CA Unpub Decisions

A jury found defendant guilty of attempted first degree murder (Pen. Code, 664/187, subd. (a)).[1] The jury also found true that defendant had personally discharged a firearm causing great bodily injury or death within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). Defendant was sentenced to an indeterminate term of life with the possibility of parole for the attempted murder plus a determinate term of 25 years for the personal use of a firearm allegation. Defendants sole contention on appeal is that the trial court erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on a heat of passion theory. Court reject this contention and affirm the judgment.

The juvenile court found E. Z. (born in 1990) committed vandalism for the benefit of a criminal street gang and declared him a ward of the court pursuant to Welfare and Institutions Code section 602. Minor argues the juvenile court violated his right to a speedy jurisdictional hearing. As explained below, Court affirm the judgment.

Pursuant to a negotiated disposition in which a second felony count was dismissed, defendant pleaded no contest to attempted removal of a police officers non-firearm weapon, as a felony.[1] (Pen. Code, 664/148, subd. (b).)[2] At the subsequent sentencing hearing, the court suspended imposition of sentence and placed defendant on formal probation for 30 months on the condition, among others, that he serve six months in the county jail with 139 days credit for time served. The court also ordered defendant to pay attorneys fees under [section] 987.8 for the services of counsel. The court did not orally set an amount; however, the clerks transcript reflects an order for payment of $300 in attorney fees. Defendant contends the order for attorney fees must be stricken because the court made no determination of defendants ability to pay, as required by section 987.8, and because the record is devoid of any evidence to support an implied finding of ability to pay. The Attorney General, by letter brief, agrees that the record does not support a finding of ability to pay and also concurs, based on defendants circumstances, including a six month jail sentence that the interests of justice and judicial economy and efficiency would not be well served by a remand for determination of defendants present ability to pay the fees. He therefore agrees that the court may amend the judgment by striking the order. For the reasons discussed below, Court accept the Attorney Generals concession and will order the fees stricken.

Appellant Tony John James was convicted by a jury of first degree murder (Pen. Code, 187, subd. (a)).[1] The jury also found true allegations that appellant committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and that he personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)). Appellant contends his conviction must be reversed because the trial court abused its discretion in failing to discharge a juror who interviewed for a clerical job with the district attorneys office during jury deliberations. Court affirm.

Petitioner Dwayne Coufal is the successor trustee and a beneficiary of his parents inter vivos trust. The trust contains a no contest clause that disinherits any beneficiary who challenges either the trust or a trustors Last Will and Testament. Following the death of Dwaynes father, his mother executed a will that purported to revoke the trust and disinherit Dwayne in favor of his brother, Paul Coufal. When Paul introduced his mothers will into probate, Dwayne filed two petitions under Probate Code section 21320 seeking declarations that neither a petition to enforce the trust nor a petition to contest the will would be deemed to violate the no contest clause of the trust. The trial court granted the requested relief. Court affirm.

A jury found defendant guilty of grand theft in violation of Penal Code section 487, subdivision (a).[1] Defendant contends on appeal that the instructions given on specific intent denied him due process and the right to present his defense. He also maintains that the delay between the filing of the charge against him and the commission of the offense prejudiced his defense and denied him due process. Court are unpersuaded by his arguments and affirm the judgment.

Windsor R/V Waterworks Park Co. (Windsor) appeals from the judgment for Santa Rosa City Schools et al. (the District) after the sustaining of the Districts demurrer to Windsors amended cross-complaint with leave to amend. Yang Ko Lim, a 12-year-old seventh grade student at the Districts Rincon Valley Middle School (Rincon), drowned in a pool at Windsors water park on June 8, 2004, at a school-sponsored class party. Mayany Sam, as special administrator of Lims estate, sued Windsor for damages for wrongful death, and Windsor cross-complained against the District for apportionment of fault and indemnification on Sams complaint. Judgment was entered for the District after its demurrer to the cross-complaint was sustained without leave to amend. On Windsors appeal, we reversed the judgment and directed the trial court to enter an order sustaining the demurrer to the cross-complaint with leave to amend. (Windsor R/V Waterworks Park Co. v. Santa Rosa City Schools et al. (July 25, 2006, A110944) [nonpub. opn.].)
Court hold that the amended cross-complaint failed to state a cause of action because the District was shielded from liability for Lims death by Education Code section 35330, subdivision (d). Accordingly, Court affirm the judgment.

A jury convicted appellants Dolores Marie Duncan and Cruz D. Martinez (collectively, appellants) of second degree burglary (Pen. Code, 459, 460, subd. (b)). On appeal, Duncan contends the trial court erred in admitting incriminating statements she made to a law enforcement officer without being advised of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Martinez argues that the court erroneously instructed the jury regarding burglary and theft. Court affirm.

This is an appeal following a defense verdict for respondent Prudential Property and Casualty Insurance Company against appellants Alice Wong and Robert Lehman. The sole issue on appeal is whether the trial court erred in granting a motion in limine excluding any argument that Prudentials request for an appraisal of the value of the fire loss to their house constituted bad faith. Court conclude that no error occurred and affirm the judgment.

Dallas Brooks Achane (appellant) appeals from a judgment entered after a jury convicted him of felony battery resulting in serious bodily injury (Pen. Code, 243, subd. (d)) and misdemeanor simple assault ( 240). He contends the trial court erred in admitting into evidence portions of a 911 tape and a witnesss prior statement to a police officer. Court affirm the judgment.

The Alameda County Social Services Agency (agency) filed a petition pursuant to Welfare and Institutions Code section 300[1]on behalf of T.M., the son of Katie M. (mother). T.M. was removed from mothers home and placed with his father. Subsequently, the court terminated mothers reunification services. Agency filed a second petition after father was incarcerated for child endangerment and, at the jurisdiction and disposition hearing, mother requested that T.M. visit her once in November 2007 and once in December 2007 at the state prison where she was incarcerated. The court ruled that the decision whether to have T.M. visit mother in prison was within the agencys discretion. On appeal, mother contends that the lower court improperly delegated its authority on visitation to the agency. Court conclude that this appeal is moot and therefore dismiss it.

The mother of C.R. appeals from orders of the juvenile court denying a petition for modification and terminating her parental rights. She contends that her participation in a drug rehabilitation program and parenting classes for almost two months prior to the termination hearing warranted modification of the reunification plan; that the record does not support the courts finding that the parental relationship exception to termination was not applicable; and that the orders must be reversed because the court failed to secure compliance with the notice provisions of the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (ICWA). Court affirm.

Salvador Melendez appeals from an order denying his petition for writ of coram nobis. He claims the trial courts order denying his petition/motion to modify his conviction to a violation of Health and Safety Code section 11350 or 11351 should be reversed. Alternatively, he claims the case should be remanded to the trial court to determine the crime to which appellant actually pled. For reasons stated in the opinion, we order the abstract of judgment modified and affirm the order denying the petition for writ of coram nobis. The order denying the petition for writ of corum nobis is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that appellant was convicted of violating Health and Safety Code section 11351.5, and to forward the amended abstract to the Department of Corrections and Rehabilitation.

A modification decision.