CA Unpub Decisions

Plaintiff was assessed administrative penalties and costs at an administrative compliance hearing held pursuant to the Roseville Municipal Code (the Code) for the failure to obtain an encroachment permit for concrete strips and sod she installed within the City's 100-year flood drainage easement on her property. Sections 13.28.010 and 13.28.020 of the Code make it unlawful to perform "any type of construction or work, or the placing of any object or thing, whether permanent or temporary" within the drainage easement without having obtained a permit from the Public Works Director of the City.
The Placer County Superior Court denied Hayden's petition for a writ of mandate, and she appealed. On appeal she argues: (1) City presented insufficient evidence to support the imposition of penalties and costs, (2) City is estopped from asserting she violated the Municipal Code, (3) her application for a permit was timely, and (4) she was in substantial compliance with the order of the City's Board of Appeals directing her to apply for a permit. Court affirm the judgment of the trial court.

Plaintiff Sue Erwin appeals from a judgment in favor of defendants Stewart, Humpherys, Burchett & Molin and Richard J. Molin in this legal malpractice case. Erwin contends the trial court erred in granting defendants' motion for summary judgment because defendants failed to bear their burden to show the absence of a triable issue of material fact. She further argues that considering evidence that appears to negate her case violated due process because such evidence was not presented until shortly before the trial court ruled. While Erwin's case appears weak, even meritless, we must reverse because defendants failed to comply with the exacting requirements of Code of Civil Procedure section 437c.

Appellant appeals from the trial court's order denying his motion to vacate a December 2001 order that established paternity and required him to pay child support. Martinez became aware of the support order in March 2002, at the latest, but he did not file the instant action to set aside the order until March 2005. Based on time limits established in the Code of Civil Procedure and the Family Code, the trial court denied Martinez's motion. Court affirm the judgment (order).

The People appeal from a trial court order dismissing the case after the court granted defendant's suppression motion. (Pen. Code, S 1538.5.) Defendant Cynthia Salazar initially responds that the appeal should be dismissed because the People attempt to appeal from a dismissal granted upon the prosecutor's motion; court disagree, and conclude the court's dismissal of the action was made by the court on its own motion. Court also find that the trial court erroneously granted defendant's suppression motion, and reverse.

Mark Wendt appeals from denial of his petition for a writ of mandate to set aside the decision of the California Department of Motor Vehicles (the Department) suspending his driving privilege for one year. Appellant contends the Department failed to carry its burden of proof to establish by a preponderance of the evidence that he was driving with a blood alcohol concentration (BAC) of .08 percent or more because there were two equally valid chemical tests, one showing a BAC of .08 percent and one showing a BAC of .07 percent. Court find substantial evidence supports the trial court's decision and affirm.

K.X. appeals judgments of the juvenile court terminating her parental rights to her minor children Carla S., Joaquin S. and A.S. (collectively the minors) under Welfare and Institutions Code[1] section 366.26. K.X. 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. Court affirm the judgments.

Following a jury trial, defendantwas convicted of four counts of residential, home invasion robberies (Penal Code section 211) and one count of carjacking (section 215, subdivision (a)). It was further found true that the robberies were in concert with two or more other people (section 213, subdivision (a)(1)(A)), for the benefit of a street gang (section 186.22, subdivision (b)(1)) with the personal use of a firearm (section 12022.53, subdivision (b)). Defendant was sentenced to state prison for a term of 80 years to life. Defendant appeals.
The judgment is affirmed.

Defendant appeals his conviction of one count of manufacturing methamphetamine, in violation of Health and Safety Code section 11379.6, subdivision (a). He contends that the trial court erred in admitting evidence of two of defendant's prior convictions as improper character or disposition evidence. (See Evid. Code, S 1101, subd. (a).) He also contends that an enhancement for drug offenses taking place within a certain distance of a school, during school hours, was improper. The People concede that the "school proximity" enhancement was improper and, accordingly, court reverse that finding. In all other respects, however, the judgment is affirmed.

Edward R., aged 16, and his brother, Evan R., aged 14, (hereafter referred to individually by first name or collectively as the minors) were continued as wards of the juvenile court after each admitted the allegations of a subsequent petition filed pursuant to Welfare and Institutions Code section 602. The petitions alleged that each minor committed a lewd and lascivious act on a child under the age of 14 by inserting his penis into the vagina of a 12 year old girl, in violation of Penal Code section 288, subdivision (a) (hereafter section 288(a)). (All further statutory citations refer to the Penal Code unless another code is specified.)
Edward contends that the district attorney violated his right to due process by charging him with a violation of section 288(a) rather than with unlawful sexual intercourse in violation of section 261.5, thereby depriving him of the defense that he reasonably believed that the victim was 14. He also contends that the juvenile court violated his right to due process by failing to order the most appropriate disposition. Evan joins in these arguments, and also contends that the juvenile court erred by ordering him placed in a facility for sex offenders. In the alternative, Evan contends that court remand the matter to permit the court to state his maximum potential term of confinement.

Appellant (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating her parental rights to her daughter, Rebecca, and son, Anthony. Mother argues that: 1) the juvenile court abused its discretion in denying her section 388 petition; 2) the court erred in selecting adoption as Rebecca's permanent plan because the sibling relationship exception applied (S 366.26, subd. (c)(1)(E)); and 3) there was insufficient evidence to support the court's finding that Rebecca was likely to be adopted, since she had a serious medical condition. Court affirm the order.

A jury found defendant guilty of three counts of assault with a deadly weapon (Pen. Code, S 245, subd. (a)(1)) (counts 1, 2 and 3), one count of making a criminal threat (Pen. Code, S 422) (count 4), and one count of attempting to make a criminal threat (Pen. Code, SS 664/422) (count 5). The trial court suspended imposition of a three-year state prison sentence for the purpose of placing defendant on probation, a term of which required that defendant serve 365 days in county jail.
Defendant raises numerous claims of error in this appeal, the details of which we recount below in our discussion of those claims. Court conclude, for reasons we explain below, that defendant's claims are meritless. Therefore, court affirm.

Father appeals from the finding of the juvenile court that his daughters Christina K. (born in July 1992), Valerie K. (born in February 1994), and Melanie K. (born in November 1995) (collectively referred to as minors) came under the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a), (b), and (c). Father's appointed counsel filed a brief under the authority of In re Sade C. (1996) 13 Cal.4th 952, People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and facts, and asking this court to undertake an independent review of the entire record.
Court provided father with an opportunity to file a personal supplemental brief. Father filed a personal supplemental brief in which he contends the juvenile court erred in acquiring jurisdiction of minors solely upon the basis of uncorroborated hearsay evidence and in issuing various orders. Court find no error, and affirm.

Defendant appeals his convictions for felony annoying or molesting a girl under the age of 14, and for committing a lewd act against a boy under the age of 14. Defendant contends that the trial court erred in admitting evidence of an uncharged prior sex offense and in instructing the jury pursuant to CALJIC No. 2.50.01. Defendant also contends that his trial counsel provided ineffective assistance by failing to challenge the admission of some hearsay evidence. Court affirm.

On December 23, 2004, the Madera County District Attorney filed an information in superior court charging appellant as follows: count I--evading a peace officer while in a motor vehicle (Veh. Code, S 2800.2, subd. (a)); count II--possession of a weapon, i.e., a billy (Pen. Code, S 12020, subd. (a)(1)); count III--resisting arrest by force or violence (Pen. Code, S 69); and count IV--assault with a deadly weapon or by force likely to cause great bodily injury on a peace officer (Pen. Code, S 245, subd. (c)). The district attorney specially alleged two prior strike convictions (Pen. Code, S 667, subds. (b)-(i)), a prior serious felony conviction (Pen. Code, S 667, subd. (a)) (based upon count IV alleging a specified serious felony), and three prior prison terms (Pen. Code, S 667.5, subd. (b)). Appellant contends defense counsel's failure to object to the prosecutor's question regarding his subjective intent and the prosecutor's statement at argument deprived him of his constitutional rights to the effective assistance of counsel and to a fair trial. He further contends the claim may be raised on direct appeal because "there is no possible legitimate tactical reason for counsel's failure to have objected."
The trial court is directed to prepare and distribute as appropriate an amended abstract of judgment reflecting the specified modifications of judgment.