CA Unpub Decisions

Appellant Robert Salamone is the owner of a 1/2 interest in a tract of undeveloped land located in respondent City of Walnut (City). He filed an action in pro. per. against City because Citys general plan calls for a road to go through his parcel, which means that he can develop only five and not seven lots. Citys demurrer was sustained without leave to amend. Salamone appeals from the judgment of dismissal; Court affirm.

Bradley Gorton appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. He contends the evidence was insufficient to prove two of the requisite criteria for an MDO commitment because his underlying conviction of felony vandalism did not involve force or violence and did not otherwise qualify as an MDO offense; and the finding that appellant represented a substantial danger of physical harm to others was based on improper evidence. Court reject both contentions and affirm.

On July 7, 1999, before a preliminary hearing and as part of a plea bargain that he would not receive more than a 6-year low term sentence, Ismael Martinez pleaded guilty to continuous sexual abuse of his daughter over a three-year period, the only crime charged against him.[1] (Pen. Code, 288.5, subd. (a); all further section references are to the Pen. Code.) On August 19, 1999, pursuant to a favorable probation report and over the prosecutors objection, the court suspended imposition of sentence and placed Martinez on probation for five years on condition, among others, that he serve one year in jail; register as a sex offender; report to his probation officer upon his release from custody; after any departure from the country, provide documentation to his probation officer proving that he had re-entered the country legally; pay several fines; and not reside in the same household as his minor children.
Court have examined the entire record and are satisfied that Martinez attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Minor and appellant Alyssa M. appeals from the juvenile courts order terminating jurisdiction over her. She contends that the juvenile court abused its discretion by terminating jurisdiction without any showing that the Los Angeles County Department of Children and Family Services (Department) had complied with Welfare and Institutions Code section 391, by failing to require the Department to comply with the notice requirements of the Indian Child Welfare Act (ICWA) and by failing to appoint separate counsel for her and her brother, Joshua M. Court reverse. Court conclude that the juvenile court abused its discretion by terminating jurisdiction over Alyssa without prior notice to her, without her presence in the courtroom and without any showing by the Department that it had provided her with any of the services set forth in section 391, subdivision (b). Court further conclude that the matter must be remanded for the independent reason that the Department did not demonstrate it provided proper notice under the ICWA. Court do not, however, find that separate counsel was required for Alyssa and her brother.

Scott Gordon Reynolds, defendant in a criminal action, seeks a writ of mandate directing the court to invalidate the determination by Judge Jessie I. Rodriguez that a peremptory challenge (Code Civ. Proc., 170.6) to Judge Charles D. Sheldon was untimely after Judge Sheldon had determined the challenge was timely and transferred the matter for assignment to a different judge. Court conclude the petition is meritorious. It is therefore granted.

A jury convicted Julio Angel Gonzalez of possessing marijuana for sale. (Health & Saf. Code, 11359.) In a bifurcated proceeding, Gonzalez admitted to one prior serious felony conviction or "strike" within the meaning of the Three Strikes law (Pen. Code,[1] 667, subds. (b)-(i) 1170.12) and two prison priors ( 667.5, subd. (b), & 668). The court granted Gonzalez's motion to strike his prior serious felony conviction, and sentenced Gonzalez to prison for the middle term of two years for the possession of marijuana for sale plus two one year sentence enhancements for the prison priors.
Gonzalez appeals, contending the court abused its discretion in admitting into evidence an exhibit for which the prosecution failed to establish an unbroken chain of custody, and such error prejudiced Gonzalez and requires reversal of his conviction. Court disagree and affirm the judgment.

Real party and appellant, the Department of Corrections and Rehabilitation (hereinafter Department) dismissed its employee, petitioner and respondent Luis A. Valenzuela, from his position as a corrections officer for failing a drug test. Valenzuela appealed to the State Personnel Board (the Board), on the basis that the positive drug test had been caused by his ingestion of Mexican diet medication that he had legally obtained in Mexico, and he was unaware that taking the medication could result in a positive test for amphetamines. The Board upheld the penalty.
Valenzuela filed a petition for writ of administrative mandate, requesting the superior court to vacate the Board's order, asserting the dismissal decision was not supported by substantial evidence. (Code Civ. Proc., 1094.5.) The trial court granted the petition because it found the Board had abused its discretion in upholding the termination, because there was no substantial evidence to support a conclusion that Valenzuela was on legally adequate notice, for due process purposes, that his foreign prescription could result in his being tested positive for amphetamines. The court also found no substantial evidence that would have prevented assertion of a defense that the medication might have some legitimate medical use. (49 C.F.R. 40.137 (2007) [pertaining to duties of an appointed medical review officer to verify drug test results].) Valenzuela was ordered reinstated with backpay.
The Department contends we should reverse the trial court's decision because (1) the Board did not abuse its discretion by upholding the termination, in light of evidence that in the year 2000 and following, the Department had distributed some information and a memo warning employees about potential positive drug tests from unspecified foreign diet pills, and Valenzuela had heard of the memo; and (2) the Board correctly found that Valenzuela could not properly avail himself of the defense that this medication had some legitimate medical uses.
The Department's contentions of error are not supported by the record. We agree with the trial court that the Board abused its discretion in upholding the termination, under those circumstances, due to a lack of sufficient evidence supporting a finding of adequacy of the form and content of the notice given about the prohibited conduct. Court affirm the judgment granting the relief requested in the petition.

Kelly Elton Buzby entered negotiated guilty pleas to four counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code, 288, subd. (a).)[1] He admitted substantial sexual conduct in three of the crimes. ( 1203.066, subd. (a).) The court sentenced him to a stipulated 14 years in prison: the eight-year upper term on one count with a consecutive full six year middle term on a second count. It imposed concurrent terms on the two remaining counts and ordered Buzby to pay victim restitution of $1,366 to the San Diego Police Department under section 1202.4, subdivision (f) and a parole revocation restitution fine of $2,800. Buzby contends the trial court erred by ordering him to pay $1,366 victim restitution to the San Diego Police Department. The order that Buzby pay the San Diego Police Department $275 victim restitution for his examination is stricken and the trial court shall so advise the Department of Corrections. The judgment is otherwise affirmed.

The juvenile court declared Alecx S. a ward (Welf. & Inst. Code, 602) after finding that he committed two counts of robbery. (Pen. Code, 211). The court placed him on probation. Court affirmed.

Juana P. appeals a judgment of the juvenile court terminating her parental rights to her minor daughters Paulina P. and E.P. (together the minors) under Welfare and Institutions Code section 366.26. Juana contends the court erred by denying her section 388 petition for modification seeking either return of the minors to her care or additional reunification services. She also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. The minors' alleged father, Paulino A., joins in Juana's arguments and also contends: (1) the court violated his due process rights by not giving him adequate notice of the dependency proceedings and an opportunity to establish his paternity; and (2) the court abused its discretion by denying his request for a continuance of the selection and implementation hearing pending results of genetic testing. Raul C., another alleged father of Paulina, also appeals, asking this court to exercise its discretion to review the record for error under In re Sade C. (1996) 13 Cal.4th 952. Court affirm the judgment as to Juana and Paulino and dismiss the appeal as to Raul.

Luetenant House entered negotiated guilty pleas to forcible rape (Pen. Code, 261, subd. (a)(2)), lewd acts upon a minor under the age of 14 years ( 288, subd. (a)), rape with a foreign object ( 289, subd. (a)(1)), and incest ( 285). The court sentenced him to a stipulated 20 years in prison: the six year middle term for forcible rape with a consecutive full term eight year upper term for committing lewd acts with a minor under the age of 14 years and a consecutive full term six year middle term for rape with a foreign object. It imposed a concurrent term for incest. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
The judgment is affirmed.

After the trial court suspended criminal proceedings against Jeffrey A. Acie due to mental incompetence (Pen. Code, 1370 et. seq.), and reinstated the proceedings after finding him competent, Acie entered a negotiated guilty plea to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). On June 6, 2005, the court suspended imposition of sentence and placed Acie on probation for three years. On December 12, 2006, the court revoked and reinstated probation on the same terms and conditions after Acie admitted failing to appear at an order to show cause hearing. Acie appeals the order revoking and reinstating probation. Court affirmed.

Julie W. (Julie), the mother of Pedro O., Jr. (Pedro), appeals the juvenile dependency court's 18 month review hearing order that terminated her reunification services and found the appropriate permanent plan was another planned permanent living arrangement. Julie contends there is no substantial evidence to support the finding that reasonable services were provided to her in that the San Diego County Health and Human Services Agency (the Agency) did not facilitate any visits during Pedro's dependency. Court affirm.

E.R. appeals orders terminating her parental rights to her children, T.R. (T.), Sienna R., A.R. (A.), Alina R., and Alec R., and orders suspending visits and denying her request for a bonding study. She contends the orders must be reversed because the juvenile court's denial of her request for a bonding study deprived her of due process and constituted a manifest abuse of discretion. Court affirm the orders.