CA Unpub Decisions

Appellant D.K. (mother) appeals the order terminating reunification services. She maintains that respondent San Francisco Department of Human Services (Department) should have required an appropriate mental health diagnosis and a workable plan for maintaining her mental health, and that it failed to do so. Hence, she reasons that reasonable reunification services that took into account her special needs were not offered or provided. Court disagree and affirm.

Petitioner Jessica W. (mother) is the mother of D.D., who was detained by the Alameda County juvenile court shortly after her birth. Mother seeks review by extraordinary writ of the juvenile courts order terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends the order must be reversed because she did not receive reasonable reunification services. Court deny the writ on the merits.

Plaintiff filed a notice of appeal from an order sustaining without leave to amend the demurrer interposed by defendant to plaintiffs amended complaint. Defendant has moved that the appeal should be dismissed because plaintiff has purported to appeal from a non appealable order. Plaintiff filed opposition to the motion.

An individual hired an accountant to prepare her tax returns. She ultimately terminated the services of the accountant prior to the completion of any returns. The accountant sued the individual for his hourly fee for the time spent working on her file. This suit was voluntarily dismissed on the day set for trial. The individual then brought a malicious prosecution against the accountant and his attorney. The accountant and attorney prevailed on an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and the individuals malicious prosecution action was dismissed. The accountant and the attorney were awarded their attorney fees as prevailing movants on the anti SLAPP motion. The individual appeals. Court affirm the orders in favor of the attorney, but reverse the orders in favor of the accountant.

Following a jury trial, defendant Troy Harold Gray was convicted of possession of a controlled substance (Health & Saf. Code, 11350)[1]and admitted he had previously suffered one prior serious or violent felony conviction under the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12) and had served five separate prison terms for felonies ( 667.5, subd. (b)).[2] Thereafter, the trial court sentenced defendant to four years in state prison or double the middle term of two years.[3] In addition to a restitution fine of $200 ( 1202.4, subd. (b)), a laboratory fee of $100 (Health & Saf. Code, 11372.5, subd. (a)) and a court security fee of $20 ( 1465.8, subd. (a)(1)), the court ordered defendant to pay attorneys fees pursuant to section 987.8 in the amount of $3,000. A parole revocation fine was imposed and suspended ( 1202.45).
On appeal, defendant contends, the People acknowledge, and we agree the order directing him to pay attorneys fees must be stricken, in that the trial court failed to provide him with notice and a hearing as required by section 987.8. Court also conclude substantial evidence does not support the courts implied finding defendant had the ability to pay for all or part of his representation. Court strike the order requiring defendant to pay attorneys fees. In all other respects, the judgment is affirmed.

Defendant Larry Davis was convicted by a jury of aggravated arson as a result of setting fire to his former girlfriends house for the second time. On appeal, he contends the Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 220, as given to the jury, failed properly to instruct that the evidence must induce a subjective certainty in each of the jurors to satisfy the due process requirement of proof beyond a reasonable doubt. Court find no error and affirm.

A lawyer sued her former law firm for wrongful termination and discrimination. The firm moved to compel arbitration under the terms of a written, but unsigned, employment contract. The trial court denied the motion to compel arbitration, and the firm then filed this appeal. Court reverse, and remand the cause with directions to the trial court to grant the firms motion to compel arbitration.

June Teecher appeals the dismissal of her complaint against four defendants after the sustaining of demurrers without leave to amend. The defendants are The Bascom Group, LLC (Bascom), owner of the apartment building where she resides; Magnolia Park Apartments (Magnolia); Commercial Services, Inc. (Commercial), a general contractor; and Plantasia, Inc. (Plantasia), a landscape contractor. Teecher alleges in her complaint that the defendants, in the course of construction and landscaping work, caused her personal injury and damage to her personal property. The trial court sustained the demurrers based on the two-year statute of limitations for personal injury actions (Code Civ. Proc., 335.1).

A jury convicted defendant Joel L. Williams of burglary, attempted robbery, and assault with a firearm. The jury found true allegations that defendant committed the offenses for the benefit of a criminal street gang and personally used a firearm in the commission of the offenses. Williams raises numerous issues on appeal. Court conclude: (1) substantial evidence does not support the gang enhancement, and (2) the trial court erroneously imposed a firearm enhancement for the burglary count on Penal Code section 12022.53 instead of section 12022.5. Court affirm the judgment in all other respects.

Plaintiff and appellant Robert Hicks, in pro. per., appeals from the summary judgment entered against him and in favor of defendant and respondent Los Angeles County Metropolitan Transportation Authority (MTA) on August 28, 2007. MTA has not filed a respondents brief. (Cal. Rules of Court, rule 8.220(a)(2).) Court affirm.

Appellant Enrique Diaz and Luis Vega appeal their conviction and sentencing for second degree murder and misdemeanor battery. Diaz contends the trial court erred in (1) failing to instruct sua sponte on the defense of withdrawal from participation in a crime and (2) denying a defense motion for new trial based on newly discovered evidence. Diaz further contends that the state court construction penalty and DNA penalty were erroneously calculated. Vega contends that (1) substantial evidence does not support his conviction for aiding and abetting second degree murder, as the offense was not a reasonable and probable consequence of assault, battery or breach of the peace; (2) there was insufficient evidence corroborating the adverse testimony of an accomplice; and (3) the prosecutor misled the jury concerning the sufficiency of the corroborative evidence. Respondent concedes the state court construction and DNA penalties were wrongly assessed and should be stricken. Court modify the judgments to delete the improperly assessed penalties and affirm.

Joshua Jonathan Lazos appeals his conviction for the first degree murder of Daniel Santoyo. He contends: (1) The trial court should have instructed on voluntary manslaughter and on imperfect defense of another person, or, alternatively, he received ineffective assistance of counsel because his counsel did not request instructions on those subjects. (2) The trial court gave inadequate instructions on aiding and abetting. Court find no error and affirm.

Defendant Juan Antonio Flores challenges his automobile burglary conviction on the grounds the evidence is insufficient to support the verdict and the trial court erred in calculating his presentence custody credits. We conclude substantial evidence supports defendants automobile burglary conviction. We further conclude the court erred in calculating his presentence custody credits and modify the judgment accordingly. In all other respects, court affirm the judgment.

Dale Siegel (Dale) appeals an order that modifies and eventually terminates the spousal support obligation of her ex-husband, Barry Siegel (Barry). According to Dale, the modification and termination were improper because there was no change of circumstances. In particular, she contends that the trial court abused its discretion by entering a step-down order regarding her spousal support, by making the support modification retroactive, and by ordering jurisdiction to terminate on September 30, 2009, even though case law advises that jurisdiction should be retained when the marriage was long in duration. Court reverse and remand for further proceedings because the family court failed to consider the parties stipulated judgment and all statutory factors when entering the step down order, and because the circumstances do not support termination of jurisdiction at this time.