CA Unpub Decisions

This appeal is brought by the Board of Supervisors of San Bernardino County and named Supervisors (Board) and real party in interest Dawn Rowe (Rowe) from a judgment on a petition for a writ of mandate entered on November 8, 2019. The superior court found that the process by which the Board appointed Rowe to fill a vacancy in the office of Supervisor for the Third District of San Bernardino County violated the Ralph M. Brown Act (the Brown Act). The superior court directed the Board to rescind the appointment of Rowe as Third District Supervisor; prohibited the Board from allowing Rowe to participate in an official capacity in any meetings or Board actions, and from registering or otherwise giving effect to any further votes cast by Rowe; prohibited the Board from making any appointment to the position of Third District Supervisor of the San Bernardino Board of Supervisors;

A jury convicted defendant Samuel Tuiono of attempted murder (Pen. Code, §§ 664, 187, subd. (a), count 1) and robbery (Pen. Code, § 211, count 2), and found true the firearm use enhancement attached to both offenses. (§§ 12022.53(d), 1192.7, subd. (c)(8).) The trial court sentenced him to a total term of 32 years to life in state prison, including 25 years to life for the firearm use enhancement.
Defendant appealed, arguing remand was necessary (1) to permit the court to exercise its authority—under section 12022.53(h)—to strike the 25-year enhancement under section 12022.53(d), and impose a lesser uncharged enhancement under either section 12022.53(b) or section 12022.53(c), and (2) to give defendant the opportunity to request a hearing on his ability to pay the various fines and fees imposed. Defendant further argued there was a sentencing error in the abstract of judgment.
On March 25, 2020, we filed a nonpublished opinion rejecting his arguments and affirming the judgment.

Appointed counsel for defendant Randy Lynn Payne filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.

K.O. (mother), mother of the minor Z.O., appeals from the juvenile court’s order during a contested dependent review hearing (Welf. & Inst. Code, § 366.3) reducing the frequency of her visitation with the minor. She contends the juvenile court abused its discretion. We shall affirm the order.

Defendant Dane Lee Tonies appeals from his conviction for child endangerment (Pen. Code, § 273a, subd. (a); count III) and hit-and-run driving causing injury (Veh. Code, § 20001, subd. (a); count IV). He contends the trial court prejudicially erred in responding to two separate questions asked by the jury during deliberations. He also claims the trial court violated his state and federal constitutional rights by imposing various fines and fees not orally pronounced at sentencing; alternatively, he contends the trial court violated his constitutional rights by imposing those fines and fees without considering his ability to pay. We agree the sentencing minute order and abstract of judgment improperly include fines and fees not imposed by the court at sentencing, and therefore we will remand for a limited resentencing to allow the trial court to determine whether to impose these fines and fees and, if so, their amounts. We otherwise affirm the judgment.

Defendant Pete Toplean appeals from the trial court’s denial of his motion to set aside a default judgment. He raises various claims, none of which has merit. Consequently, we affirm the judgment.

A jury found Brandon Robinson guilty of various offenses arising out of his sexual assault of three women over the course of about three months in 2017. During trial, his counsel declared a doubt as to Robinson’s competence to stand trial. The trial court appointed a psychologist to examine Robinson under Penal Code section 1368, even though that psychologist had been previously retained by the defense. The trial court then found that there was insufficient evidence to hold a competence hearing under section 1368. Robinson’s primary contention on appeal thus concerns whether there was substantial evidence to raise a doubt about his competence to stand trial and whether the psychologist’s appointment violated, among others, his right to counsel and attorney-client privilege. He also raises instructional issues, contends his sentence is cruel and/or unusual punishment, and argues he is entitled to a Franklin hearing.

A jury found Manuel Busane guilty of two counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)) and two counts of nonforcible lewd acts on a child (id., subd. (a)). The jury also found true allegations that Busane committed his crimes against multiple victims. (§ 667.61, subds. (b), (c)(4) & (8), (e)(4).) In a bifurcated proceeding, the trial court found true allegations that Busane suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)), and that he served five prior prison terms (§ 667.5, subd. (b)).

Charles Steven Brown appeals from a postjudgment order denying his petition for resentencing on his 1978 murder conviction under Penal Code section 1170.95. Appellant contends, and the People concede, that the trial court erred in summarily denying his petition instead of issuing an order to show cause and holding an evidentiary hearing. The People concede the issue. We agree and accordingly reverse.

In 1982, a jury convicted Albert Bobo of first degree murder under the felony murder doctrine. Decades later, Bobo petitioned for resentencing under Penal Code section 1170.95, arguing that he was not a major participant in the crime who acted with reckless indifference to human life. (See generally People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).) The trial court disagreed and denied the petition after an evidentiary hearing. We now conclude that there was insufficient evidence to support the reckless indifference to human life finding.

Victor and Yvonne Lin and their adult children Calvin and Gail moved to strike a cross-complaint filed by Ray B. Bowen, Jr., as a strategic lawsuit against public participation (SLAPP). The trial court granted Gail’s motion to strike the causes of action against her, but denied the other motions. In their appeal, Victor, Yvonne, and Calvin contend the court should have stricken the causes against them because they arose from acts in furtherance of the right to petition and because Bowen failed to show a probability of prevailing on the merits of those causes. In his cross-appeal, Bowen contends the court should not have stricken his causes against Gail because they did not arise from acts protected by the anti-SLAPP statute and/or because he showed a probability of prevailing. Bowen also contends the court erred when it declined to rule on his evidentiary objections. We affirm the portion of the order granting Gail’s motion, vacate the portion denying Victor, Yvonne, and Calvin’s

A jury convicted Tracey Bernard Hale of robbery. He appeals, arguing the trial court should have instructed on simple theft. We affirm. Statutory citations are to the Penal Code.
On May 22, 2019, Hale and a companion approached Mynor Espinoza in a liquor store. Hale asked Espinoza his name and looked at the gold chain around his neck. Then Hale and his companion went to wait at the store’s entrance.
Fearing robbery, Espinoza stayed inside. But Hale approached Espinoza from behind, put his arm around his neck, and dragged Espinoza to a back corner. There, Hale turned Espinoza toward the wall, demanded money, and took Espinoza’s wallet from his pants pocket. He took $180 and a debit card from the wallet, threw the wallet and other contents on the ground, and told Espinoza to use his card to get money from the ATM. Espinoza refused, and Hale threw the card at him. Hale pushed Espinoza’s head down, told him to look at the ground, and unclasped the gold chain from his neck.

In 1998, Leonel Medina pleaded guilty to two felony counts, and the trial court sentenced him to two years in prison. More than 20 years later, Medina filed a motion to vacate the pleas and convictions, arguing the trial court failed to make a sufficient inquiry into the factual basis for the pleas and referred to the wrong statute while taking one of the pleas. The superior court construed the motion as a petition for writ of error coram nobis, which it denied after finding Medina failed to show due diligence. On appeal, Medina argues the court abused its discretion in denying his motion. We affirm the order and remand the case with directions to correct an error in the abstract of judgment.

A court convicted Stanley Fitzgerald Peterson of assaulting his disabled son and sentenced him to 25 years to life as a third strike offender. Peterson subsequently filed a petition for recall of sentence under Penal Code section 1170.91. The court denied the petition after finding Peterson is ineligible for relief because he was sentenced to an indeterminate term. We affirm.