 366.26 hearing. Court affirm.

Plaintiff appeals the judgment and related posttrial orders that were entered after the dismissal of his complaint for declaratory and equitable relief, which had alleged causes of action for false advertising and unfair business practices under the Unfair Competition Law (Bus. & Prof. Code, S 17200 et seq., the UCL; all statutory references are to the Bus. & Prof. Code unless otherwise specified.) The trial court ruled that he lacked standing as an unaffected plaintiff to sue under the provisions of the UCL and the False Advertising Act (S 17500 et seq.), and had failed to timely amend his complaint to substitute a new plaintiff. Additionally, the trial court denied his new trial motion and entered judgment finding him liable for costs of suit, as well as an order denying him attorney fees.
Appellant acknowledges that under recent Supreme Court case law interpreting Proposition 64 (Prop. 64), he cannot maintain this action under the UCL and the False Advertising Act. (Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 232-233 (CDR); Branick v. Downey Savings and Loan Association (2006) 39 Cal.4th 235, 239 (Branick).) However, he contends the trial court abused its discretion in denying him leave to amend his complaint to meet the new standing requirements, and that the award of costs against him amounts to an unconstitutional bill of attainder. Appellant also objects that the statutes implementing Prop. 64 contain an unconstitutionally vague reference to Code of Civil Procedure section 382, referring to compliance with class action procedures.
Court agree that Bivens lacks standing to pursue this action as pled. Court also find the trial court did not abuse its discretion in denying appellant's request to amend his complaint to try to satisfy the requirements of Prop. 64, because he did not show the necessary diligence for establishing a right to discovery during the relevant time periods. Additionally, his motions for reconsideration and for new trial were not well taken. The judgment of dismissal and the posttrial orders awarding costs are well supported in the record and Court affirm.

Defendant pleaded guilty to the attempted carjacking of Michelle Johnson's vehicle in violation of Penal Code sections 664 and 215, subdivision (a), which provide in part that any person who attempts to take a motor vehicle in the possession of another from her presence by means of force or fear with the intent to deprive her of its possession is guilty of a felony. The court denied Defendant's request for probation and sentenced him to the midterm of two years six months in state prison.
Defendant appeals, contending the court abused its discretion when it denied his request for probation. Court reject this contention and affirm the judgment.

Appellant appeals from orders on juvenile dependency petitions filed by the San Diego Health and Human Services Agency (the Agency) on behalf of his minor children, Juan J., Jr. (Juan Jr., age 3) and Jared J. (age 8-months; together the children). Juan Sr. claims that the juvenile court erred in: (1) failing to acknowledge his presumed father status as to Juan Jr.; (2) not ordering a paternity test as to Jared; (3) not securing his attendance at scheduled hearings; and (4) finding that the Indian Child Welfare Act (ICWA) did not apply without having an adequate basis for that finding as to him. The Agency seeks to dismiss the appeal on the ground subsequent events have rendered all issues moot.
Court agree that the paternity issue is moot, but find that the issues pertaining to Juan Sr.'s attendance and application of ICWA are not moot. We deny the motion to dismiss the appeal and address the latter issues on their merits. Court find no error pertaining to the juvenile court's failure to secure Juan Sr.'s attendance, but reverse the finding that ICWA did not apply. Accordingly, Court reverse the dispositional orders and remand the matter for further proceedings to assure compliance with the federal statute.

Petitioner seeks writ review of juvenile orders terminating reunification services and setting a permanency plan selection and implementation hearing. Court deny the petition.

Proceedings in mandate after trial court ordered production of treatment and counseling records. Petition granted.

Proceedings in mandate after trial court ordered production of treatment and counseling records. Writ of mandate issue directing the superior court to vacate its order requiring the production of the redacted pages of Munden's counseling records and to issue an order denying the production. The stay issued on January 24, 2007, is vacated. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).) Defendants are entitled to costs, if any, in the writ proceeding.

In 2004, defendant entered negotiated pleas of no contest to three felonies, transporting methamphetamine (count III), transporting oxycodone and hydrocodone (count V), and possessing methamphetamine while armed with a firearm (count VI), and also entered negotiated pleas of no contest to four counts deemed to be misdemeanors (Pen. Code, S 17), possessing a billy club (count I), possessing methamphetamine (counts II and VIII), and unlawfully possessing a firearm (count X). In accordance with the plea agreement, imposition of sentences on the felonies was suspended and defendant was placed on probation under terms including that he serve 60 days in the county jail. Imposition of sentences on the misdemeanors also was suspended and defendant was placed on probation for those convictions.
In August 2005, the People moved for entry of judgment on the felony convictions because defendant was found in possession of methamphetamine, an unlawful substance smoking pipe, and ammunition that he could not lawfully possess, all in violation of the terms of his probation.
On appeal, defendant contends that imposition of the upper term for count V violated his rights to due process and to trial by jury on the factors used by the court to impose the upper term. (Citing Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).) Court disagree and affirm the judgment.

Defendant entered a negotiated plea of guilty to conspiracy to commit first degree robbery, and admitted that he acted in concert with two or more other persons and that he personally used a firearm. He was sentenced to an aggregate term of 16 years in prison.
On appeal, after having obtained a certificate of probable cause, defendant claims the trial court abused its discretion in denying his motion to withdraw his plea. Court disagree and affirm the judgment.

A jury found Defendant guilty of: (i) forcible rape while acting in concert (Pen. Code, SS 261, subd. (a)(2), 264.1) (count 1); (ii) oral copulation by force or fear (S 288a, subd. (c)(2)) (count 2); (iii) kidnapping for robbery (S 209, subd. (b)(1)) (count 3); (iv) two counts of robbery (S 211) (counts 4 and 5); and (v) conspiracy to commit a crime (S 182, subd. (a)(1)) (count 6). The jury also made true findings that in committing the offenses in counts 1 and 2, Davis kidnapped the victim and by doing so substantially increased the victim's risk of harm (S 667.61, subd. (d)), and that in committing each of the offenses Davis personally used a firearm (S 12022.53, subd. (b)). The trial court sentenced Davis to 25 years to life in state prison.
Defendant appeals, contending that his convictions must be reversed because: (i) there was insufficient evidence to support the jury's conclusion that he kidnapped the victim; (ii) the trial court erred in failing to instruct the jury sua sponte on reasonable and good faith belief in consent; (iii) the trial court erred in refusing to sever Davis's trial from that of his codefendant; and (iv) his trial counsel provided ineffective assistance of counsel by failing to request applicable jury instructions and failing to object to damaging, irrelevant evidence. As discussed below, our evaluation of these claims reveals them to be without merit and consequently court affirm the judgment.

The issue in this family law case is whether the court abused its discretion by denying the petition of Bradley Sullivan for custody of his daughter with minor, and an order allowing him to move her to Spain with him and his family during his three year Navy deployment there. Brad complains that the trial court ignored the custody evaluator's recommendations in his favor. Court affirm the order.

Defendant admitted that he committed robbery (Pen. Code, S 211) (count 2) and assault by means of force likely to produce great bodily injury (Pen. Code, S 245, subd. (a)(1)) (count 3). The trial court committed Rafael to the Division of Juvenile Justice (DJJ) (formerly known as California Youth Authority (CYA)), and set a maximum time of confinement of six years. The trial court also imposed a restitution fine and designated both offenses as Welfare and Institutions Code section 707, subdivision (b) offenses.
On appeal, defendant claims that the trial court erred in failing to exercise its discretion pursuant to section 731, subdivision (b) to set his maximum term of physical confinement under the facts and circumstances of this case. In addition, defendant contends that the trial court failed to declare whether count 3 is a misdemeanor or a felony, as is required pursuant to section 702, and thus, that the court's designation of count 3 as a section 707, subdivision (b) offense is improper. Defendat further claims that the term of commitment imposed on count 3 must be stayed pursuant to Penal Code section 654. Finally, defendant contends that the commitment order improperly states that the trial court imposed a $200 restitution fine, when the court in fact imposed a fine in the amount of $100. Court reverse and remand with directions.

Defendant appeals judgments entered after he pleaded guilty to 17 counts alleged in four separate informations. On appeal, he contends his convictions must be reversed because the trial court erred by denying his Penal Code section 1538.5 motion to suppress evidence.

Defendant appeals from the judgment entered after a jury found him guilty of possessing cocaine in violation of Health and Safety Code section 11350, subdivision (a). Because that conviction was defendant's third strike, and the trial court denied his motion to strike one or more of his prior strike convictions, the trial court sentenced defendant to serve a term of 25 years to life in state prison. Court had reversed defendant's conviction based on our conclusion that the police had violated defendant's rights under the Fourth Amendment when they conducted the search that netted the drugs.Court based it's reversal on People v. Sanders (2003) 31 Cal.4th 318 (Sanders), which held that police officers must know of the defendant's parole search condition to justify a warrantless search under that exception. The trial court had denied defendant's Penal Code section 1538.5 motion to suppress the cocaine because defendant was on parole at the time of the search and subject to a search condition. Because the Supreme Court decided Sanders after the suppression motion was heard, the prosecutor did not present evidence at the suppression hearing to show that the police knew of defendant's parole search condition at the time of the search. The Supreme Court granted review and has reversed and remanded the case to this court with directions to remand the matter to the trial court for a new suppression hearing at which the prosecution may present evidence to justify the search under Sanders or on any alternate grounds contained in the original motion and opposition thereto.
Because its reversal in this case is conditional, and depends on the outcome of the suppression motion, court must address the other issues defendant raised on appeal but which court did not address in its previous decision.