CA Unpub Decisions

Alexis Taylor Schrage, former trustee of the Joseph Schrage Revocable Trust (Trust), appeals from a May 18, 2021 probate court judgment granting Leonard Schrage’s petition under Probate Code section 850 for an order that the proceeds from the life insurance policies in the name of Leonard’s deceased brother Joseph Schrage are subject to Leonard’s claim based on a 2019 civil judgment Leonard obtained against Joseph and another brother, Michael Schrage. Alexis also appeals from the probate court’s order granting Leonard’s ex parte application to suspend Alexis’s powers as trustee and to appoint an interim successor trustee.
While this appeal was pending, on September 2, 2021 we reversed the 2019 judgment, concluding Leonard did not have standing to assert an individual cause of action against Joseph and Michael for breach of fiduciary duty. (Schrage v. Schrage (2021) 69 Cal.App.5th 126, 158.)

Walter Ramirez appeals the denial of his Penal Code section 1170.95 petition for resentencing following an evidentiary hearing. Appellant argues the evidence was insufficient to establish beyond a reasonable doubt that appellant was the actual killer or harbored express malice, and his murder conviction must therefore be vacated and the matter remanded for resentencing. We disagree and affirm the denial of the petition under section 1170.95.

A jury convicted Patrick Dwight Birdsong, Jr. of murdering Richard Juarez and attempting to murder Richard De la Cruz on the evening of November 3, 2009. After the Legislature enacted Penal Code section 1170.95, Birdsong filed a petition for resentencing of his murder conviction. He also argued at a hearing on the petition for resentencing that he should be resentenced on his attempted murder conviction. Although the trial court had appointed counsel for Birdsong, the trial court summarily denied the section 1170.95 petition before any party filed the briefs contemplated by section 1170.95, subdivision (c).
Birdsong contends the trial court committed prejudicial error because the jury was instructed about the natural and probable consequences doctrine with regard to his attempted murder conviction. We agree with Birdsong and will reverse the trial court’s order denying his section 1170.95 petition.

Gelene C. (Mother) appeals from the juvenile court’s order terminating her parental rights over 13-year-old Savannah J. Mother contends the juvenile court erred in finding the beneficial parental relationship exception to termination of parental rights did not apply. We affirm.

Eddie Anthony Perez (defendant) appeals the trial court’s summary denial of his motion for relief under Penal Code section 1170.95. The trial court’s denial was error because the record of conviction did not foreclose relief as a matter of law. We accordingly reverse and remand for an evidentiary hearing.

As explained in our opinion, this appeal arises out of two orders issued by the trial court: (1) an injunction, directing the parties to conduct an election for corporate officers/board of directors, and (2) an order appointing a receiver to oversee the election. In this appeal, appellants challenge both orders on a variety of procedural and substantive grounds. We conclude, however, that appellants have forfeited their assertions of error by failing to raise them in the trial court.
Accordingly, we affirm the court’s orders.

By information, defendant and appellant Kurtis Tyron King was charged with first degree murder (Pen. Code, § 187, subd. (a)) in connection with the killing of John Bannon. The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder (§ 12022, subd. (b)(1)). In December 2019, defendant was convicted as charged and sentenced to 25 years to life for murder, plus a consecutive one-year term for the weapon use enhancement.
On direct appeal from his judgment of conviction, defendant contends the appellate record is inadequate to permit meaningful review. He also challenges the sufficiency of the evidence supporting his conviction for first degree murder, and contends the court committed three errors when instructing the jury. Finally, he requests that we correct his abstract of judgment as to fines, fees, and assessments.

This appeal is from the trial court’s summary denial of defendant and appellant Robert Gonzales’s petition under Penal Code section 1170.95 seeking resentencing on his conviction for second degree murder. We affirmed the court’s summary denial in a previous opinion (People v. Gonzales (Jan. 26, 2021, B304024) [nonpub. opn.] (Gonzales II)). Thereafter, the Supreme Court granted review and transferred the matter back to us with directions to vacate the decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (S.B. 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
We vacate our prior opinion in Gonzales II and, after reconsidering the cause, agree with the parties that the trial court erred by summarily denying appellant’s petition for resentencing. We reverse the order and remand the matter to the trial court with directions to issue an order to show cause and proceed in accordance with section 1170.95, subdivision (d).

Gregory Steven Garcia (defendant) was convicted of second degree murder. The trial court sentenced defendant to 40 years to life. As part of that sentence, the court imposed a term of 25 years to life for personally and intentionally discharging a firearm and proximately causing death pursuant to Penal Code section 12022.53, subdivision (d). Defendant appealed, arguing that the court should have exercised its newly conferred authority—under section 12022.53, subdivision (h)—to “strike or dismiss an enhancement” under section 12022.53 to substitute a 10-year or 20-year enhancement under subdivisions (b) or (c) of section 12022.53. We rejected this argument in a published opinion, reasoning that the lesser enhancements had not been presented to, or found to be true by, the jury. (People v. Garcia (2020) 46 Cal.App.5th 786.)

On July 15, 2011, the medical staff of Cedars-Sinai Medical Center (Cedars) summarily suspended Hooman Melamed, M.D.’s privileges to perform back surgeries in scoliosis and kyphosis cases, after Dr. Melamed’s operation on a 12-year-old scoliosis patient resulted in complications and necessitated a second, corrective surgery. In a year-long peer review hearing that began in September 2012 and concluded in November 2013, Dr.
Melamed challenged the summary suspension of his privileges (and other recommendations of Cedars’s medical staff). The Hearing Committee concluded, among other things, the summary suspension was reasonable and warranted when it was imposed on July 15, 2011 but, at the time of the Hearing Committee’s decision in January 2014, the portion of the initial suspension that remained in effect should be terminated and Dr. Melamed’s privileges reinstated, with prospective review of his clinical management in pediatric and adolescent scoliosis cases.

In 2017, defendant David Shivers fatally shot Rodney Lee after an argument that began when Shivers asked Lee to move his car. A jury found Shivers guilty of second-degree murder and being a felon in possession of a firearm. Shivers appeals, making four arguments: (1) the trial court erred in failing to define the terms “initial aggressor” and “starts a fight” in one jury instruction; (2) the trial court erred in allowing a readback of certain testimony requested by the jury in the absence of defense counsel; (3) the jury committed misconduct by learning of the issuance of a shelter-in-place order on March 16, 2020, the final day of their deliberations, and the trial court erred in its response to the jury’s question about how that order would affect deliberations; and (4) the police violated due process by allowing a server allegedly holding a recording of an interview with a key prosecution witness to be destroyed. We reject the arguments, and we affirm.

Aziz Artykov appeals from a trial court order requiring him to pay victim restitution to AvalonBay Communities, Inc. (Avalon) pursuant to Penal Code section 1202.4. We affirm.

As part of a global resolution of several cases, defendant Cory James Rodgers pleaded no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), misdemeanor inflicting corporal injury on a spouse, cohabitant, or child’s parent (Pen. Code, § 273.5), and misdemeanor battery on a spouse, cohabitant, or noncohabitant (§ 243, subd. (e)(1)). Pursuant to section 1170, subdivision (h), the trial court sentenced defendant to 16 months in the county jail for his violation of Vehicle Code section 10851, subdivision (a). The court sentenced defendant to a consecutive 180 days in the county jail for his violation of section 273.5 and a consecutive 312 days in the county jail for his violation of section 243, subdivision (e)(1).
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case but raises no issues.

Defendant Lannie Dana Dulin pleaded no contest to grand theft by an employee, embezzlement, and forgery. He admitted allegations that he took property exceeding $1.3 million. The trial court imposed a total term of five years eight months in prison and ordered restitution in the approximate amount of $2 million.
We appointed counsel, who filed an opening brief stating the case and the facts but raising no specific issues. We notified Dulin of his right to submit written argument on his own behalf within 30 days, and we received no response.
We have reviewed the entire record under People v. Wende (1979) 25 Cal.3d 436 (Wende). (See also People v. Kelly (2006) 40 Cal.4th 106 (Kelly).) We conclude there is no arguable issue and we will affirm the judgment.