CA Unpub Decisions

This is an appeal following a trial on remand from this court on the issue of whether Donald W. Marken and Claudine H. Marken (Markens) received certain income from California sources that was taxable pursuant to Revenue and Taxation Code section 17951. On remand, the trial court also considered the Markens posttrial motion for litigation costs. Court granted the parties request to consolidate the Markens appeal from both the judgment on remand and the order denying their motion for recovery of litigation costs. The Markens contend that the trial court erred in concluding that income they received from incentive stock options and their pension plan was taxable. They also argue that the court erred in excluding their declarations and that it abused its discretion in denying their motion for litigation costs. Court affirm.

Damadri Reed was convicted, following a jury trial, of one count of possession of cocaine and one count of possession of cocaine base for sale. On appeal, he contends the trial court improperly admitted his statements showing his dominion and control over the room where the contraband was found because the statements were obtained in violation of his Miranda[1] rights. Court affirm the judgment.

Defendant appeals from a judgment convicting him of committing a lewd and lascivious act on a child under 14 years of age. In response to prosecution evidence of a prior incident of sexual misconduct, the court permitted defendant to bring out that he was not charged or convicted of a sex related offense with regard to that incident, but excluded evidence that he was discharged of such an offense. Court reject defendants contention that the court erred in excluding this evidence.

Kristina S. (Mother) appeals from the juvenile courts order terminating parental rights as to her twin children, daughter T.S. and son Lorenzo S. (the minors), and establishing adoption as their permanent plan. (Welf. & Inst. Code, 366.26.) She argues that she was denied due process at the section 366.26 hearing and that the trial court erred in finding that the parental bond exception to termination did not apply. Court affirm the order.

Following a jury trial, appellant Rogelio Bejar Rojas was convicted of one count of first degree residential burglary. At bifurcated proceedings, he admitted a previous conviction for burglary, which was alleged as a prior strike, a prior serious felony, and a prior prison term. He was sentenced to a total of 13 years in state prison, with 206 days of presentence credits. He appealed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief, and did not do so.
After reviewing the record, Court asked for supplemental briefing on this issue: Should a mistrial have been declared after Officer Medina testified that the defendant told him he had just been released from prison.
Having reviewed the supplemental briefing from both sides, Court concluded that no prejudicial error occurred. Court therefore affirm.

Following a jury trial, appellant Harry Brian Sult was convicted of possession of methamphetamine for sale. The trial court suspended imposition of sentence and placed him on four years of probation, with 180 days in county jail. This appeal followed.
Appellant contends that the trial court committed prejudicial error when it failed to instruct sua sponte that a conviction could not be based solely on his out-of-court statements. (CALCRIM No. 359.) The instruction sets forth the corpus delicti rule, which requires proof that a crime occurred, apart from the defendants extrajudicial statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.) Such an instruction must be given sua sponte, where the prosecution relies in part on such statements. (Id. atpp.1170, 1178, 1180.) Here, as in Alvarez, the absence of the instruction was harmless, based on the overwhelming evidence of the corpus delicti, through the methamphetamine and drug packaging materials found in appellants bedroom and the adjacent garage, and the expert testimony regarding possession of the drug for sale. (Id. at p. 1181; People v. Watson (1956) 46 Cal.2d 818, 836.). The judgment is affirmed.

Pursuant to a negotiated settlement, defendant Joan Elizabeth Kuntz pleaded no contest to arson (Pen. Code, 451, subd. (b)) in exchange for the dismissal of another count and a promise of a maximum sentence of the low term of three years in state prison. In accordance with the settlement agreement, the trial judge imposed a sentence of three years and ordered restitution fines of $400 pursuant to Penal Code sections 1202.4 and 1202.45. The judgment is affirmed.

Plaintiffs Alkop Agriservices, Inc., Robert Allen, and Kathleen Martinelli sued Peter Giampaoli and his Individual Retirement Account (IRA) (the Giampaoli defendants) for interference with prospective business advantage and infliction of emotional distress after Giampaoli acquired property that Alkop Agriservices had formerly owned. Plaintiffs appeal from a judgment in favor of the Giampaoli defendants. They contend the trial court erred in sustaining the demurrer to the emotional distress claims on statute of limitations grounds because these claims related back to the original complaint and thus were timely. They also contend the trial court erred in granting summary judgment on the interference with prospective business advantage claim for both procedural and substantive reasons. Plaintiffs contend the trial court granted summary judgment on a basis as to which the Giampaoli defendants did not give notice. Further, they contend the trial court erred in excluding, under Evidence Code section 1119, a settlement agreement because the agreement was reached outside of mediation. Court find the trial court ruled correctly on both the demurrer and the summary judgment motion and affirm the judgment.

Anthony M. (petitioner), the father of minors G.M. and J.G. (the minors), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.)[2] He also requests a stay of proceedings in the respondent court. Petitioner contends there was insufficient evidence that return of the minors to his care would create a substantial risk of detriment. Because defendant has an extensive history of alcohol abuse and did not adequately comply with the components of his case plan designed to address this issue, Court disagree. Accordingly, Court deny the petition and the request for stay.

A jury convicted Mark A. Winston of transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)), possession for sale of a controlled substance (id., 11378) and misdemeanor possession of a controlled substance (id., 11357, subd. (b)). After receiving the jury's verdict, the trial court made findings that Winston had four prison priors and three prior strike convictions. (Pen. Code, 667.5, subd. (b), 667, 1170.12.) As a third strike offender, Winston was sentenced to 28 years to life in prison.
Winston appeals both his convictions and his sentence on numerous grounds. He contends: (i) the trial court erroneously denied his motion to suppress evidence; (ii) the trial court erred by failing to conduct an in camera review of police personnel files pursuant to his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (iii) there was insufficient evidence to support the jury's verdict that he transported methamphetamine; (iv) the trial court erroneously instructed the jury in response to an inquiry regarding the lawfulness of the police search of his vehicle; (v) the trial court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 in declining to strike any of his prior strikes; (vi) his sentence is unconstitutional under both California and federal law because it is cruel and unusual; (vii) his sentence is unconstitutional as a violation of double jeopardy principles; and (viii) the trial court erroneously relied at sentencing on a prior strike alleged to have been the result of an unconstitutional conviction.
Court's review of Winston's contentions reveals that only the last contention is meritorious. Accordingly Court affirm the convictions, but remand for resentencing in light of the trial court's failure to hold an evidentiary hearing regarding one of Winston's prior strikes as required under People v. Sumstine (1984) 36 Cal.3d 909 (Sumstine).

Jean B., a maternal aunt of H.G., appeals the denial of her petition for de facto parent status. court affirm the order.

A modification decision.

Defendant was convicted of robbery (Pen. Code, 211) and kidnapping for robbery ( 209, subd. (b)). Following a third sentencing hearing, he was sentenced to a total determinate term of 11 years, consecutive to an indeterminate sentence of life with the possibility of parole. The judgment is affirmed.

Objector and appellant L.D. (mother) is the natural parent of J.H. and Gloria H., dependent children of the juvenile court. Mother failed to reunify with the children and her parental rights were terminated. Mother appeals, contending that the court should not have terminated her parental rights, based on the beneficial relationship exception stated in Welfare and Institutions Code[1]section 366.26, subdivision (c)(1)(A). She further argues that her attorney provided incompetent representation in failing to argue that the beneficial relationship exception applied. Court affirm.