CA Unpub Decisions

A jury convicted defendant of one count of second degree robbery (Pen. Code, SS 211, 212.5, subd. (e)) and found true the allegation he personally used a firearm in the commission of the crime (Pen. Code, S 12022.53, subd. (b)). The trial court sentenced Morales to a prison term of two years for the robbery conviction, enhanced by a term of 10 years for personal use of a firearm.
Defendant challenges his conviction on two grounds: (1) sufficient evidence does not support the firearm use enhancement; and (2) the trial court erred by failing to instruct the jury sua sponte on an enhancement for being armed (Pen. Code, S 12022, subd. a)(1)) as a lesser included enhancement of personal firearm use.
Court conclude the evidence supported the firearm use enhancement and under People v. Majors (1998) 18 Cal.4th 385, 411 (Majors), the trial court was not required to instruct the jury sua sponte on lesser included enhancements. The United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) did not overrule Majors or undermine its validity. Court therefore affirm the judgment.

Pursuant to California Rules of Court, rule 8.452, Brenda L. seeks review of the order scheduling a permanency planning hearing for her two daughters, Brianna G. (now age two), and Savannah G. (now age one). (Welf. and Inst. Code, S 366.26.) They were the youngest of Brenda's six children none of whom she has raised. Brianna was born with spina bifida. Both children were taken into protective custody at birth and declared dependent children due to Brenda's 22 year history of drug use (and attendant lengthy criminal record and frequent incarcerations), and refusal to properly treat and manage her own prenatal health problem with gestational diabetes. During the reunification period, when not incarcerated, Brenda maintained regular visitation and completed a drug treatment program and a parenting class. But, she repeatedly missed drug tests and lacked demonstrated parenting capabilities most significant of which was a lack of interest in or understanding of Brianna's medical needs. In this proceeding, Brenda challenges the court's findings: (1) that she failed to make substantial progress in overcoming the problems that led to the children's detention; (2) that she failed to substantially comply or make progress with her service plan; and (3) that reasonable reunification services were offered. Court conclude there is sufficient evidence to support the findings and deny her petition.

Dorinda Barnes has filed two notices of appeal in this ongoing dissolution proceeding. This court has ordered that the two appeals be considered together for purposes of briefing, argument, and decision. Her first appeal (H026664) arises from the trial court's denial of her motion to set aside earlier orders. Her second appeal (H027557) challenges the court's prospective termination of spousal support of Dorinda by David.
As court explain below, the thrust of the first appeal is to challenge an earlier court order and not the court's denial of the motion to vacate. Since Dorinda did not appeal from this earlier appealable order, court conclude that she is barred from attacking it in this appeal. Her only real attack on the denial of the motion to set aside lacks merit. Dorinda's second appeal primarily claims that the termination of spousal support is unsupported by the evidence. Court conclude that her evidentiary arguments are foreclosed by her failure to provide a reporter's transcript of the hearing preceding the termination order. Court also reject her argument that the trial court lacked jurisdiction to issue this order. Finally, court deny her latest request for judicial notice and to take new evidence on appeal. Accordingly, court affirm the court's orders.

In this case, Landwatch Monterey County (Landwatch) claims that the approval of a subdivision project with a mitigated negative declaration (MND) violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, S 21000 et seq.)
Landwatch renews its claim, arguing that approving the Project with an MND, instead of preparing and EIR, violates CEQA because the Project may have an adverse impact: It may contribute to a severe groundwater overdraft in North Monterey County. Landwatch also claims that the Project violates the Monterey County General Plan and the North County Area Plan.
Court affirm the judgment.

Plaintiff brought a negligence action against defendant Christopher Todd Baca relating to a June 2000 vehicle collision. The jury found both plaintiff and defendant negligent and the trial court entered judgment for plaintiff in the amount of $292.05. Plaintiff appeals from the judgment and contends that the court erred in denying her motion to exclude a videotaped deposition of defendant's expert and in denying her request to present a rebuttal expert. Court find no error and affirm the judgment.

Defendant challenges an order directing him to make restitution to an insurance company for damage he caused to a car during an attempted flight from police. On appeal he contends that such an award is barred under the holding of People v. Birkett (1999) 21 Cal.4th 226. Respondent concedes that the order was unauthorized. Accordingly, court strike the challenged order, and otherwise affirm the judgment.

On August 26, 2005, the Santa Cruz County District Attorney's Office filed a petition under Welfare and Institutions Code section 602 to declare David L., a minor, a ward of the court. The petition, as later amended, alleged five counts of felony vandalism and one count of possession of marijuana. (Pen. Code, S 594, subd. (a); Health and Saf. Code, S 11357, subd. (e).) After the minor was deemed eligible for deferred entry of judgment (S 790), he admitted all counts and was advised that he faced a maximum commitment of five years and eight months. The juvenile court then granted deferred judgment for two years.
On February 3, 2006, the district attorney filed a second petition. As amended, it alleged five counts of misdemeanor possession of marijuana. (Health and Saf. Code, S 11357, subd. (b).)
On February 7, 2006, the minor denied the allegations in the second petition, and the court held a restitution hearing concerning the acts of vandalism. On February 22, 2006, the minor admitted two counts of possession, the other three were dismissed, deferred entry of judgment was revoked, the minor was declared a ward of the court, and the restitution hearing was concluded. The minor and other minors were found jointly and severally liable for (1) $3,900.00 for damage to a retaining wall owned by Catherine and Jeffery Thermond; and (2) $2,567.47 for damage to a train trestle and two retaining walls belonging to the City of Capitola (City).
The minor appeals from the restitution order. He claims the court abused its discretion in including in the amount of restitution to the City the cost of repainting a retaining wall a second time.
Court agree and reverse the restitution order.

The essential issue presented is whether the trial court abused its discretion when it denied wife's motion to dismiss.
Court conclude substantial evidence supports the trial court's determination wife implicitly entered into an agreement with husband to waive the statutory five-year time limit within which a matter must be brought to trial. Accordingly, when wife brought a motion to dismiss the matter because trial began on a date beyond the five-year limitation period, the trial court properly exercised its discretion in denying the motion.
Therefore, the judgment is affirmed.

The juvenile court sustained charges of two counts of arson and one count of making a false police report against Jordan W., a minor. The minor was committed to the California Youth Authority.
On appeal, the minor contends the evidence is insufficient to support the juvenile court's finding that he committed the arson charged in count 1 of the petition. Disagreeing, Court affirm.

Defendants appeal from the trial court's judgment declaring the existence of an express easement across the edge of their property. Court affirm.

A modification decision.

In superior court case No. SCD197588, on April 7, 2006, Dean Hall entered negotiated guilty pleas to burglary (Pen. Code, S 459), grand theft using an access card (S 484g, subd. (a)), and unlawfully acquiring access card information (S 484e, subd. (d)). In case Nos. SCD197691 and SCD197919, on April 7, 2006, Hall entered negotiated guilty pleas to two counts of grand theft using an access card. The court sentenced Hall to prison for the two year middle term for grand theft in case No. SCD197919, with concurrent prison terms on the remaining convictions. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304.) The judgment is affirmed.

The mother of Carolina I., Armando M. and Alejandro M., appeals the judgment terminating her parents rights under Welfare and Institutions Code section 366.26. Mother contends (1) the juvenile court erred by not postponing the trial to obtain more current information, (2) there was insufficient evidence supporting the juvenile court's finding that the children were likely to be adopted within a reasonable time, and (3) the court erred by not applying the beneficial parent child relationship exception to adoption (S 366.26, subd. (c)(1)(A)).
The judgment is affirmed.

Appellant seeks writ review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26. The petition is denied.