CA Unpub Decisions

Defendant Rene G. Boisvert, appearing in propria persona, appeals from a judgment after bench trial in favor of plaintiff Donald M. De Gutz. Boisvert seeks reversal of the judgment on five grounds. De Gutz, also appearing in propria persona, opposes each ground and urges affirmance. We affirm the judgment.
At the outset, we note that both parties are appearing in propria persona Defendant requests that we liberally construe his briefs based on the United States Supreme Court recognition, in Hughes v. Rowe (1980) 449 U.S. 5, that allegations stated in a prisoner complaint filed in propria persona in federal court, however inartfully pleaded, should be held to a less stringent standard than formal pleadings drafted by lawyers. (Id. at p. 9.) These are not the circumstances before us. Nor do the other federal cases cited by defendant persuade us that we should do anything other than what our own long-standing state law calls for in the circumstances before us.

Appellant Christopher Dorner, an officer with the Los Angeles Police Department (LAPD), made a complaint against his field training officer, Sergeant Teresa Evans, accusing her of kicking a suspect, Christopher Gettler (Gettler). The Los Angeles Police Department Board of Rights (Board) found that appellant's complaint was false and therefore terminated his employment for making false statements. Appellant filed a petition for a writ of administrative mandamus in the superior court pursuant to Code of Civil Procedure section 1094.5, seeking to overturn the decision of the Board. The superior court denied his petition, and he now appeals. We affirm.
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Included is the response by Dorner and a Glossary of Terms.

These cross-appeals concern the scope of the City of Poway's (the City) sewer easement across multiple properties, including one owned by Lee Tartre and her husband, Don Tartre, and another by Diane Armstrong and Alex Armstrong (together with Tartre, Plaintiffs). After Plaintiffs sued the City and West Coast Arborists, Inc. (WCA), a company the City hired to remove trees on the easement, a jury found the City was negligent in the tree removal. The trial court later partially granted Plaintiffs' motion for judgment notwithstanding the verdict (JNOV), concluding that the City also violated Plaintiffs' civil rights under 42 U.S.C. section 1983 (section 1983).
The City appeals, contending the trial court erred in: (1) granting Plaintiffs' motion for JNOV on the section 1983 claim; and (2) denying its request for an injunction requiring Tartre to remove a tennis court on its easement. Plaintiffs also appeal, contending the trial court erred in: (1) denying their motion for JNOV against the City on their inverse condemnation, trespass and trespass to trees claims; (2) finding WCA was not liable under section 1983; and (3) denying their motion for JNOV against WCA on the trespass and trespass to trees claims.
We conclude the trial court erred when it granted Plaintiffs' motion for JNOV on the section 1983 claim because substantial evidence supported the jury's verdict denying this claim. Accordingly, we reverse the judgment on this claim. In all other respects, the judgment is affirmed.

Marysville police officers attempted a traffic stop of defendant Scott Robin Sutton because of how he was driving. Defendant fled from the officers, ran stop signs and drove at speeds of over 100 miles per hour. Defendant eventually drove his car off the road and was taken into custody. Defendant pleaded guilty to evading a police officer with willful and wanton disregard for the safety of people or property and additional charges against him were dismissed. (Veh. Code, § 2800.2, subd. (a).) The court sentenced defendant in accordance with the plea, to two years in state prison with credit for 116 days. The court imposed a restitution fund fine of $200, a suspended parole revocation fine of $200, a $40 court security fee, a $30 criminal conviction assessment, and a $4 penalty under Government Code section 76000.10, subdivision (c)(1). Defendant did not seek or obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Pursuant to a negotiated disposition, Xuong Luu (defendant) pleaded guilty to one count of failing to update his sex offender registration within five working days of his birthday (Pen. Code, § 290.012, subd. (a)).
On February 3, 2012, the court sentenced defendant to a two-year state prison term to be served concurrently with a prison sentence that he was serving in a case in Sacramento County. The People stipulated that defendant would receive presentence custody credits at "half-time." Accordingly, the court awarded defendant 100 actual days of custody credits and 100 days of conduct credits. Defendant filed a timely notice of appeal and sought and was granted a certificate of probable cause.
Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.
On September 28, 2012, we notified defendant of his right to submit written argument on his own behalf within 30 days. That time has passed and we have not received a response from defendant.
Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded there is no arguable issue on appeal. However, we do find that the court erred in considering defendant's ability to pay a court operations assessment (Pen. Code, § 1465.8) and a criminal conviction assessment (Gov. Code, § 70373).
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the . . . procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
Since appellant waived referral to the probation department, the record does not contain a statement of the underlying facts.

Pursuant to a negotiated plea agreement, defendant Dennis Aaron Thompson pleaded no contest to one count of felony vandalism (Pen. Code, § 594) and admitted one prison prior (id. § 667.5, subd. (b)). The trial court sentenced defendant under Penal Code section 1170, subdivision (h), to the aggravated term of three years for the felony and a consecutive one year for the prior conviction allegation; 260 days were to be served in county jail. Defendant was then to be released to a mental health program, the remainder of his sentence to be served under community supervision.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. The 30 days have expired and we have received no written argument from defendant.

In the dispositional order, the juvenile court sustained the allegation charging F.P. with one count of misdemeanor battery (Pen. Code, § 242). Pursuant to Welfare and Institutions Code section 725, subdivision (a), the court placed F.P. on probation, with terms and conditions, for a period of six months without adjudging him to be a ward of the court.
F.P. timely appealed from the dispositional order. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested we consider two issues, which we address in section 4. F.P was granted 30 days to file written arguments in his own behalf, but did not file anything.
We have examined the entire record and counsel’s Wende/Anders brief. We looked for issues other than those raised by counsel, but after considering the entire record, we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
2. Procedural History
In June 2011, a petition to declare F.P. a ward of the court was filed. The petition alleged F.P. committed one count of misdemeanor assault and one count of misdemeanor battery against “Jane Doe” (some capitalization omitted), identified in the detention report as F.P.’s mother (Mother). The juvenile court denied F.P.’s request to be released on home supervision program (HSP), and ordered that F.P. be removed from Mother’s custody and detained in juvenile hall in the custody of the probation department.
In July 2011, the juvenile court conducted a detention hearing pursuant to In re Dennis H. (1971) 19 Cal.App.3d 350, at the conclusion of which the court released F.P. to Mother’s custody. Later that month, the court placed F.P. on informal probation for six months pursuant to Welfare and Institutions Code section 654. Probation was made subject to terms and conditions, including attendance at school unless excused. The court stated that “[a]s long as you are attending school on a regular basis and there [are] no new law violations then this case will be dismissed on January 18th[, 2012].”

We appointed counsel to represent Okezie Augustus Orji on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. Orji was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court in conducting its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel listed as possible but not arguable issues: (1) whether there was sufficient evidence to convict Orji of theft; and (2) whether there was sufficient evidence to support a finding Orji had suffered three prior theft convictions pursuant to Penal Code section 666.[1]
We have reviewed the information provided by counsel and have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

Real party in interest Chad Kearns, whose property has long housed commercial stables, sought a conditional use permit to allow him to have wine tastings and special events on his property in the Modjeska Canyon area. Although a large number of neighbors supported the plan, not all the inhabitants of the area were supportive. The opposition was spearheaded by Save Our Specific Plan and Sherry Meddick (appellants). The Orange County Planning Commission (Planning Commission) denied the conditional use permit, but Kearns prevailed on his appeal to the Orange County Board of Supervisors (Board of Supervisors) after he modified his application. Appellants thereafter filed a petition for writs of both ordinary and administrative mandamus (Code of Civ. Proc., §§ 1085, 1094.5), seeking to overturn the board’s decision to issue the conditional use permit. The superior court denied the petition and this appeal ensued. We affirm.

A jury found defendant Luis Erminsul Villegas, Jr., guilty of shooting at inhabited dwelling house in violation of Penal Code section 246 as charged in count one of the information, and that the shooting was done for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). (All further statutory references are to the Penal Code.) Defendant was also found guilty of violating section 245, subdivision (b), assault with a semiautomatic firearm, as charged in count two, and that it was done within the meaning of section 186.22, subdivision (b)(1). The court sentenced defendant to state prison for a determinate term of six years to be followed by 15 years to life.
In his appeal, defendant argues there was insufficient evidence to support his convictions and that the trial court erred in failing to give a unanimity instruction for count two. The Attorney General agrees the trial court erred in instructing on count two. We agree and reverse defendant’s conviction on count two, but affirm his conviction on count one. Even though we reverse defendant’s conviction on count two, we do so after concluding substantial evidence supports his conviction on that count.

Defendant Ramon Diaz, a minor, was convicted of a special circumstance gang-related murder and found to have personally discharged a firearm causing death or injury in the commission of the murder. He contends, inter alia, there is insufficient evidence of deliberation and premeditation, the court erred in instructing the jury, and the prosecutor committed misconduct. We affirm.
I

Roberto C., in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing[1] as to his four-year-old daughter and two-year-old son. We conclude his petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 and dismiss the petition as facially inadequate.

M.Z. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her son D.S. III.[1] Mother contends that the trial court erred in finding that the sibling-relationship exception did not apply. (§ 366.26, subd. (c)(1)(B)(v).)
We disagree and affirm the court’s order.

This is an appeal from a judgment of dismissal entered when the court sustained, without leave to amend, defendants’ demurrer to plaintiff’s fifth amended complaint. Upon review under the proper standards for demurrers and when properly construed in light of the earlier versions of the complaint, we conclude the first and third causes of action, for discrimination and retaliation, are fatally flawed. Plaintiff has, however, sufficiently stated a cause of action for harassment, and the trial court erred in sustaining the demurrer as to the second cause of action. Accordingly, we affirm in part and reverse in part.