CA Unpub Decisions

Defendants Perkins Coie California P.C. (California PC) and Perkins Coie LLP (Perkins LLP) appeal an order denying their petition to compel plaintiff Harold DeGraff to arbitrate his claims against defendants and staying trial court proceedings pending arbitration. Applying Washington state law, the trial court concluded the parties’ contractual arbitration provision was both procedurally and substantively unconscionable. We conclude the provision is not procedurally unconscionable under Washington law. We also conclude that while certain portions of the provision are substantively unconscionable, the offending portions can be severed. Accordingly, we reverse.

California’s drug asset forfeiture laws (Health & Saf. Code, § 11469 et seq.) provide procedures under which property connected with certain unlawful drug activity may be forfeited to the state or local government. (Ramirez v. Tulare County District Attorney’s Office (2017) 9 Cal.App.5th 911, 917 (Ramirez).) “[F]orfeiture is disfavored,” however, and “the forfeiture statutes are strictly construed in favor of the person against whom forfeiture is sought, and procedural requirements set forth in the forfeiture statutes must be fully satisfied by the agency pursuing that remedy.” (Ibid.)In this case, plaintiffs Thomas Benson, Michelle Pierce, and Ole Stribling allege their property was seized by law enforcement officers but the resulting forfeiture proceedings were “invalid in the first instance” because they were initiated in violation of the statutory requirements for nonjudicial forfeiture. Plaintiffs petitioned for a writ of mandate seeking the return of their s

This is an appeal from the trial court’s postjudgment order requiring appellant Elizabeth Margaret Aldrich to pay $124,362.94 in restitution to victim M.M. This restitution order followed appellant’s no contest plea to three counts of first degree burglary and one count of identity theft, after which the trial court sentenced her to prison for a total term of five years, four months. We affirmed the judgment and sentence in a nonpublished decision filed on October 27, 2015. (People v. Aldrich (Oct. 27, 2015, A143517 [nonpub. opn.].) Appellant now appeals from the restitution order subsequently entered by the trial court on the ground that it lacks the support of substantial evidence and, as such, is an abuse of the court’s discretion. We affirm.

Defendant RJ Xavier Garrett was placed on probation after he pleaded no contest to felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a)) and misdemeanor sexual battery (§ 243.4). Defendant was ordered to serve one year in the county jail, to register as a sex offender (§ 290), and to comply with sex offender probation conditions, including electronic monitoring (§ 1202.8, subd. (b)).
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

Defendant Jermaine Quincy Brown pleaded no contest to two counts of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)) and admitted the allegation that he had previously been convicted of a violent or serious felony, i.e., a strike offense (§ 1170.12). On December 2, 2016, the court sentenced defendant to four years in prison to run consecutive to a 13-year prison sentence he was already serving arising out of a conviction in Alameda County.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.

On January 22, 2018, this court issued a peremptory writ in the first instance that ordered respondent court to vacate its order granting the District Attorney’s “Motion for Reconsideration of Sentence” and enter a new and different order denying the motion. Respondent court was further ordered to reinstate petitioner’s guilty plea entered on October 17, 2017, and at the conclusion of any proceedings conducted pursuant to subdivision (d)(1) of section 1170 of the Penal Code, respondent court was ordered to impose a sentence “no greater” than the sentence imposed by the court on October 17, 2017. The People conceded the petition had merit and the matter was deemed final as to this court forthwith. Accordingly, the clerk of this court issued the remittitur forthwith.

Y.T. is the maternal great aunt, caretaker, and de facto parent of M.C., who was taken into protective custody soon after his birth in August 2013. Parental rights were terminated in 2014, and this matter is in the permanent plan stage. M.C. has two older siblings, R.C. and A.C., who have been adopted by their paternal grandparents.
Y.T. appeals from the juvenile court’s order vacating a prior order terminating M.C.’s overnight sibling visitation and authorizing SSA to arrange one such overnight visit per month. The juvenile court made the order in response to a petition under Welfare and Institutions Code section 388 brought by Orange County Social Services Agency (SSA).

We appointed counsel to represent Richard Camarena on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Camarena’s behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124 (Kelly).)

Roberta J. Lacken was denied a modification of her first lien mortgage loan by Select Portfolio Servicing, Inc. (Select Portfolio). She sued Select Portfolio and Wells Fargo Bank seeking damages and other remedies for violation of the Homeowner Bill of Rights (HBOR), negligence, and violations of the California Unfair Competition Law, Business and Professions Code section 17200 et seq. (UCL). After she had four tries at pleading negligence, the trial court sustained without leave to amend Select Portfolio and Wells Fargo’s demurrer to that cause of action. The trial court later granted Select Portfolio’s motion for summary judgment. Lacken appealed from the judgment.

After a jury found Andrew Micah Carmona committed first degree robbery, the trial court found, inter alia, he had suffered a prior serious felony conviction. The trial court suspended imposition of sentence and placed Carmona on formal probation for three years on terms and conditions that included he violate no law. Carmona appealed from the judgment of conviction.
Days after he was sentenced, Carmona was arrested for falsely identifying himself to a police officer. A petition alleging Carmona violated probation was filed, and Carmona admitted he violated probation by falsely identifying himself to the officer. The trial court ordered his probation terminated and imposed sentence; Carmona appealed from that order. We have consolidated Carmona’s two appeals for all purposes.

Richard F. (father) appeals from the juvenile court’s May 12, 2017 orders granting the Stanislaus County Community Services Agency’s (Agency) Welfare and Institutions Code section 388 petitions and suspending visits with his sons, 11-year-old William and eight-year-old Alfred (collectively the boys). Father also appeals from the June 13, 2017 order issued at a subsequent section 366.26 hearing for Alfred that terminated his parental rights as to Alfred. Father contends there was insufficient evidence to support the juvenile court’s findings that (1) his visits were detrimental to the boys, and (2) Alfred was likely to be adopted within a reasonable time. We reject father’s contentions and affirm.

A jury found in favor of respondent City of Dinuba (City) and awarded it a judgment of $47,900 against appellant Dr. Kudlip Thusu (Thusu), based on the breach of a written guaranty. City sought attorney fees based on a contractual attorney fees provision in the guaranty. The trial court found City to be a prevailing party and awarded it $100,152 in fees. Thusu appeals and contends that it was an abuse of discretion for the trial court to find City to be a prevailing party and entitled to attorney fees as it only recovered some, but not all, of the damages requested against Thusu. After independently reviewing the record, we conclude that the trial court did not abuse its discretion in finding City to be a prevailing party. Accordingly, we affirm the judgment.

This appeal is from a resentencing on remand following an earlier appeal. At issue is whether the court erred in reimposing two one-year enhancements based on prior prison terms, pursuant to Penal Code section 667.5, subdivision (b).
It did err. One of these one-year enhancements was based on the same prior offense as a five-year enhancement the court imposed under section 667, subdivision (a). This was a prohibited dual use. The other one-year enhancement was based on an offense that had been reduced to a misdemeanor prior to the resentencing hearing, pursuant to section 1170.18 (Proposition 47). At the time of the resentencing, this offense thus could no longer support the enhancement, which requires a felony conviction. Both enhancements, consequently, were unauthorized and are subject to correction at any time. We direct the trial court to strike them.

Defendant Anthony Silva appeals from a postconviction order of the superior court denying his request for counsel to investigate whether to file a motion to determine the identity of deoxyribonucleic acid (DNA) on evidence gathered from him and from the victims of robbery and attempted murder. Defendant filed a motion in propria persona to have counsel appointed to assist him in having his DNA tested pursuant to Penal Code section 1405. After denying defendant’s motion for counsel, the trial court summarily decided the merits of defendant’s motion. Defendant contends the trial court erred in reaching the merits of his motion without first appointing him counsel. The People agree defendant was entitled to counsel to pursue his section 1405 motions, but argue that because the Legislature has not funded this statute for several years the county may, but is not obligated to, fund defense counsel to pursue the motion.