CA Unpub Decisions

After entering into a plea agreement, defendant Infante pleaded no contest to two felonies, resisting an executive officer by means of threats and violence (Pen. Code, S 69) and carrying a concealed dirk or dagger ( S 12020, subd. (a)(4)). He also admitted a prior prison term allegation (S 667.5, subd. (b)). The trial court sentenced defendant to the agreed-upon aggregate term of two years, four months.
On appeal, defendant contends that (1) the People's failure to file an information deprived the trial court of jurisdiction; and (2) the $400 restitution fine must be reduced to the statutory minimum of $200 because the restitution fine was not specified in the plea agreement. For reasons that court explain, court find no merit in defendant's contentions and therefore court affirm the judgment.
Court ordered defendant's related petition for writ of habeas corpus, which asserts a claim of ineffective assistance of counsel, to be considered with this appeal. Court have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b).)

In September 2003, plaintiff, sued defendant for damages for personal injuries arising out of an automobile accident that occurred in September 2002. When the parties appeared for trial in November 2005, defendant sought dismissal on the basis that no expert medical testimony was available from plaintiff and plaintiff had not shown he would be able to argue or prove causation of injury without it, since other causative factors had been raised as set forth in the affirmative defenses in the answer. The trial court dismissed the action.
Plaintiff appeals, claiming the trial court erroneously applied the law to find that expert testimony would be necessary to prove causation of damages, since this was a rear-end collision and plaintiff believed lay witness testimony would have been sufficient to prove some of his injuries, such as emotional distress. Defendant also claims the trial court erred or abused its discretion in granting the motion to dismiss and/or refusing to continue the trial to allow other expert testimony to be presented, such as through cross examination of the defense expert.
In response, defendant argues the trial court did not abuse its discretion in making those rulings because the court had the authority to hear a nonstatutory dismissal request and to dismiss the case under these circumstances. (Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall).) Court conclude the trial court did not abuse its discretion and there were reasonable justifications for each of the trial court's rulings. Accordingly, court affirm.

Plaintiffs are homeowners in Novato who oppose construction of a proposed subdivision by real party in interest Woodview Properties, LLC (Woodview). As explained in detail, plaintiffs opposed the project in extensive administrative proceedings before the City of Novato's Design Review Committee (DRC). Plaintiffs also opposed approval by the city council of a settlement of a lawsuit brought by Woodview that would in essence have declared that the administrative proceedings were ended. When these efforts failed, plaintiffs sought a writ of administrative mandamus to set aside the city council's action. The trial court denied relief, on the ground that plaintiffs had failed to exhaust their administrative remedies prior to commencing the action at law.
Plaintiffs appeal from that denial. They first contend that the trial court erred in concluding they had failed to exhaust their administrative remedies by not appealing from one or more decisions by the DRC. Plaintiffs also contend that, by reason of the city council vote, they did not receive adequate notice of the starting of the period within which they could commence an administrative appeal of the DRC decision to approve the project. Court conclude that neither of plaintiffs' contentions has merit, and court affirm.

Plaintiff appeals from the trial court's judgment after a bench trial in his dispute with defendant, the administrator of the estate of Francis Mathews, plaintiff's deceased father and former law partner. Court affirm the trial court's judgment in its entirety.

After defendant's motion to suppress the evidence was denied, the juvenile court sustained a supplemental petition alleging that he had possessed a firearm in violation of Penal Code section 12101, subdivision (a)(1). Defendant challenges the denial of the motion to suppress, as well as the sufficiency of the evidence in support of the court's ultimate finding. Court hold that the court erred in denying the motion to suppress.

Appellants (the Gentrys) appeal from a ruling on an application by Bethany Lutheran College, Inc., and Bethany Lutheran Theological Seminary (collectively the Bethany entities) under Probate Code section 21320 to determine whether a proposed probate court petition would constitute a contest to testamentary instruments under which they are beneficiaries. The proposed probate court petition sought to invalidate (1) certain pre death transfers made by Charlotte Becker several months before her death and (2) an amendment that Becker made to her trust shortly before her death. Upon the Bethany entities' application under section 21320, the probate court ruled that neither aspect of the proposed petition would constitute a contest in violation of the no contest clauses in the applicable instruments.
Court determine (1) that the relief sought by the Bethany entities regarding the pre death transfers does not constitute a contest, but (2) that the relief concerning Becker's amendment to her trust does constitute a contest. Accordingly, court reverse the probate court's ruling in part, and affirm it in part.

Claimant Cajon Valley Union School District (district) learned that the framing in one of its schools had been improperly constructed when a fire revealed the beams, previously hidden by the ceiling and roof. During construction of the school buildings, the general contractor responsible for the framing had been terminated by the district after the framing was installed but before work on the buildings was finished. The fire occurred nine years after the buildings were finished, near the outer limit of the 10 year statute of repose applicable to latent construction defects under Code of Civil Procedure section 337.15. The district eventually filed a lawsuit against defendant (Golden Eagle), which had bonded the work of the terminated contractor. The suit was filed more than 10 years after the framing had been completed and the contractor had been terminated, but less than 10 years after the replacement contractor completed the school buildings.
The district's lawsuit was treated as a claim by the Insurance Commissioner (commissioner), who had become the conservator for Golden Eagle's business. The commissioner rejected the claim as untimely, concluding that the 10 year statute of limitations for latent defects began to run no later than the date on which the original contractor was terminated. As an alternate ground for rejecting the claim, the commissioner also concluded that the deficiencies in the framing constituted a patent defect, and therefore were subject to a four year statute of limitations, because they should have been obvious to the district's building inspector during the construction process. Finding both conclusions to constitute an abuse of the commissioner's discretion, court reverse.

Parents appeal from a Welfare and Institutions Code section 366.26 order terminating their parental rights to their daughter, who was born in September 1997. The parents argue the juvenile court erred in failing to apply the section 366.26 subdivision (c)(1)(A) beneficial exception to adoption. Because the juvenile court's order terminating parental rights is supported by substantial evidence, the order is affirm.

The mother, and the presumed father, appeal from a parental rights termination order entered pursuant to Welfare and Institutions Code, section 366.26. The mother has also appealed from the denial of a section 388 modification petition. Appointed appellate counsel have notified us pursuant to In re Sade C. (1996) 13 Cal.4th 952, 978 - 983, they have been unable to find any arguable contentions. Court notified the parents they had 30 days to submit in writing any contentions or arguments they desired court to consider. The father has not responded. The mother has submitted contentions she wishes court to consider which court discuss shortly. Court dismiss both appeals.

A jury found defendant guilty of battery on a former cohabitant that resulted in a traumatic condition (Pen. Code, S 273.5, subd. (a)), and felony battery (S 243, subd. (d)). Defendant was sentenced to 18 years in state prison and ordered to pay a restitution fine.
Defendant appeals, contending (1) the trial court erred in excluding evidence of the victim's prior misdemeanor prostitution convictions; (2) the court erred in admitting an act of prior domestic violence against the same victim; and (3) defense counsel failed to provide effective representation during sentencing. Court affirm the judgment.

Appellant, the father of the minor, appeals from an order of the juvenile court denying appellant's motion, based on the alleged failure of Department of Health and Human Services (DHHS) to serve appellant with notice of the jurisdiction and disposition hearing, to set aside the court's jurisdictional findings and dispositional orders. (Welf. & Inst. Code, S 395; further undesignated section references are to the Welfare and Institutions Code.) Appellant contends that, as his due process right to notice of the combined jurisdiction and disposition hearing was violated by improper notice, the juvenile court committed prejudicial error in denying his motion. Finding no prejudicial error, court affirm.

Deidre G., mother of the minor, appeals from orders terminating her parental rights. (Welf. & Inst. Code, SS 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C., S 1901 et seq. (ICWA)) and the juvenile court erred in failing to find termination of parental rights would be detrimental to the minor. Agreeing only with appellant's first contention, court reverse for compliance with the ICWA.

Between January 1 and October 22, 2005, defendant conspired to distribute and sell methamphetamine. On October 5, 2005, in furtherance of the conspiracy, defendant received a phone call from a woman "for the purpose of delivering methamphetamine." Defendant told the woman "he would not be delivering that methamphetamine" because there was "too much Sheriff's activity in the area." Defendant had previously been convicted, in December 1989, of robbery.
Defendant pleaded no contest to conspiracy to sell or distribute methamphetamine (Pen. Code, S 182, subd. (a)(1); Health & Saf. Code, S 11379, subd. (a)) and admitted a prior juvenile conviction for robbery (Pen. Code, S 211) within the meaning of the three strikes law (id., SS 1170.12, 667, subds. (b)_(i)) in exchange for a stipulated sentence of six years in state prison.
Defendant was sentenced in accordance with his plea agreement to six years in prison, consisting of the middle term of three years, doubled for the strike, with credit for 354 days (236 actual days and 118 good conduct days). The trial court also imposed a $1,200 restitution fine (S 1202.4, subd. (b)) and stayed a $1,200 parole revocation fine ( S 1202.45) and ordered defendant to provide DNA samples (S 296). Defendant appealed.
Having undertaken an examination of the entire record, court find no arguable error that would result in a disposition more favorable to defendant. (People v. Wende (1979) 25 Cal.3d 436.)

A jury convicted defendant of selling and furnishing a controlled substance (Health and Saf. Code, 11352, subd. (a), count one); possession of cocaine base for sale (Health and Saf. Code, 11351.5 and 11350, subd. (a), counts two and three); and unlawful possession of drug paraphernalia. (Health and Saf. Code, 11364, count five.) As to count three, the jury found true the allegation that the offense was committed while he was released from custody on bail. (Pen. Code[1], 12022.1, subd. (b).) The jury acquitted him of a charge of unlawful failure to appear. ( 1320.5; count four.)
The court sentenced Hunter to 6 years in prison as follows: the mid term of 4 years for count one; 4 years, stayed pursuant to section 654, for count two; the upper term of 3 years, to run concurrently with count 1, for count three; and 2 years consecutive for the allegation in count three. The court imposed a restitution fine of $1,200.00 under section 1202.4, and imposed but stayed a parole revocation fine of $2,000.00 under section 1202.45. The court ordered Hunter committed to the California Rehabilitation Center under Welfare and Institutions Code section 3051. Defendant contends: (1) with respect to counts one and two, the court erred by admitting into evidence photocopies of the buy money that was not provided to the defense before trial; (2) with respect to count three, the criminalist's report was testimonial, and therefore its introduction into evidence violated his right to confrontation under the Sixth Amendment of the United States Constitution; (3) the trial court erred by instructing regarding flight in the language of CALJIC No. 2.52; (4) the trial court imposed a parole revocation fine in an unauthorized amount; and, (5) the upper term sentence on count three violated his constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments of the federal Constitution. Court affirm in part and reverse in part.