CA Unpub Decisions

C.F. (mother) appeals from a juvenile court dispositional order denying her visitation with her daughter, Angelina, after Angelina’s removal from the care of a legal guardian. We conclude that the court did not err by finding that visitation with mother would be detrimental and therefore affirm.

A jury found Gregory Fakinos guilty of one count of attempted murder and found it to be true that Fakinos committed the attempted murder willfully, deliberately, and with premeditation, and that in the course of committing attempted murder Fakinos inflicted great bodily injury on another person who was not an accomplice. The trial court sentenced Fakinos to a term of seven years to life on the attempted murder conviction with a consecutive three year term for infliction of great bodily injury.
Fakinos filed a notice of appeal. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel has suggested three potential issues to assist us in conducting our independent review. Fakinos was granted a total of 72 days in which to file a supplemental brief on his own behalf.

Jose Manuel Penaloza appeals from the sentence imposed after his conviction under Penal Code sections 261.5, 288a, and 288. He asserts that newly amended section 1170 applies to him, and his judgment was not final when the amendment went into effect. In addition, a new amendment to section 654 could have an ameliorative effect on his sentence. Accordingly, his sentence should be vacated and remanded for resentencing under the new laws. The Attorney General agrees, and we concur and return the matter to the trial court for resentencing.

Belmon Charles Smith challenges his convictions for attempted pimping and attempted pandering. He asserts the trial court denied him his right to a fair trial by failing to discharge a Spanish speaking juror who looked up the dictionary definitions of pimping and pandering during deliberations. We find no error and affirm the judgment.

Byron Christopher Chinchilla appeals from the trial court’s order denying his Penal Code section 1170.95 petition. Chinchilla argues section 1170.95 provides relief for those convicted of attempted murder and he is entitled to a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
We filed an opinion affirming the trial court’s denial of Chinchilla’s petition. After our Supreme Court granted review and held the matter, the court transferred the matter with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775). The parties filed supplemental briefs on the effect of SB 775 on this appeal.
As we explain below, we must remand the matter for the trial court to consider in the first instance whether Chinchilla is entitled to relief under the recently enacted SB 775. His other contention has no merit. We reverse the postjudgment order and remand for further proceedings.

Minor C.Q. appeals from a disposition order adjudging her a ward of the juvenile court and committing her to an in-custody drug treatment program. On appeal, minor argues that (1) the juvenile court failed to correctly award her predisposition custody credits against her maximum term of confinement, and (2) the minute order reflecting the terms of her probation should be corrected to remove the conditions not orally ordered by the juvenile court at the disposition hearing. The People agree as to the first issue but disagree as to the second. We order the disposition order modified to award minor eight days’ predisposition custody credits against her maximum term of confinement. As modified, we affirm.

Defendant Marcus Dion Whittaker was convicted of first degree murder and robbery in 2008. The jury also found true a felony-murder special-circumstance allegation the murder was committed during the commission or attempted commission of a robbery pursuant to Penal Code section 190.2, subdivision (a)(17)(A). (Undesignated statutory references are to the Penal Code.) Defendant petitioned for resentencing under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) in 2021. The court denied defendant’s petition based upon the true finding on the special circumstance allegation. On appeal, defendant contends the court erred in denying his petition on this basis.
We conclude the record establishes defendant is ineligible for resentencing as a matter of law. Accordingly, we affirm the trial court’s order.

Petitioner Houston Eugene Mathews petitioned the trial court for resentencing on his conviction for first degree murder. (Pen. Code, § 1170.95.) The court summarily denied the petition.
On appeal, petitioner argues the trial court reversibly erred in failing to state the basis for its ruling. We conclude the error was harmless because the record of conviction establishes petitioner is ineligible for resentencing as a matter of law. Accordingly, we affirm.

In 1999, petitioner Chavonne Marie Malone pled nolo contendere to the first degree murder of Walter P. (Pen. Code, § 187; subd. (a); count 5), the first degree murder of Glenn N. (§ 187, subd. (a); count 9), and the attempted murder of Terry S. (§§ 187, subd. (a), 664; count 1). As to count 5, petitioner admitted the special circumstances that petitioner had been convicted of more than one offense of murder in the first or second degree (§ 190.2, subd. (a)(3)) and that petitioner committed the murder while engaged in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)) and kidnapping (§ 190.2, former subd. (a)(17)(ii)). As to count 9, petitioner admitted that petitioner committed the murder while engaged in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)), burglary (§ 190.2, subd. (a)(17)(G)), carjacking (§ 190.2, former subd. (a)(17)(xii)), and a firearm enhancement (§ 12022.5, subd. (a)).

This matter was transferred to us from the California Supreme Court with directions to vacate our prior nonpublished decision in People v. Mendez (June 15, 2021, F079853) 2021 Cal.App. Unpub. Lexis 3859 (Mendez I), and reconsider the cause in light of Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483). (Stats. 2021, ch. 728, § 1, 3.) As discussed below, we shall remand the matter for resentencing under Penal Code section 1171.1, added by Senate Bill 483.

Appellant Jose Epifanio Garcia, Jr., appeals his convictions following a jury trial. Garcia was found guilty of first degree murder (Pen. Code, § 187; count 1) of Rodolfo Garcia; assault with a firearm on Yesenia, Joel, and Maria (§ 245, subd. (a)(2); counts 3, 5, 7, respectively); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8); and participating in a street gang (former § 186.22, subd. (a); count 9). The jury found true enhancements for lying in wait (§ 190.2, subd. (a)(15)), being an active participant in a criminal street gang (§ 190.2, subd. (a)(22)), committing the offense to benefit a criminal street gang (former § 186.22, subd. (b)(1)), discharging a firearm in the commission of the offense (§ 12022.53, subd. (d), and personally using a firearm in a gang offense causing injury or death (§ 12022.53, subd. (e)(1)) as to count 1; benefiting a street gang (former § 186.22, subd. (b)(1)), personally using a firearm (§ 12022.5, subd. (a)),

Pursuant to a negotiated plea agreement, defendant and appellant, Daniel Charles Motsinger, pled no contest to negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a), count 1), indecent exposure (Pen. Code, § 314, subd. (1), count 2) and reckless driving while fleeing a police officer (Veh. Code, § 2800.2, subd. (a)). Pursuant to the plea agreement, the court sentenced defendant to two years of felony probation. After a probation officer filed a petition to revoke defendant’s probation, defendant filed a motion to withdraw the plea, which the court denied. After defendant filed a notice of appeal, and counsel for Appellate Defenders, Inc., filed an amended notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of facts, a statement of the case, and identifying one potentially arguable issue:

Defendant James Edward Smith pleaded no contest in three unrelated cases. The trial court sentenced him to a total of eight years in state prison and awarded custody credits. On appeal, defendant argues the trial court erred in failing to award custody credits as to one of the cases. The People claim the court properly awarded the credits in its oral pronouncement of judgment, but the credits were omitted from the clerk’s minute order and abstract of judgment. We agree defendant is entitled to custody credits and order the trial court to correct the minute order and abstract of judgment to accurately reflect the judgment imposed.

Defendant Jerry West, Jr., was found guilty of robbing and sexually assaulting four different women using a gun or threats of violence. (People v. West (Jan. 16, 2020, C084521) [nonpub. opn.].) He was sentenced to an aggregate determinate term of 115 years in state prison plus an indeterminate term of 331 years to life, which included terms for several firearm and prior serious felony enhancements that also were found true. (Ibid.) We affirmed his convictions on appeal, but remanded the matter for resentencing to allow the trial court to determine whether to exercise newly granted discretion to strike the firearm and prior serious felony enhancements given legislative changes that went into effect while defendant’s first appeal was pending.
At a resentencing hearing in which defendant appeared remotely via Zoom, the trial court declined to exercise its discretion to strike the various enhancements and confirmed defendant’s original sentence.