CA Unpub Decisions

In a new petition filed January 11, 2008, the minor was charged pursuant to Welfare and Institutions Code section 602 with one count of second degree robbery. (Pen. Code, 211.)
A joint trial for defendant and the codefendant was heard on January 28, 2008. The court sustained the petition, and the minor was made a ward of the court, released to the custody of his mother, and given credit for time served.

Petitioner Alan B. is the presumed father (father) (see Fam. Code, 7611) of the minor. By this petition, he challenges the trial courts order terminating reunification services, arguing that the services he received were inadequate and not properly offered. Court find no error and deny the petition.

Appellant Esmeralda Vasquez Maciel was convicted after jury trial of possessing methamphetamine for purpose of sale. (Health & Saf. Code, 11378.) She was placed on probation for a period of five years. The court ordered her to pay a $50 criminal laboratory fee pursuant to Health and Safety Code section 11372.5 (lab fee) plus penalty assessments on this amount for a total of $162.50. It also ordered her to pay a $200 fine pursuant to Penal Code section 672 (Penal Code section 672 fine) plus penalty assessments on this amount for a total of $650.
Appellant challenges admission of opinion testimony that she possessed the methamphetamine for sale. Court are not persuaded. Appellant also argues the lab fee is a fine and therefore the catch-all Penal Code section 672 fine is unauthorized. We agree and will modify the judgment to strike the Penal Code section 672 fine and associated penalty assessments. As modified, Court affirm.

Appellant challenges the juvenile courts jurisdictional finding declaring her son D.D. a dependent child (Welf. & Inst. Code, 300) and its dispositional order removing him from her custody. ( 361.) Court affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter D. Court deny the petition.

Cody Lee King appeals the sentence imposed upon him following his conviction on charges of first degree murder, first degree robbery and first degree burglary. Specifically, King contends the court erred by ordering him to serve separate (albeit concurrent) sentences for the robbery and burglary convictions, in addition to the sentence imposed for the murder. Because all three crimes were part of a single course of indivisible conduct carried out with the intent to fulfill a single objective, he argues the separate sentences violated Penal Code section 654s prohibition against double punishment. Court agree.

On appeal, Garcia contends the trial court committed reversible instructional error by failing to sua sponte instruct the jury on the offense of involuntary manslaughter due to voluntary intoxication to the point of unconsciousness. In the alternative, he claims trial counsel rendered ineffective assistance by failing to request this instruction. Garcia also argues the court erred by refusing defense counsels request for CALCRIM No. 511, a standard instruction on excusable homicide when there is evidence the defendant accidentally killed someone in the heat of passion. Court affirm the judgment.

Preston and Lois Avery (collectively, the Averys), through their revocable family trust, are the owners of approximately 6.56 acres of real property in Santa Clara County located on the east side of Monterey Road and with a street address of 150 Kirby Avenue (Property). In November 2001, the Planning Commission of respondent County of Santa Clara (County) voted to revoke a long-existing, oft-modified, use permit relative to the Property (use permit). The Averys administrative appeal of that revocation ultimately resulted in an October 2003 decision of the County Board of Supervisors (hereafter, sometimes Board) granting the appeal but referring the matter back to the Planning Commission for further consideration of whether the use permit should be revoked, modified, or reaffirmed. The Averys filed in the superior court a combined mandate petition and complaint in January 2004 challenging the Boards decision and seeking, inter alia, damages for inverse condemnation. The trial court granted summary judgment in favor of the County and the Averys appeal from a judgment entered on that order.
On appeal, the Averys argue that the court erred in granting summary judgment because (1) their petition for writ of mandamus was properly maintainable, (2) there were triable issues of material fact supporting their inverse condemnation claim, (3) their claim for declaratory relief was not subject to summary adjudication, and (4) summary adjudication of the Averys claim for injunctive relief was improper. We conclude that there was no error by the court in granting summary judgment. Accordingly, Court affirm the judgment entered on the order granting summary judgment.

Pursuant to a negotiated disposition, on August 30, 2007, defendant Victor Quiroz pleaded guilty to one count of transportation or sale or distribution of a controlled substance. (Health & Saf. Code, 11352, subd. (a), count two). Defendant admitted that he had suffered one prior felony conviction within the meaning of Health and Safety Code sections 11370.2 and 11370, subdivisions (a) and (c). In exchange for his no contest pleas, defendant was promised his sentence would be seven years in state prison (top/bottom). The judgment is affirmed.

Award of attorney's fees as sanctions for violation of in limine order was neither within the court's inherent powers nor authorized by statute. Mutual agreement by parties to an in limine order will not authorize imposition of monetary sanctions as a remedy unless the agreement specifically so provides. Sanctions on counsel imposed under Code of Civil Procedure Sec. 128.7 for falsely certifying through oral and written presentations to the court that there was evidentiary support for the complaint's factual allegations against a defendant after the trial court had granted motion in limine excluding much of plaintiff's evidence against that defendant, and that such allegations were not being maintained primarily for an improper purpose after that point, were error where sanctioned counsel presented sufficient evidence to avoid nonsuit. Where plaintiffs' evidence was sufficient to avoid summary judgment and judgment on the pleadings, and trial court made no findings that their claims were frivolous, action was brought with "reasonable cause," precluding award of attorney's fees and expert witness fees as costs under Code of Civil Procedure Sec. 1038. Trial court did not abuse its discretion in awarding costs to prevailing defendant under Sec. 998 where timely offer to pay each plaintiff $1,000 in settlement was reasonable because plaintiffs' case was based entirely on "shaky" circumstantial evidence.

After a court trial on an action to recover rent due from defendant and appellant Steven Ho pursuant to a commercial lease, the trial court awarded plaintiffs and respondents Nicholas and Emanuel Stamatakis $106,200, in addition to $110,089 in interest. Ho appeals the judgment, contending that (1) the trial court abused its discretion by requesting and accepting his direct examination in the form of his attorneys trial brief, thus precluding a sound credibility assessment and (2) no substantial evidence supports its finding that the Stamatakises acted reasonably to mitigate their damages. Court affirm the judgment.

The statutory deadline for filing a petition for writ of mandate under Code of Civil Procedure section 1094.5[1] is extended by section 1094.6, subdivision (d) (section 1094.6(d)) to 90 days from the petitioners receipt of the administrative record, if the petitioner files a written request for preparation of the record (record request) within 10 days after the administrative decision becomes final. This appeal raises the issue whether, in order for this extension to apply, the record request must merely be mailed to the agency within the 10-day period, or must actually be received by it during that time. We hold that a record request under section 1094.6(d) is not filed unless and until the agency actually receives it. Accordingly, Court affirm the trial courts order denying appellants petition as untimely.

Jason Perez appeals from a judgment following a plea of no contest and imposition of sentencing. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he could file a supplemental brief raising any issues he wishes to call to this courts attention. Court have not received any supplemental brief. Court have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.

Thomas H. Lutge appeals from an order extending his child support obligations for his incapacitated daughter beyond her 18th birthday. He contends that the court erred in extending his support payments because there was no evidence that his daughter would become a public charge in the absence of the court ordered support. He also claims that the daughters mother, Barbara Acker Hitta, should have been ordered to bear the full financial burden of supporting their daughter because she allegedly stole approximately $150,000 from him. Court affirm.