CA Unpub Decisions

In 2014, defendants Diamonte Jerome McGhee and Eric Michael Edwards were convicted by jury on numerous counts, including special circumstance murder, attempted murder, assault with a firearm, and robbery. In our original decision filed March 16, 2017, we affirmed their convictions based on the law that existed at that time.
Defendant Edwards petitioned our Supreme Court for review. Defendant McGhee did not seek review. On April 10, 2019, the Supreme Court transferred the matter back to this court with directions to vacate our decision in its entirety and reconsider the cause in light of the passage of Senate Bill 1437 (2017–2018 Reg. Sess.).

A jury found defendant Daniel Velazquez-Cordero guilty of multiple counts of robbery and false imprisonment for his role in the armed robbery of a bank in Daly City. The evidence admitted at trial included cell phone records showing defendant’s location in Daly City at the time of the robbery. On appeal, defendant contends the trial court erred in admitting this location data evidence because it had been previously suppressed twice, and under Penal Code section 1538.5, subdivisions (j) and (p), the People could not relitigate the matter a third time. We find no error, as the second of the two rulings in question did not constitute a grant of a suppression motion within the meaning of section 1538.5. Accordingly, we affirm the judgment.

We have been seeing a distinct pattern in recent juvenile dependency appeals. Pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and its implementing provisions under California law, our trial courts and social services agencies are responsible for conducting appropriate inquiries and giving notice, if required, to Native American tribes of the potential involvement of tribal members in child custody proceedings. This responsibility falls on our state judicial and administrative systems precisely because we have an unfortunate national history of failing to “recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” (25 U.S.C. § 1901, subd. (5).) Thus, the inquiry and notice requirements of ICWA and related state law are not a ministerial exercise. They are an essential safeguard of rights.

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.

Appellant Andres Felipe Diaz-Guerrero and his codefendant Usiel Alcaraz were convicted of attempted murder and other crimes for shooting a man they were attempting to rob. Alcaraz was convicted as the shooter, and appellant was convicted under aiding and abetting principles. After we affirmed their judgments on appeal (People v. Alcaraz et al. (Apr. 7, 2020, G057009) [nonpub. opn.]), the California Supreme Court denied Alcaraz’s petition for review, and a partial remittitur was issued as to him on July 9, 2020. However, the Supreme Court granted appellant’s petition for review and transferred the matter back to us with directions to vacate our decision and reconsider his case in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775), which became effective on January 1, 2022.
In accordance with those directions, we vacate our prior decision as to appellant.

Appellant and defendant Mohamed Bocoum entered into a plea agreement and was sentenced to the lower term of two years in prison. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.

In 2008, appellant Rodger Dale Alley Jr. was convicted after a jury trial of first degree murder and sentenced to 25 years to life plus two years for prior prison term enhancements. His conviction and sentence were affirmed on direct appeal.
In 2021, Alley filed a petition for resentencing pursuant to Penal Code section 1170.95, and asserted he was not the actual killer, he was convicted under the felony-murder rule and/or the natural and probable consequences doctrine, and he could not be now convicted of first or second degree murder because of the amendments to sections 188 and 189. The court denied the petition and found he was ineligible for relief.
On appeal, Alley argues the matter must be remanded because the court failed to appoint counsel, allow for briefing, or conduct a hearing to fully develop the record and determine whether he made a prima facie case for relief, as required by section 1170.95. We find the court’s statutory errors were not prejudicial and affirm.

Stephen Michael Lopez and three codefendants—Robert Ramos, Francisco Nava, and Ruben Perez—engaged in a confrontation at a convenience store with E.D. and his girlfriend, C.A. They yelled rival gang slurs at E.D., Lopez and Perez threw drinks into the car E.D. and C.A. were sitting in, and Lopez grabbed E.D.’s shirt, struck him in the back of the head, and scratched his neck. Perez also tried to grab E.D. E.D. drove away. E.D. saw a black car speeding toward him, heard two gunshots and glass breaking, and felt an impact on his car. He saw the black car on the left side of his car and the back passenger window rolled down.
The four defendants were charged with multiple offenses in relation to the incident. At trial, the prosecution presented expert testimony on street gangs, evidence of the defendants’ prior contacts with police, and certified records of conviction of Norteño gang members as proof of a pattern of gang activity to prove the street gang enhancements.

In an amended information filed July 13, 2018, the Fresno County District Attorney charged defendant Jonathan Boyd with several prostitution related crimes concerning three victims: Michelle M., Jessica D. and minor Toni B.

On July 27, 2009, an amended information charged defendant with three counts of lewd and lascivious acts upon a child under 14 (Jane Doe) by use of force, violence, duress, menace and fear under Penal Code section 288, subdivision (b)(1) (counts 1-3). The information also alleged that counts 1 and 2 occurred on or about May 2006, and count 3 occurred “on or about the year of 2006.”
On November 5, 2009, as to count 1, a jury found defendant guilty of violating section 288, subdivision (a), a lesser included offense of section 288, subdivision (b)(1). The court declared a mistrial on its own motion as to counts 2 and 3. After the court and counsel conferred regarding a section 288.1 referral, the court appointed Dr. Robert Suiter to examine defendant and to provide a report. The court also ordered both defense counsel and the prosecutor to submit simultaneous sentencing memorandums.

The San Bernardino County District Attorney filed a Welfare and Institutions Code section 602 petition as to defendant and appellant, L.N. (minor), alleging one count of possession of a firearm by a minor. (Pen. Code, § 29610.) A juvenile court found true the allegation, declared him a ward of the court, and placed him in his father’s custody under specified probation conditions. The court found the maximum term of confinement in this case was three years.
On appeal, minor contends: (1) the probation condition stating that he not possess, or act like he possesses, a dangerous or deadly weapon is unconstitutionally vague and overbroad; and (2) the court erred in setting the maximum term of confinement since he was not removed from the custody of his father. The People concede, and we agree, that the maximum term of confinement should be stricken. Otherwise, we affirm.

J.C. (Father) and F.Y. (Mother) are the parents of seven-year-old Joe.C., a girl born in May 2014, and four-year-old Jos.C., a boy born in August 2017. Father appeals from the juvenile court’s jurisdictional (Welf. & Inst. Code, § 300, subd. (b)) and dispositional (§ 361) orders only as to him. He does not challenge the jurisdictional and dispositional orders as to Mother. Father contends that there was insufficient evidence to support the juvenile court’s finding sustaining the petition against him under section 300, subdivisions (b). He also contends that the juvenile court abused its discretion in ordering random substance abuse testing as part of his case plan. We disagree with Father’s first claim of error, but agree that the court erred in ordering Father to undergo random drug (as opposed to alcohol) testing as part of his family maintenance case plan.

Mother and Father share joint legal custody of their minor child, J.B., and Mother has physical custody. In March 2021, Mother filed a request to move away from California to Arizona. Family Court Services provided a written report that recommended the court grant the move-away request. It also recommended that Father have the opportunity to parent J.B. two weekends each month in Arizona, in Mother’s community. Then, after at least three consecutive visits within a three-month period, Father would have additional parenting time during school breaks and holidays, as detailed in the parenting agreement.
The parties appeared before the court on June 8, 2021. At the hearing, Mother testified that she wanted to move because the cost of living is lower in Arizona, and she would receive a work promotion if she moved.
Father explained to the court he opposed the move-away request because it granted him visitation for weekend periods, but he did not work Monday through Friday;

Defendants and appellants Colleen Dolan-Clune, Jon Rigney, and Elisabeth Dawson, then members of the board of directors (the Board) of the Camino Professional Office Condominium Association (POA), appeal from an order denying their Code of Civil Procedure section 425.16 special motion to strike the complaint filed by plaintiff and respondent Hope Simpson, who is the trustee of a family trust which owns two units in the Camino Professional Office Condominiums (property). In denying the motion, the court ruled the gravamen of Simpson’s complaint, which alleged a single cause of action for breach of fiduciary duty, was that appellants had engaged in conduct that did not arise from protected activity. The court therefore did not reach the second prong of the anti-SLAPP inquiry regarding appellants’ reasonable probability of prevailing on the merits of the claims.