CA Unpub Decisions

In 1998, Donald Eugene Joseph (appellant) was convicted of a 1997 attempted willful, deliberate and premeditated murder (Pen. Code, 664/187, subd. (a))[1]with trial court findings of the use of a knife ( 12022, subd. (d)(1)), and the infliction of great bodily injury ( 12022.7, subd. (a)). The trial court also found true that he had three prior serious felony convictions that qualified him for three 5-year enhancements, as well as sentencing pursuant to the three strikes law ( 667, 1170.12). On March 25, 1998, the trial court sentenced him to an indeterminate term of 25 years to life, plus a determinate term of 19 years, comprised of one year for the weapon-use enhancement, three years for the infliction of great bodily injury, and 15 years for the three 5-year enhancements as appellant had the three prior convictions of a serious felony.

A jury convicted Robert Yanez of robbery and found true a firearm-use enhancement allegation. On appeal Yanez contends the trial court erroneously admitted certain evidence, and defense counsel rendered ineffective assistance of counsel. Court affirm.

. was born in 1999. At birth, she tested positive for methamphetamine. The dependency court sustained a petition filed by respondent Department of Children and Family Services (the department) making M. a dependent of the court under section 300 of the Welfare and Institutions Code.[1] In 2002, the case was closed and the court terminated its jurisdiction, with M. remaining at home with mother. That petition was not, however, the first or last involving mother. Respondent had filed another petition years earlier to make mothers now-adult son, Ricky, a ward after he fell through an open window when he was two years old and became a paraplegic from the fall. Mother never reunified with Ricky and he remained in foster care for the rest of his childhood.

In December 2005, when M. was six years old, deputy sheriffs arrested mother when they found methamphetamine and drug paraphernalia accessible to M. in mothers home. Consequently, the department filed a new section 300 petition, alleging mother could not care for M. because of her more than 30-year history of drug abuse. The department placed M. with an adult brother (not Ricky) and recommended no family reunification services for mother because she had not reunified with Ricky. ( 361.5, subd. (b)(10) [court need not order reunification services if parent previously failed to reunify with another child].) Mother entered a drug and alcohol treatment facility in January 2006. She also pleaded no contest to the petitions allegations, which the court sustained. At the disposition hearing in February 2006, the court ordered monitored visitation for mother and M., but no reunification services. The court also scheduled a permanent plan hearing for later in the year.
Mother Darla M. appeals from termination of her parental rights in M. Court affirm.

M.O. appeals from the order denying her Welfare and Institutions Code section 388 petition without a hearing and the order terminating her parental rights as to her two youngest children, Jennifer M. and Michael M. Court affirm both orders.

M. and Bonnie R. (the children) and the Department of Children and Family Services appeal from the judgment and orders of May 17, 2007, declaring the children dependents of the court under Welfare and Institutions Code section 300. Appellants contend it was error to dismiss the allegations that Delores R. (father)[2]sexually abused M. because sufficient evidence supports the allegation. As substantial evidence supports the dependency courts dismissal of the sexual abuse allegations of the petition, Court affirm the judgment and orders.

Ryan Jeffrey Garrett appeals from a judgment imposed upon his guilty plea to grand theft (Pen. Code, 487) and possession of marijuana for sale (Health & Saf. Code, 11359). The trial court sentenced him to the aggravated term of three years on the grand theft charge and a consecutive eight-month term on the marijuana possession offense. Defendant contends that the trial courts sentence violates Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466 because the sentencing decision was based on facts neither admitted by him nor found true by a jury. Court affirm.

Stanley Sparks and Linda Sparks appeal from a judgment entered upon the trial courts grant of the summary judgment motion of respondent Metalclad Insulation Corporation (Metalclad). Appellants contend that the trial court erred in sustaining Metalclads objections to declarations they filed in opposition to the motion and in concluding that they failed to demonstrate a triable issue of material fact. Court reverse the summary judgment order and vacate the judgment.

The zoning administrator of the City and County of San Francisco[1](zoning administrator) notified Advertising Display Systems 1, LLC (ADS) that it must remove a billboard. ADS appealed the zoning administrators determination to the San Francisco Board of Appeals (board of appeals). At the hearing, the board of appeals stated that it was upholding the zoning administrators determination and, subsequently, it mailed a notice of its order and decision. ADS filed a petition for writ of administrative mandamus in the superior court against San Francisco, the San Francisco Planning Department, and the zoning administrator (collectively, respondents). The petition was filed within 90 days of the mailing of the board of appeals order and decision but it was more than 100 days after the board of appeals had orally announced at the hearing that it was upholding the zoning administrators ruling.
The trial court sustained without leave to amend respondents demurrer against ADSs petition. The court found that the statute of limitations under Government Code section 65009[2]barred ADSs action and that estoppel could not be invoked against respondents. ADS appeals and claims the lower court erred by failing to use the date of the mailing of the board of appeals decision as the date of accrual for purposes of the statute of limitations. Court agree that the mailing of the board of appeals notice of decision triggered the running of the statute of limitations and ADSs petition was timely. Accordingly, Court reverse the judgment.

Stephanie B. (Mother) appeals after the juvenile court ordered a plan of legal guardianship for her son, Logan P., and terminated Logans dependency at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). She contends the Alameda County Social Services Agency (the agency) did not exercise due diligence in trying to find her, and that the juvenile court did not comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). Court affirm.

R.R. and his sister N.R. (Minors) appeal from orders of the Alameda County juvenile court entered after the six-month review hearing in their juvenile dependency case. (See Welf. & Inst. Code, 366.21, subd. (e).)[1] Minors object to two aspects of the orders(1) the juvenile courts demand that Minors return from their current placement in Russia to Alameda County for further evaluation (Transportation Order) and (2) the juvenile courts reservation of jurisdiction (Order Reserving Jurisdiction) to determine whether reunification services for H.R. (Father) shall be deemed to commence only upon Minors return from Russia. (See generally Welf. & Inst. Code, 361.5.) Because we conclude that Minors challenges to the orders are not currently fit for judicial decision and are therefore unripe, we will affirm the orders without prejudice to Minors right to raise their challenges should these issues become ripe in the future.
Father cross-appeals from the juvenile courts findings that he received reasonable reunification services, that the return of Minors would create a substantial risk of harm to them, and that Minors current out of home placement is necessary and appropriate. Court conclude that these findings are supported by substantial evidence and affirm them.

Defendant D.M. appeals from an order of the juvenile court committing him to the Division of Juvenile Justice (DJJ). His counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Court affirm.

Defendant Ronny Harris appeals his conviction by court trial to grand theft from the person of another (Pen. Code, 487, subd. (c)) (count 1), evading an officer (Veh. Code, 2800.2, subd. (a)) (count 2), and misdemeanor destruction of evidence (Pen. Code, 135) (count 3). Allegations regarding three prior strikes and four prior prison terms were found true. He was sentenced to 29 years to life in state prison. Counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief.

Edwin Acosta appeals from judgment entered after conviction following his negotiated plea of no contest to possession of methamphetamine. Defense counsel stipulated to a factual basis for the plea. The court sentenced Acosta to the agreed term of 16 months running concurrently with his sentence in Case No. BA301881.
The judgment is affirmed.

In a joint jury trial, Gerardo Vasquez and Nelson Perez were convicted of robbery (Pen. Code, 211), during which Vasquez personally used a firearm (id., 12022.53, subd. (b)) and Perez was armed with a firearm (id., 12022, subd. (a)(1)). The convictions arose from an incident that occurred in the early morning hours of August 14, 2006, when defendants approached a man sitting in his car getting ready to go to work, Vasquez displayed a gun and demanded the victims money, and defendants fled after the victim complied with the demand.[1] Vasquez and Perez were also each charged with carjacking and two counts of robbery arising from a separate incident. The jury was unable to reach verdicts on the counts arising from the separate incident, which were dismissed in furtherance of justice. Vasquez was sentenced to the middle term of 3 years for robbery with a 10-year enhancement for firearm use. Perez was sentenced to the middle term of 3 years for robbery with a 1 year enhancement for a principal being armed.
We have examined the entire record and are satisfied that defendants counsel have fully complied with their responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.) The judgments are affirmed.