CA Unpub Decisions

The former foster mother of minor, petitions for extraordinary relief after a hearing in which the juvenile court did not designate her as minor's prospective adoptive parent under Welfare and Institutions Code section 366.26, subdivision (n) and authorized the San Diego County Health and Human Services Agency (the Agency) to remove him from her care. Appellant contends the court erred by finding she did not qualify as minor's prospective adoptive parent and authorizing his removal; the Agency should have been prohibited from opposing her adoption of minor, the court should have considered her his de facto parent; minor's best interests would be promoted by maintaining his relationship with her and would preserve his relationship with his siblings; and when he was removed from her care he should have been placed with a relative. Court held appellant was not given sufficient notice to allow her to respond adequately to the Agency's concerns about her care of the children in her home. Court granted the petition and directed the juvenile court to hold a new hearing.

Each side appeals from a judgment for damages after a jury trial. Defendants’ appeal challenges the trial court’s resolution of ambiguity in the verdicts and the award of attorney fees. Plaintiffs’ cross-appeal contends the court erred in denying plaintiffs’ motion for new trial based on inadequacy of the award of damages or, alternatively, the judgment should be amended to a greater amount. Court reversed the damages portion of the judgment due to ambiguity of the verdicts and remanded for a new trial on damages. Additionally, court determined that the trial court did not abuse its discretion in awarding attorney fees; on remand, the court will be empowered to again award attorney fees.

In a nonjury trial the court found appellant guilty of shooting at an inhabited dwelling, unlawful possession of a firearm and street terrorism. The court denied appellant’s motion for a new trial, and sentenced him to a total determinate term of 27 years plus an indeterminate term of 15 years to life.
On this appeal Jones contends: (1) he was denied effective assistance of counsel because his trial counsel “failed to investigate and present crucial exculpatory evidence in a timely way”; (2) the court erred in imposing the 7 years on the section 246 count 3 conviction because the section 186.22, subdivision (b)(4)(B) term of 15 years to life he also received on that count is an alternative sentencing provision and not an enhancement; (3) the court erred in imposing the 20-year section 12022.53, subdivision (c) enhancement because this enhancement was inapplicable to appellant’s section 246 conviction; and (4) if imposition of the 20-year section 12022.53 enhancement was not error, then appellant’s 10-year section 12022.5, subdivision (a) enhancement (which was imposed but stayed) for personal use of a firearm must be stricken.
The seven-year sentence imposed on the section 246 conviction was ordered stricken, along with the 10-year section 12022.5, subdivision (a) enhancement and the 15 years to life. On remand, the court shall impose the 15 years to life called for by section 186.22, subdivision (b)(4) as a penalty for the section 246 count 3 conviction itself. The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.

Appellant stands convicted, following a jury trial, of second degree murder involving the personal use and intentional discharge of a firearm causing death. Sentenced to an aggregate unstayed term of 40 years to life in prison, he appeals, raising claims of evidentiary and instructional error. Court affirmed.

Appellant was a senior accountant for the County of Fresno. Appellant contended that the work he was actually doing fit the description of a higher paying position, that of “principal accountant,” and sought to have himself reclassified as a principal accountant. After the procedural path he followed in this endeavor proved fruitless, he filed a petition for writ of mandate seeking an order directing the Fresno County Board of Supervisors (“the Board”) to reclassify him as a principal accountant. The superior court denied the petition. Appellant appeals from the order denying the petition. The primary issue raised by this appeal is this - is the power to create a new principal accountant position in Fresno County held by the Board of Supervisors only, or does the County’s Director of Personnel Services (“the Director”) also have this power? Appellant contends that the board has delegated this power to the Director by means of certain provisions of the “Fresno County Personnel Rules” adopted by the Board, and that a decision of the County’s Civil Service Commission required the Director to create a new principal account position to be held by appellant. Respondents contend that only the Board has the power to create a new principal accountant position. Court agreed with respondents and therefore affirmed the superior court’s order denying appellant’s petition for writ of mandate.

The California Department of Motor Vehicles (DMV) in an administrative hearing revoked appellant’s privilege to operate a motor vehicle for a period of two years, pursuant to Vehicle Code section 13353, subdivision (a)(2). The trial court reduced the revocation to a one-year suspension under subdivision (a)(1). DMV appeals from that order. Appellant cross-appeals, challenging the initial vehicle stop that led to the DMV administrative action. Court reversed the trial court’s order and remanded the matter with directions to enter an order denying the petition for writ of mandate and reinstating the two-year revocation.

Appellant appeals from orders of the juvenile court rejecting her petition pursuant to Welfare and Institutions Code, section 388 to modify earlier orders of the court denying her reunification services and terminating her parental rights pursuant to section 366.26. After consideration of appellant’s argument, court affirmed the juvenile court’s judgment.

The child, who is now 17 years old, was detained in 2002 and has never returned home. Child is under a permanent plan of legal guardianship. Father argues that the juvenile court's findings and orders at a review hearing should be set aside because the court did not conduct a full hearing into his inquiry about obtaining a new attorney and because adequate evidence did not support the court's findings of sufficient services. Neither of these arguments has merit, and court affirm the court's orders.

Defendant entered pleas of nolo contendere to charges of failing to inform a law enforcement agency of his new address and being under the influence of a controlled substance, methamphetamine. Defendant also admitted one prior strike conviction and one prior prison term. The pleas and admissions were entered on the condition that he receive a sentence of no more than 32 months in the state prison. The trial court granted defendant’s Romero motion and struck the prior strike conviction. The court also struck the prior prison term enhancement. Defendant was sentenced to a total term of two years in state prison and given credits of 648 days.
Court reviewed the entire record and concluded that there were no arguable issue on appeal. The judgment is affirmed.

Defendant appeals his conviction by jury verdict of first degree murder, possession of a firearm by a felon, and evading a police officer. The jury also found true the allegation that he personally used and discharged a firearm during the murder. Defendant contends he received ineffective assistance of counsel because his attorney did not request CALJIC No. 3.20, which instructs the jury to view the testimony of an in-custody informant with caution, or CALJIC No. 2.60, which instructs the jury on the defendant’s right not to testify. The judgment is affirmed.

This is an appeal from an order of the Contra Costa County Superior Court denying appellant’s motion to strike (SLAPP motion) filed under Code of Civil Procedure section 425.16 (section 425.16) and triggered by respondent’s libel action against him. The superior court ruled that, although respondent was clearly a public figure and the issue involved one of public interest, respondent “has produced sufficient evidence” to show that he may have a legally cognizable claim. Court agreed with the trial court and affirmed its order.

Defendant appeals his conviction for multiple counts of lewd conduct against two minors. Defendant contends that instructing the jury with the 2002 version of CALJIC No. 2.50.01 permitted the jury to convict him of the charged offenses based on no more than a finding by a preponderance of the evidence that he committed other sex offenses, and that extending the statute of limitations under Penal Code section 803 subdivision (f) violated the ex post facto clause of the federal Constitution. Court found these contentions meritless and affirmed the judgment.

Defendant was convicted of exhibiting pornographic matter to a minor for sexual purposes. Defendant contends that the trial court erred in dismissing a deliberating juror, admitting the hearsay testimony of the victim’s statements to the grandmother and the police investigator, failing to deliver a requested jury instruction, and imposing an improper condition of probation. Court affirmed.

Defendant appeals a judgment entered upon a jury verdict finding him guilty of making a criminal threat on, a felony; making an annoying phone call on the same date, a misdemeanor; and contempt of court for violating a court order, a misdemeanor. Defendant contends the evidence does not support the criminal threat conviction; the trial court improperly admitted evidence of his drug use; and the trial court had a duty to instruct the jury on the defense of good faith in connection with the annoying phone call charge. Court affirmed in part and reversed in part.