CA Unpub Decisions

Welfare and Institutions Code section 300. Father contends substantial evidence does not support the jurisdictional findings under section 300, subdivision (b), relating to his marijuana use, the order removing son from his custody, or the dispositional orders restricting his marijuana use. Courttt hold substantial evidence supports the jurisdictional findings and removal order. Court further hold that fathers contention regarding the orders restricting his marijuana use was forfeited by his failure to object below and, in any event, such orders were not an abuse of discretion. Accordingly, Court affirm the judgment.

Defendant Earl Wayne Laurie pleaded no contest to transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)--count one) and cultivation of marijuana (id., 11358--count three), and admitted a prior strike conviction (Pen. Code, 667, subd. (b)-(i)), in exchange for dismissal of other charges and an agreement that he would be sentenced to state prison for a term of four years (the low term on count one doubled based on his strike, with a concurrent sentence on count three). The trial court sentenced defendant in accordance with the plea agreement.
According to evidence presented at the preliminary examination, defendant was stopped by a sheriffs deputy because he was driving a pickup truck with a license plate that was obstructed by a tow hitch ball. Methamphetamine and marijuana plants were discovered during a consensual search of the vehicle. Defendant had a prior conviction for first degree burglary.

A jury found that defendant Jason McKinley Dillingham was guilty of first degree murder (Pen. Code, 187, subd. (a); further section references are to this code), that he personally discharged a firearm causing the death of the victim ( 12022.53, subds. (c) & (d)), that he carried out the murder for financial gain ( 190.2, subd. (a)(1)), and that he killed the victim while lying in wait ( 190.2, subd. (a)(15)). Defendant was sentenced to prison for life without the possibility of parole for the murder plus a term of 25 years to life for the discharge of a firearm enhancements.
On appeal, defendant claims that the trial court erred by discharging one of the jurors during trial. Court disagree and shall affirm the judgment.

On appeal, defendant contends the trial court should have excluded evidence that defendant had previously assaulted the victim. Court conclude the trial court did not err and, in any event, no prejudice is shown. Court shall affirm.

A defense motion to sever the September counts from the October counts was granted. A first amended information was thereafter filed, alleging only the October counts, renumbered as follows: count 6 became count 1, count 7 became count 2, and count 5 became count 3. All enhancement allegations alleged as to these counts in the former information were realleged, as was the prior prison term.
After defendants motion to suppress evidence as to the counts alleged in the first amended information was denied, defendant pled no contest to count 1 (possession for sale of cocaine base) and admitted the Health and Safety Code section 11370.2 allegation, in return for a stipulated state prison term of seven years and the dismissal of the remaining counts and enhancements.

In March 2008, the United States District Court for the Eastern District of California granted defendants application for a writ of habeas corpus. The district court ordered defendants conviction and sentence vacated and defendant released from custody unless a new charging document was filed within 60 days.
On May 5, 2008, within the 60 days, the Sacramento County District Attorney filed an information charging defendant with seven counts of committing lewd and lascivious acts on a child under the age of 14 based on events taking place in October 1998. ( 288, subd. (a).) Counts three through five included allegations of substantial sexual conduct. ( 1203.066, subd. (a)(8).) The information was amended on May 16, 2008, to set forth offense dates ranging from March to October 1998.

In this appeal, defendant Andrew Daniel Stanley contends the trial court erred in refusing to allow him Penal Code section 2900.5, subdivision (a) credits for the time he spent in residential drug and alcohol treatment facilities, on the ground defendant failed to complete any treatment program.
The People concede, and we agree, that the trial court erred in concluding defendant is categorically ineligible for custody credit. We remand to the trial court for a determination consistent with this opinion of the time credits, if any, to which defendant may be entitled for days spent in residential drug treatment.

Attorney Jo Ann Virata, who represented a defendant at trial on criminal charges, was sanctioned by the judge for violating a court order when she presented evidence that the judge had excluded pursuant to Evidence Code section 352. The violation occurred about an hour after the judge had chastised Virata for disobeying another court order. At the defendants request, the judge appointed a new attorney for him on the ground that Virata had provided ineffective assistance of counsel, and then granted the defendants motion for a mistrial on the same ground.
By way of a petition for writ of mandate, Virata challenges the $1,000 sanction imposed against her for violating the court order. Among other things, she asserts that the statute upon which the judge relied to impose the sanction (Code Civ. Proc., 177.5) is not applicable to criminal trials; that, in any event, she did not violate the judges in limine order; and that the sanction was predicated upon the courts animus against [her].
Having issued an alternative writ to review the order, we now reject Viratas claims of error. Thus, Court shall deny her petition for writ of mandate.

In this child custody dispute, the family court entered an order providing legal and physical custody to the child's father. The record indicates there were no prior permanent custody orders. The family court's order is fully supported by the record. The child's mother had a continuing conflict with the father and with her current boyfriend and failed to obey the family court's earlier orders with respect to visitation. These circumstances and her failure to take her son for regular medical and dental examinations when she had custody warranted the family court's determination the child's best interest would be served by giving the father legal and physical custody. Accordingly, Court affirm the family court's order.

On July 11, 2008, the San Bernardino County District Attorneys Office filed a petition under Welfare and Institutions Code section 602, subdivision (a), charging minor and appellant D.B. (minor) with battery under Penal Code section 242 (count 1); and vandalism under Penal Code section 594, subdivision (b)(1) (count 2). On July 14, 2008, the district attorneys office filed a first amended petition; it added three counts of resisting an officer under Penal Code section 148, subdivision (a)(1) (counts 3-5).
On August 12, 2008, minor entered into a plea agreement and admitted to the three counts of resisting an officer (counts 3-5). In exchange, the battery and vandalism charges were dismissed (counts 1 & 2). Minors case was continued to September 16, 2008, for a dispositional hearing.

On February 1, 2008, the court conducted a sentencing hearing in case Nos. MF43296 and MF46331 and sentenced appellant to a total term of 14 years and four months in state prison. As to case No. MF43296, the court imposed a consecutive one year term (one-third of the middle term) on count 1 and a consecutive one year term for the related gang enhancement. The court imposed a $200 restitution fine ( 1202.4. subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and awarded 120 days of custody credits.

Defendant Saul Herrera Flores stabbed Jose Santoyo with a machete after they got into an argument regarding the parking location of Santoyos truck. Santoyo died, and defendant was convicted of first degree murder with the use of a deadly weapon. (Defendant was also convicted of being a felon in possession of a firearm and resisting an officer, but these convictions are not at issue here.) Court have consolidated his direct appeal with his petition for writ of habeas corpus. In his direct appeal, he claims the jury was not properly instructed regarding provocation and its application to second degree murder and the court did not adequately reply to the jurys question about the meaning of deliberately as it applied to first degree murder. In addition, he asserts in his direct appeal and in his petition for writ of habeas corpus that his counsel was ineffective concerning these issues. Court will grant defendants petition and vacate the judgment, subject to further proceedings on remand as Court will direct in our disposition.

Ray Byron Ford was an inmate at Kern Valley State Prison (KVSP) when he observed correctional officers treat another inmate in a manner that offended him. Ford filed a claim with the Inmate Appeals Board, reciting the facts of the incident and alleging that he suffered personal injury as a result. The Inmate Appeals Board denied the claim, asserting that Ford could not submit a claim on behalf of another inmate. Ford unsuccessfully attempted to pursue the claim as one for his own injuries.
Ford filed a petition for a writ of mandate in the trial court naming the members of the appeals board as respondents and seeking to compel them to reconsider his claim. Ford appealed to this court when the petition was denied. Court conclude that Ford has not stated facts that would entitle him to any remedy he sought and affirm the order denying the petition.

Appellant Dan Olson appeals the denial of his petition for a writ of administrative mandamus. Olsons petition challenged a $5,110 fine imposed against him by the Tulare County Agricultural Commissioner (commissioner) for violating Food and Agricultural Code section 12973 in connection with the application to his walnut orchard of an insecticide known as Whirlwind. Olson contends the administrative proceedings violated provisions of Californias Administrative Procedure Act (APA) (Gov. Code, 11340 et seq.) as well as his constitutional right to due process.
Court conclude the proceeding did not violate the APA because neither the formal hearing procedure contained in chapter 5 of the APA nor the informal hearing procedure contained in article 10 of chapter 4.5 of the APA applies to imposition of fines for pesticide misuse. Also, the proceeding did not violate Olsons right to procedural due process. The judgment will be affirmed.