CA Unpub Decisions

Petitioner Paul Ahumada (petitioner) filed a habeas corpus petition contending, among other things, that the trial court erred in imposing both a Penal Code section 12022, subdivision (a)(1) enhancement (“a person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment”) and a Penal Code section 12022, subdivision (b)(1) enhancement (“[a] person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment”) as to each of his nine robbery convictions. This court ordered the Attorney General to file an informal response addressing whether the trial court’s imposition of both enhancements constitutes an unauthorized sentence. (Pen. Code, §§ 12022, subd. (e), 1170.1, subd. (f).) The Attorney General’s informal response concedes that one of the two imposed weapon enhancemen

Michael F., the father of then three-month old M.F., challenges the juvenile court’s jurisdictional findings that M.F. was at substantial risk of serious physical harm due to his ten-year history of methamphetamine use and that father failed to protect M.F. We find substantial evidence supports the juvenile court’s jurisdictional findings. We thus affirm.

Plaintiff Kojoklyan appeals from a judgment entered in favor of defendants Veronica Lee (Lee) and FHT, Inc. (FHT) after the trial court sustained defendants’ demurrer without leave to amend to all causes of action alleged in plaintiff ’s complaint. He further complains that the court erred in failing to award him monetary discovery sanctions. We conclude that plaintiff stated a cause of action in negligence for his physical injury and personal property damages, but that his other causes of action fail as a matter of law, and that the court did not err in denying plaintiff ’s sanctions request. We, therefore, affirm in part and reverse in part.

The juvenile court adjudicated 10-year-old H.E. a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (j), finding mother failed to make an appropriate plan for the child’s safety when she left her daughter in the physical custody of the child’s grandfather. The court reasoned that mother’s failure to establish a formal arrangement with grandfather regarding H.E.’s support was sufficient to assume jurisdiction over the child, even though it was undisputed that for years H.E. had been physically safe and well provided for in grandfather’s care. On appeal, mother contends the evidence was insufficient to show the arrangement placed H.E. at “substantial risk” of suffering “serious physical harm or illness” as required by section 300, subdivision (b)(1), or that H.E. was at risk of being “abused or neglected” as defined by section 300, subdivision (j). We agree with mother, and reverse.

Defendant and appellant Gerald W. Woods appeals from an order denying his petition for resentencing under Proposition 47. In 2012, appellant pleaded no contest and was convicted of grand theft of an electric wheelchair under Penal Code section 487, subdivision (a), which, at that time, required that the value of the stolen property exceed $950. Although the information alleged that the property had a value exceeding $950, appellant indicated in his petition that the amount in question is “not more than $950.” Thus, appellant requested that the felony sentence be recalled and that he be resentenced to a misdemeanor pursuant to Penal Code section 1170.18. Respondent opposed the petition, indicating that appellant “is ineligible for the relief requested” in that the value is “$1,100 +/-.”

Appellant Mel Correa was charged with assault with a deadly weapon (AWD) in violation of Penal Code section 245, subdivision (a)(1). The information further alleged that appellant had suffered two prior convictions for carrying a concealed dirk or dagger (§ 21310), one of which was in connection with his participation in a criminal street gang (§ 186.22) and was therefore alleged to be a serious and/or violent felony under the provisions of the “Three Strikes” law (§§ 667, subd. (d) & 1170.12, subd. (b)). It was further alleged that appellant was subject to a one-year prison enhancement under section 667.5, subdivision (b) and a five-year enhancement under section 667, subdivision (a)(1).

Appellant Ricardo Avila appeals from the judgment entered after this court remanded the case for resentencing. He claims that the trial court erred (1) in failing to consider his good behavior in prison as a post-conviction mitigating factor when it imposed a sentence on his conviction of assault upon a peace officer, and (2) in calculating his conduct credits. As we shall explain, we agree and remand for resentencing.

Defendant Michael Anthony Miller was charged by information with first degree residential burglary (Pen. Code, § 459). It was also alleged that defendant served five prior prison terms, and suffered a strike conviction (§§ 667.5, subd. (b), 1170.12). The burglary count and special allegations were tried to the jury, and the jury found defendant guilty of first degree burglary, and all special allegations except for the strike allegation were found true. The trial court found “good cause” to vacate the jury’s true findings as to the prison priors, and sentenced defendant to the high term of six years for the burglary. Defendant also received a concurrent eight-month term for a probation violation. Defendant filed a timely notice of appeal.

A jury convicted Mario Aguilar (defendant) of one count of attempted murder (Penal Code, §§ 664/187, subd. (a); count 1) and three misdemeanor counts of child abuse (§ 273a, subd. (b); counts 2-4). On appeal, defendant contends reversal is compelled because the trial court erroneously admitted irrelevant and highly prejudicial evidence that he had served a prior prison term. We disagree and affirm.

This appeal requires us to consider the procedures a trial court must follow in imposing sanctions for violations of Code of Civil Procedure section 1008. That section, which establishes the rules for filing motions for reconsideration, provides that a court may impose sanctions for violations “as allowed by [s]ection 128.7.” (§ 1008, subd. (d).) May a trial court sanction a party for violating section 1008 without allowing the party the benefit of a 21-day safe harbor to withdraw the offending motion, as is required by section 128.7, subdivision (c)? Our answer to that question is no. Because plaintiff and appellant Moofly Productions, LLC (Moofly) did not receive the required 21-day notice to withdraw its motion for reconsideration and avoid sanctions, the sanctions award against Moofly and Moofly’s attorney, Nina M. Riley (Riley), must be reversed.

Appellant Robert Davis challenges the trial court’s post trial order requiring him to pay $49,426.08 in California Public Employees’ Retirement System (CalPERS) benefits to his ex-wife, respondent Nam Lee Davis. The couple separated in 2009, and CalPERS calculated in 2015 that Nam Lee was entitled to $716.32 per month as her share of Robert’s benefits. CalPERS did not pay Nam Lee retroactively for any benefits to which she was entitled for the period from 2009 to 2015. Nam Lee requested that the court order Robert to pay Nam Lee her share of these retroactive benefits. Robert contends that the trial court abused its discretion by issuing the order prematurely, without allowing CalPERS to calculate the amount owed for that time period. We disagree and affirm the trial court. Robert has failed to show that CalPERS’s prior calculation of Nam Lee’s benefits was insufficient to support the court’s order.

Plaintiffs and appellants Beatrice Ward and Karyn Ward challenge the trial court’s order denying their motion to vacate the voluntary dismissal of their case under Code of Civil Procedure section 473, subdivision (b), based on a mistake of law. They also appeal the order granting defendant and respondent Allstate Insurance Company’s motion for summary adjudication. As we shall explain, the court did not err in denying the motion to vacate the dismissal because plaintiffs failed to demonstrate that their counsel made a reasonable and honest mistake of law. In addition, we dismiss the appeal of the order granting summary adjudication because it is not appealable.

Appellant, James O’Brien challenges the family court’s denial of his motion under Family Code section 2122 to set aside portions of a judgment disposing of community property assets. He argues respondent committed fraud and nondisclosure of certain encumbrances on community property, rendering the distribution judgment unjust. Because his motion to partially set aside judgment was untimely, we affirm the family court’s order denying it.

Plaintiff Christopher Baldwin appeals from an order granting a motion by defendants Funk Shui, LLC, and Jason Alkhaldi to recover the attorney fees they incurred to enforce a settlement agreement. We affirm.