CA Unpub Decisions

A jury found defendant Frank James guilty on one of four counts of lewd and lascivious acts with a child under the age of 14. (Pen. Code, 288, subd. (a).) He was sentenced to the upper term of eight years in prison. Defendant contends that the trial court committed judicial misconduct by disparaging defense counsel and aligning himself with the prosecution. He argues that it deprived him of federal and state constitutional rights to a fair trial, due process, and effective assistance of counsel. His claim is forfeited and, in any event, without merit. Defendant also contends that the imposition of the upper term sentence for his conviction violated his constitutional rights to a jury trial and due process of law, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California(2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court disagree.

Defendant Christopher Steven Fay stole a bicycle after codefendant Curtis Taylor assaulted the bicycles owner. An information charged both men with second degree robbery and battery with serious bodily injury. (Pen. Code, 211, 243, subd. (d); unspecified statutory references that follow are to the Penal Code.) The jury acquitted defendant Fay of the charged offenses but convicted him of the lesser included offense of grand theft; it convicted codefendant Taylor of the lesser offense of battery but acquitted him entirely of theft-related charges. The court found a prior offense charged against Fay to be true. This appeal involves only defendant Fay. Sentenced to an aggregate prison term of four years, he contends that (1) his attorney failed to provide the effective assistance of counsel when he conceded that defendant took the victims bicycle, and (2) several instructional errors occurred. Court affirm the judgment.

Following an apparent crime spree he claims to have undertaken to pay a drug debt, defendant Edward Paul Sullivan entered a negotiated no contest plea to six counts of second degree robbery. (Pen. Code, 211.) According to the probation report, defendant used an air pistol to threaten the victims into giving up cash.
Defendant was sentenced to a state prison term of 10 years, comprised of the upper term of five years on count 1, plus consecutive one-year terms (one-third the midterm) for each of the remaining five counts. The judgment is affirmed.

After entering a negotiated plea of no contest to one count of child molesting (Pen. Code, 647.6, subd. (a)), the minor was continued a ward of the juvenile court and placed on probation for a maximum period of one year. He was ordered to pay a restitution fine of $25, a fine of $25 to the county general fund, and a penalty of $49.38. The court also directed that fines and penalties imposed in an earlier disposition remain in effect. The minor was given 45 days of custody credits. The minor appeals contending: (1) the juvenile court erred in imposing restitution fines and penalties without first determining his ability to pay the fines or considering its discretion to waive the penalties; and (2) he is entitled to eight additional days of custody credit for time served in connection with an earlier disposition. The People concede the latter point. Court conclude the Peoples concession is unwarranted and affirm the disposition order.

The City of San Diego (hereafter San Diego or the City) appeals from an adverse summary judgment ruling in a declaratory relief action brought by former San Diego Mayor Richard Murphy and former City Councilmembers Ralph Inzunza and Michael Zucchet. The City challenges the trial court's ruling (1) that the City is obligated, pursuant to Government Code section 995,[1]to provide Murphy, Inzunza and Zucchet with a defense to a lawsuit that the city attorney filed against them; and (2) that the City must pay Murphy, Inzunza and Zucchet the attorney fees and costs that they incurred in litigating this action. The underlying lawsuit filed by the City against Murphy, Inzunza and Zucchet challenged the validity of ordinances that impact the pension benefits that Murphy, Inzunza, Zucchet and other elected officers of the City will be entitled to collect upon retirement.
Court conclude that the trial court did not properly apply the standards set forth in section 800, because it did not limit the award of attorney fees to reasonable fees computed at $100 per hour and a total fee amount of no more than $7,500. Therefore, Court vacate the portion of the judgment concerning the award of attorney fees incurred in this action, and Court remand for the trial court to apply the standards set forth in section 800 in making the fee award.

A jury convicted appellant Douglas Newman of unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 1), evading an officer (Veh. Code, 2800.2, subd. (a); count 2), and grand theft of an automobile (Pen. Code, 487, subd. (d)(1); count 3). The trial court sentenced appellant to three years and eight months in state prison: the upper term of three years on count 1 and a consecutive mid-term of eight months on count 2. The three-year sentence on count 3 was stayed pending completion of the sentence for count 1. On appeal, appellant argues that his sentence violates his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process because it is based on aggravating circumstances not admitted or found true by a jury, and also that the sentence was based on an improper dual use of facts. Court. affirm.

A modification decision.

Bruce James Macias appeals the judgment following his conviction for first degree residential burglary. (Pen. Code, 459.) He claims the trial court erred in denying his motions for judgment of acquittal and for self-representation, and that the prosecutor improperly shifted the burden of proof during argument. Court affirm.

Cross-complainants Po-Tsung Tseng, Chun-Lang Tseng, Chun-Hsiung Tseng and Chun-Yang Tseng ("appellants") appeal the award of attorney fees to cross-defendant W&J Fox Realty ("Fox") following the entry of judgment in the latter's favor. Appellants maintain that the listing agreement entered into between the parties (the "Listing Agreement") is void because the fictitious business name "Fox Industrial Realty" did not appear on Fox's Department of Real Estate ("DRE") broker's license at the time Fox entered into the Listing Agreement. Court find no merit to the argument, and so affirm the award of attorney fees.

Robert Anderson appeals from an order of the superior court dated January 8, 2007, denying his motion and order for subpoena duces tecum for medical and grievance records from the Los Angeles County jail between the dates of July 1, 2006 and September 30, 2006. Previously, on August 3, 2006, appellant pled guilty to second degree burglary of a vehicle (Pen. Code, 459) and admitted he suffered a prior conviction of a serious or violent felony or juvenile adjudication within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a) through (d) and 667, subds. (b) through (i)) and served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Pursuant to the negotiated plea, he was sentenced to prison for seven years, and the charge of petty theft with prior convictions (Pen. Code, 666) and allegations of numerous prior prison terms within the meaning of Penal Code section 667.5 were dismissed.
Court have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

The City of Los Angeles (City) seeks a writ of review after the Workers Compensation Appeals Board (Board) denied its petition for reconsideration, thereby affirming the Workers Compensation Administrative Law Judges (WCJ) decision finding Respondent, Lucina DeLeon, entitled to death benefits because her husbands death arose out of and in the course of employment. The issue presented is whether decedent Jose B. DeLeons death occurred while he was engaged in an activity required by his employment. Court hold it did not. Court reverse the Boards decision and annul the Boards order. Court also deny Citys request for a stay of enforcement of the Boards order that affirmed the WCJs decision awarding death benefits as it is now moot.

Marcos Cavalier was convicted of three counts of burglary. He admitted a first prison prior conviction under Penal Code section 667.5, subdivision (b). Cavalier was sentenced to five years, four months. He appeals, arguing his verdict was not supported by substantial evidence, that the trial court failed to instruct on the lesser included offense of trespass, and that the trial court erred in instructing the jury, in imposing an aggravated sentence, and in ordering restitution. Court affirm the judgment.

Frequently in child custody disputes the parents' behavior leaves the trial court with no good choices but instead the unenviable task of selecting the least bad of various alternatives. This is such a case. Here the parents do not appear to be able to agree upon any matter related to the upbringing of their now seven-year-old child. Indeed because of hostility between the parents from the time the child was an infant, transfer of physical custody has consistently occurred at a sheriff's substation.
This appeal arises from the fact that in the summer of 2006 the child's mother, without consulting the child's father, attempted to enroll the child in a new school. When the child's father was informed about the change, he objected on the grounds that he had not been consulted about the proposed change and in fact believed that his son was doing well at the school he was attending.
Order affirmed.

H.M. (H.) appeals an order of the juvenile court placing her minor son, Angel M., in Illinois with his biological father, Kenton C., under Welfare and Institutions Code section 361.2, subdivision (a)[1]and terminating the court's jurisdiction. H. contends the court erred by finding it would not be detrimental to Angel to place him with Kenton and by terminating its jurisdiction. She further contends the juvenile court custody orders were improper and incomplete. Court affirm the orders.