CA Unpub Decisions

Appellant filed briefs contending the court erred in failing to give a unanimity instruction (CALCRIM No. 3500) on the criminal threats count, and in accepting the jury’s verdict in appellant’s absence rather than granting a continuance. After we issued our decision affirming the judgment, we granted appellant’s petition for rehearing on the issue whether he is entitled to resentencing in light of Assembly Bill No. 124 (2021-2022 Reg. Sess.; hereinafter AB 124), which went into effect while this appeal was pending. The People agree that appellant is entitled to resentencing under the new legislation, and we shall order the matter remanded accordingly.

Marwan Sawaked appeals from the order granting summary judgment against him in favor of his former employer, Atara Biotherapeutics, Inc. (Atara). He contends: (1) the trial court improperly analyzed Atara’s undisputed material facts, (2) there was a triable issue of fact whether he was an “exempt” employee, (3) he was wrongfully deprived of bonuses, (4) he was entitled to an award of penalties, and (5) Atara breached its contract. We conclude that Atara did not establish that Sawaked was an exempt employee or was not entitled to penalties. We reverse summary judgment in part, and otherwise affirm.

Per a negotiated disposition, David Allen Hamilton, Jr., pleaded no contest in the Fresno Superior Court to felony assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); count 1) and felony evasion of a peace officer by reckless driving (Veh. Code, § 2800.2, subd. (a); count 2). The court suspended execution of its sentence and placed Hamilton on probation. Following a probation transfer to San Mateo County, after his probation period ended Hamilton petitioned the San Mateo Superior Court to reduce count 2 to a misdemeanor and to dismiss both counts. (Pen. Code, § 1203.4.) The court denied his petition without a hearing because: “Defendant’s convictions are recent and serious in nature.” Hamilton appeals as to count 1, arguing dismissal is mandatory; the People agree subject to proof, and so do we. However, we reverse as to both counts.

Defendant Seonjuan Woods appeals from a judgment of conviction entered after he pleaded no contest to violating a protective order pursuant to Penal Code section 166, subdivision (c)(4), and admitted to having a prior strike conviction under the “Three Strikes” law. (§§ 667, subds. (b) (i), 1170.12.) After the trial court denied Woods’ request to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), it sentenced him to 32 months in prison.
Woods contends the trial court abused its discretion in denying his Romero request because his background, character and future prospects showed he fell outside the spirit of the Three Strikes law. He also contends he must be allowed to withdraw his no contest plea because it was predicated on the trial court’s indication that it was willing to strike his prior strike conviction.
We reject Woods’ contentions and affirm the judgment.

A.B. (Mother) appeals from the juvenile court’s dispositional order vesting physical custody of her now seven-year-old daughter, M.H., outside her care and continuing M.H.’s placement with her maternal grandmother. (Welf. & Inst. Code, § 361, subd. (c)(1), (c)(4).) Mother does not challenge the juvenile court’s jurisdictional order sustaining allegations of recent sexual abuse by Mother’s boyfriend Javier Belmontes and “another unknown adult,” along with general neglect (failure to protect). (§ 300, subds. (b), (g).) The juvenile court entered those jurisdictional findings despite Mother’s denial of “any knowledge of sexual abuse” and her denial of “any problem with substance abuse” that could pose a risk of harm to M.H. Rather, Mother contests the sufficiency of the evidence to support removing M.H. from her custody and, in a related argument, contends the court should have ordered family maintenance services rather than reunification services.

Alfredo Miguel Aquino appeals from a judgment after a jury convicted him of second degree murder (count 1), the gang offense (count 2), possession of a firearm by a felon (count 3), and possession of a firearm in a school zone (count 4), and found true gun and street gang enhancements. Aquino argues insufficient evidence supports counts 3 and 4, and the trial court erred by refusing to strike his strike conviction and the minimum parole eligibility enhancement.
While this appeal was pending, Aquino moved for permission to file a supplemental opening brief on the question of whether legislation effective on January 1, 2022, including Assembly Bill No. 333’s (AB 333) amendments to the gang statute, applies retroactively and, if so, their effect on this case. We granted the motion, accepted for filing his supplemental opening brief, and invited the Attorney General to file a supplemental respondent’s brief, which he did.
We agree insufficient evidence supports counts 3 and 4.

Ricardo Cruz appeals from a judgment after a jury convicted him of second degree murder (count 1), the gang offense (count 2), possession of a firearm by a felon (count 3), and possession of a firearm in a school zone (count 4), and found true gang and firearm enhancements. Cruz argues insufficient evidence supports his convictions, the trial court erred by admitting evidence, his equal protections rights were violated, the court erred in sentencing him, and the abstracts of judgment much be corrected.
While this appeal was pending, we invited the parties to file supplemental briefs on whether legislation effective on January 1, 2022, applies retroactively and, if so, their effect on this case. Because we conclude, as does the Attorney General, the recent legislation applies retroactively, insufficient evidence supports count 2 and the gang enhancements. Our conclusion requires we strike the 15-year minimum parole eligibility period.

Eldrick Richmond was convicted of murder. In a prior appeal, we found error related to the first degree premeditation finding and reversed the judgment with directions to accept a reduction to second degree murder or retry the premeditation allegation. (People v. Richmond (Feb. 19, 2021, F078340) [nonpub. opn.].) The People chose the former.
Upon remand, the court resentenced Richmond to serve 35 years to life in prison based in part on enhancements for a prior strike and prior serious felony conviction. The prior convictions were the same prior conviction.
At issue in this appeal is whether the court properly imposed the prior serious felony enhancement. We hold the sentence was proper, and affirm.

J.J. is the son of defendant and appellant, Je.J. (Mother). The family came to the attention of the Riverside County Department of Public Social Services (Department) after it received a report that J.J. had sexually assaulted one of his younger cousins. J.J. later reported recurring feelings of depression and the desire to inflict self-harm, causing the Department to suspect J.J. may himself have been the victim of sexual assault. Initially, the Department attempted to work cooperatively with Mother to ensure J.J. received mental health treatment. However, after Mother stopped cooperating, the Department took J.J. into protective custody and filed a dependency petition pursuant to Welfare and Institutions Code section 300 et seq. on his behalf, alleging jurisdiction under section 300, subdivision (b)(1), based upon Mother’s failure to adequately supervise J.J. and failure to provide adequate medical care for him.

In this employment retaliation case, the trial court granted summary judgment to the defendants. Plaintiff and appellant Victor Joseph contends that he produced sufficient evidence to survive summary judgment as to three of the defendants on his claim under the California Whistleblower Protection Act (WPA) (Gov. Code , § 8547 et seq.) by demonstrating that the reasons for his termination were pretextual. In a previous unpublished opinion, we disagreed that he produced such evidence and therefore affirmed the judgment. Our Supreme Court then granted Joseph’s petition for review and transferred the matter to us with directions to vacate the opinion and reconsider the cause in light of Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal. 5th 703 (Lawson). We vacated our opinion and requested supplemental briefing, which the parties submitted.
Having reconsidered the matter in light of Lawson, our conclusion remains unchanged.

C.C. (Mother) appeals from the juvenile court’s order denying her Welfare and Institutions Code section 388 petition requesting family maintenance services and return of her daughter, B.C. On appeal, Mother abandons her request for B.C.’s return and argues that the juvenile court erred when it denied her request for an additional six months of services. Mother claims that she established changed circumstances and showed that reunification was in B.C.’s best interests. We conclude that the juvenile court acted within its discretion in denying the section 388 modification petition and affirm the order.

Defendant Andrew Paul Gustafson appeals from a judgment entered following his negotiated pleas of no contest to arson of another’s property in case No. 19F3790 and vandalism causing over $400 in damage in case No. 20F5636. As to the latter case, defendant admitted a prior strike allegation based on the former. The trial court sentenced defendant to a stipulated total term of four years in prison in case No. 20F5636 and a concurrent three year upper term in case No. 19F3790. On appeal, defendant contends: (1) the trial court abused its discretion in denying his motion to withdraw his no contest plea in case No. 19F3790, and (2) alternatively, he must be resentenced under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill No. 567). We conclude the trial court did not abuse its discretion in denying his motion to withdraw his no contest plea in case No. 19F3790.

This case returns to us following remand to the trial court to exercise its discretion as to whether to strike defendant Montrell Woods’s firearm enhancement under Penal Code section 12022.53, subdivision (d) pursuant to the trial court’s authority under Senate Bill No. 620 (2017-2018 Reg. Sess.) and the associated amendment to section 12022.53, subdivision (h), effective January 1, 2018. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) Section 12022.53, subdivision (h) gives trial courts discretion to “strike or dismiss” a section 12022.53 enhancement “in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing . . . .”
At resentencing, the trial court declined to strike the enhancement.

Mahan Ranch, LLC, and associated persons and entities (collectively, Mahan Ranch) appeal from the trial court’s order disqualifying Ferguson Case Orr Paterson LLP (FCOP) as their attorney of record in the ongoing litigation concerning the Las Posas Valley groundwater basin (the Basin Litigation). Mahan Ranch contends: (1) FCOP had no conflict of interest based on its previous work for Berylwood Heights Mutual Water Company and Zone Mutual Water Company (collectively, Respondents), but even if it did the disqualification motion should have been denied either (2) as untimely, or (3) because Respondents waived the conflict. We agree with Mahan Ranch’s second contention, and vacate the disqualification order.