CA Unpub Decisions

Defendant Ariel Aldo Bautista was charged by information with one felony count of assault by means of force likely to produce great bodily injury (GBI) with an attached sentence enhancement for personal infliction of GBI (Pen. Code, §§ 245(a)(4), 12022.7, subd. (a)), and one felony count of battery with infliction of serious bodily injury (§§ 242, 243, subd. (d)). Pursuant to the parties’ plea agreement, the prosecutor amended count 1 to assault with a deadly weapon other than a firearm, in violation of section 245, subdivision (a)(1), and moved to dismiss the sentence enhancement allegation and count 2. Defendant entered an open plea of guilty to count 1 as amended.
The trial court dismissed the enhancement attached to count 1 and count 2, and sentenced defendant to the upper term of four years in prison. Relevant to this appeal, the court also imposed the following fines and fees:

Defendant Joshua Michael Mejia was convicted of robbery and first degree murder in 2005. He petitioned for resentencing under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) in 2019. The court concluded defendant had made a prima facie showing of eligibility for relief, so it issued an order to show cause and set the matter for an evidentiary hearing.
After holding a telephonic evidentiary hearing during which defendant represented himself, the court denied the petition. On appeal, defendant argues the court applied the wrong standard at the evidentiary hearing, requiring reversal of the denial of his petition. The People concede the court used the wrong standard when denying the petition, but they contend the error was harmless and the denial of the petition should be affirmed.
We reverse the trial court’s order denying the petition and remand for further proceedings consistent with this opinion.

Appellant Derek Robert King was convicted by jury of second degree burglary (Pen. Code, § 459), attempted burglary (§§ 664/459), and misdemeanor possession of stolen property (§ 496, subd. (a)). Following a bifurcated hearing, the trial court found true an allegation alleging King had suffered a prior strike conviction within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) King was sentenced to an aggregate prison term of six years eight months.
On appeal, King contends his post-verdict motion for a new trial should have been granted for two reasons: (1) Juror No. 2 received evidence outside of court proceedings, which he failed to disclose until after a verdict had been reached; and (2) Juror No. 2 failed to participate in the deliberative process. King further contends (3) remand is required because the trial court abused its discretion in relying upon Juror No. 2’s testimony in denying King’s motion for a new trial. We affirm.

Appellant Mike Yang was convicted by a jury of two counts of oral copulation or sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and two counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)). The convictions arose from Yang’s two instances of sexual assault against a minor (J.Y.).
Yang raises three issues on appeal. First, he claims the trial court erred when it received J.Y.’s multi-disciplinary (MDIC) interview into evidence. The MDIC interview was conducted in 2012 (seven years before trial) - wherein J.Y. described Yang’s two assaults. The trial court received the MDIC interview in evidence pursuant to Evidence Code section 1360, which allows for statements describing abuse of children under the age of 12 years to be admitted. Second, Yang claims the trial court abused its discretion by denying his Romero motion to strike his prior rape conviction at sentencing.

This matter was tried as a capital case. After a seven-week trial, Aaron Brian Rowe (appellant) was acquitted of first degree torture murder, but found guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1). Appellant was also acquitted of assault on a child causing death but found guilty of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The victim was appellant’s 47-day-old daughter, Peyton. The trial court sentenced appellant to prison for a term of 15 years to life for count 1 and imposed a three-year term for count 2, which was stayed pursuant to Penal Code section 654.
At trial, appellant’s defense was accident or, at most, involuntary manslaughter for failing to seek medical attention after an accident. On appeal, appellant contends that (1) the trial court abused its discretion in allowing medical experts to testify that Peyton’s injuries were nonaccidental and traumatic in nature;

Omar Jesus Cervantes appeals the denial of his Penal Code section 1170.95 petition to vacate his conviction for second degree murder. After his counsel filed a no-issue brief under Anders/Wende , Cervantes filed his own supplemental brief challenging the sufficiency of the evidence supporting the denial order. We affirm.

In 2016, a jury convicted Kevin Brizuela of two counts of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of attempted murder (§§ 187, subd. (a) & 664). Gang enhancement under section 186.22 and firearm enhancements under section 12022.53 were found true as to each of the counts. The trial court sentenced Brizuela to an indeterminate term of 100 years to life.
Brizuela appealed and this court affirmed the convictions. However, the court conditionally reversed the judgment and directed the trial court to conduct a transfer hearing under Welfare and Institutions Code section 707. (People v. Brizuela (Oct. 11, 2018, D071364) [nonpub. opn.].)
On remand, the trial court held a transfer hearing and denied transfer to juvenile court. The court also denied motions to strike the firearm enhancements. Brizuela, again, appealed and this court affirmed the judgment in an unpublished opinion. (People v. Brizuela (July 19, 2021, D078376) [nonpub. opn.].)

Defendant William Dexter Ohlinger was sentenced to 22 years in prison based on a 20-count amended information that included multiple enhancements for crimes he committed between April and September 2019. These crimes were committed by Ohlinger while a member of the White Power Gangsters (WPG), and included robbery, burglary, possession of a firearm and live ammunition, transportation of methamphetamine for sale, false impersonation, felony evasion, and participation in a criminal street gang. By mid-2019, WPG had committed about 80 robberies and burglaries of marijuana grow houses, with the proceeds benefitting WPG and the Aryan Brotherhood prison gang. All of the crimes in this case were investigated by the San Bernardino County Sheriff ’s Department.
On appeal, Ohlinger contends: (1) the trial court erred in failing to instruct the jury sua sponte on unanimity for second degree robbery (count 18);

Andrew H. Griffin, III dba Law Office of Andrew H. Griffin, III (hereafter, Griffin) represented Richard J. Maraziti in a legal malpractice case against Maraziti’s former attorney, William Rathbone. During that litigation, Griffin made false statements to the trial court concerning the availability and preparedness of Maraziti’s designated expert witnesses. Based in part on these misstatements, the court precluded one of the expert witnesses, and possibly two of them, from testifying at trial. The case proceeded to trial, judgment was entered in favor of Rathbone, and Maraziti appealed. While the appeal was pending, the matter was resolved through a confidential settlement agreement reached during mediation.
After the prior legal malpractice case concluded, Maraziti filed the present action against Griffin for legal malpractice, breach of fiduciary duty, fraud, and breach of contract based on Griffin’s making of false expert witness statements.

Channel Johnson stabbed her friend after a verbal argument. Johnson contended she was acting in self-defense, but a jury convicted her of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a deadly weapon (id., § 245, subd. (a)(1); count 2), and cruelty to a child by inflicting mental suffering (id., § 273a, subd. (b); count 3). The jury further found that the attempted murder was willful, deliberate and premeditated (id., § 189); that Johnson personally used a dangerous and deadly weapon, a knife (id., §§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)); and that she personally inflicted great bodily injury (id., §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)).
On appeal, Johnson contends the trial court erred when it allowed the prosecution to introduce evidence of a prior stabbing incident under Evidence Code section 1101, subdivision (b).

Appellant J.D. appeals from the trial court’s order renewing a domestic violence restraining order (DVRO) issued against him to protect his former girlfriend S.S. He contends the trial court erred in (1) finding a single act of abuse was sufficient to justify the DVRO, (2) reissuing the DVRO despite a substantial change in circumstances, and (3) refusing to modify the DVRO. Finding no error, we will affirm the trial court’s order.

A jury found defendant Deandre Lynch guilty of three counts of domestic violence and one count of simple assault. The trial court imposed an upper term sentence on the principal domestic violence count. Defendant contends that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567), which took effect while his appeal was pending, applies retroactively to his case and requires reversal of his sentence and remand for resentencing. The People agree Senate Bill 567 applies retroactively but argue the trial court sufficiently complied with the new law in selecting an upper term sentence and any error was harmless. We agree with the parties that Senate Bill 567 applies retroactively. We further conclude that the trial court’s consideration of aggravating circumstances that are inconsistent with the new statutory standard was harmless error.

Defendant Shawn Michael Jones entered a negotiated plea of no contest to five sex-related offenses against five minors. He was sentenced to the stipulated prison term of 14 years eight months. Defendant contends on appeal the trial court erred in imposing a restitution fine of $4,200 pursuant to Penal Code section 1202.4, subdivision (b), after he agreed in his written plea agreement to a restitution fine of only $300. The People concede that defendant is entitled to the relief he seeks.

In 2020, following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant Terry Buford filed a petition pursuant to Penal Code section 1170.95 to be resentenced on his conviction of attempted murder. The trial court denied the petition at the prima facie stage without issuing an order to show cause, concluding defendant was ineligible for resentencing because he was convicted of attempted murder rather than murder. The court also concluded defendant was ineligible because, in finding him guilty of conspiracy to commit murder, the jury necessarily determined he had the intent to kill. Finally, the court rejected defendant’s equal protection claim. Defendant appeals, asserting the trial court’s determinations were erroneous. After the matter was fully briefed, we ordered supplemental briefing on the impact, if any, of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) on defendant’s appeal.
We affirm.