CA Unpub Decisions

Petitioner in pro. per. seeks an extraordinary writ to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his daughter. Court dismissed the petition.

Plaintiff, representing himself in propria persona, filed suit against the warden of Salinas Valley State Prison, and against other prison officials. The complaint alleged damages arising out of being placed on “C” status at the prison, which resulted in Moore being denied yard access, outdoor exercise, and fresh air. Plaintiff thereafter filed a motion for leave to amend his complaint to assert a new claim and to name P. Mandeville as an additional defendant previously identified as a Doe defendant. The court denied plaintiff’s motion and likewise denied plaintiff’s motion for reconsideration. Plaintiff filed a notice of appeal from the order denying leave to amend. Plaintiff later filed an amended notice of appeal, referencing both the order denying leave to amend and the order denying his motion for reconsideration. Accordingly, since the appeal was taken from two nonappealable orders--the order denying motion for leave to amend complaint and order denying motion to reconsider--this court lacks jurisdiction to hear the matter. Court therefore dismissed the appeal.

Defendant appeals from judgment entered after a jury found him guilty of embezzlement for failing to return a rental car. Defendant contends there is no substantial evidence that he intended to injure or defraud the victim, and that the prosecutor engaged in misconduct during argument to the jury. Court disagreed and affirmed the judgment.

Defendant was convicted, following a jury trial, of one count of misdemeanor vandalism and two counts of resisting a peace officer. On appeal, he contends the trial court erroneously imposed two separate restitution fines. Court affirmed.

This appeal has been taken after the issuance of an order terminating parental rights to twin boys. Father and mother claim that the juvenile court erred in denying their Welfare and Institutions Code section 388 motion seeking presumed father status. Specifically, Father asserts that he must be deemed a presumed father because he filed a voluntary declaration of paternity and DNA testing proved that he was the twins’ biological father. Respondent Department of Health and Human Services (Department) asserts that his declaration was invalid because it did not conform to statutory requirements. Appellant counters that if the Department is correct that the declaration is invalid, then the order must be reversed because he was deprived of his Sixth Amendment right to effective assistance of counsel. Appellant also alleges that the Department deprived him of his right to due process by thwarting his efforts to have contact with his sons. Finally, he contends that he was not provided timely notice of the proceedings. Court concluded that termination of appellants’ parental rights is supported by the evidence and that the court did not err in any respect. Court also concluded that appellant did not receive ineffective assistance of counsel. Court therefore affirmed the judgment.

The City and County of San Francisco (the City) appeal from an order denying its motion to disqualify the law firm of Duane Morris LLP from serving as counsel of record for the plaintiffs in this case. The trial court rejected the City’s argument that disqualification is mandatory, pursuant to rule 3-310 of the California State Bar Rules of Professional Conduct (rule 3-310), which precludes an attorney from representing a client in a matter adverse to another current client without the informed written consent of both clients. Court affirmed.

At hearing on victim restitution, the court ordered defendant to pay $40 per month in victim restitution and set the matter for further proceedings. Defendant appeals from the restitution order. His attorney has raised no issues on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. Court concluded the order was not a final, appealable order and dismissed the appeal.

Appellant is a minor appearing through her grandmother and guardian ad litem. Appellant seeks damages for the wrongful death of her father, decedent, and, as his successor in interest, damages on the decedent’s behalf. Appellant appeals a summary judgment entered in favor of defendants. Court affirmed the summary judgment because the evidence did not establish Ellis’ liability.

Respondents move this court to dismiss this appeal filed by appellants on the grounds that court lacked jurisdiction because the two probate orders from which the appeal is taken are nonappealable orders under the Probate Code. Respondents also seek sanctions against appellants and/or their counsel for filing a frivolous and dilatory appeal. Court granted the motion to dismiss and denied appellants’ request that the court treat the appeal as a petition for a writ. Court denied the request for sanctions.

Defendant appeals from his convictions of misdemeanor battery and misdemeanor assault upon a peace officer arising from an altercation in the Los Angeles County Men’s Central Jail. Defendant argues that the trial court erred in failing to instruct the jury sua sponte on the defense theory that the officers involved used excessive force. Court reversed the conviction because of the instructional error.

Defendant appeals his conviction, by jury, of the first degree murder. Appellant contends the10-year gang enhancement does not apply to a life sentence, that the trial court erred in imposing two firearm use enhancements, and that the 25-year firearm use enhancement is subsumed by the base term of life without possibility of parole. He further contends the trial court erred when it instructed the jury in terms of CALJIC No. 2.01, because the instruction impermissibly lowers the prosecution's burden of proof, and when it instructed with CALJIC No. 3.18, because the instruction does not adequately describe the caution with which accomplice testimony should be considered. Defendant further contends the trial court erred when it admitted statements he made to a police informant and that the finding he was a member of a criminal street gang is not supported by substantial evidence. Respondent correctly concedes the trial court erred in imposing the 10-year gang enhancement and more than one firearm use enhancement. Court struke the 10-year gang enhancement and stay the 20-year firearm use enhancement. In all other respects, the judgment is affirmed.

Defendant appeals from judgments entered in three cases, contending that the trial court erred in awarding presentence custody credits. Appellant was sentenced to two years state prison in case number 2004040413 after pleading guilty to commercial burglary and admitting six prior felony convictions. The trial court awarded 222 days presentence custody credit. In two other cases (case number 2002019628 and case number 2002020650) for possession of a controlled substance, the trial court revoked probation and imposed 16 month sentences to be served concurrent to the two-year sentence in the previous case. Appellant was awarded 222 days presentence custody credit, and like the Costco case, ordered to pay fines and restitution. Jugement affirmed in all three cases..

Plaintiff petitioned the trial court for a writ of mandate directing the City to set aside its May 17 decision overriding the Commission’s disapproval of the proposed changes. The petition alleged six causes of action and named Buchanan as a real party in interest in each action: (1) the City violated the California Environmental Quality Act (CEQA) by failing to make findings regarding the environmental effect of the proposed changes; (2) the City violated state and local statutes in conducting design review proceedings; (3) the City violated state and local statutes in conducting proceedings regarding the easement; (4) City violated a state statute by determining without sufficient support that the approved changes are consistent with standards set by the Secretary of the Interior; (5) the City violated state and local statutes in approving the changes because the project constitutes a subdivision, and the City failed to comply with the requirements for approving a subdivision; (6) the City failed to make required findings regarding the effect of the changes on the conditions specified in the original conditional use permit. As to causes of action two, three, four, five and six, the order sustaining the demurrers is affirmed. As to cause of action one, the order sustaining Buchanan’s demurrer is affirmed.

Appellant appeals from post-judgment orders denying two ex parte motions to set aside a default and default judgment. Court reversed the clerk's default judgment because it is void. Court directed the trial court to vacate the $136,706 default judgment. On the other hand, the order denying Array's motion to set aside the default is affirmed.