CA Unpub Decisions

Appointed counsel for defendant Shawn Thomas Williamson filed an opening brief setting forth the facts of the case and asking this court to review the record in order to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After we issued our opinion, affirming the judgment, defendant filed a petition for rehearing. In his petition, defendant argued that while his appeal was pending, the Legislature amended Penal Code, section 1170, subdivision (b) and he was entitled to the ameliorative benefits of those amendments. We granted the petition.
On rehearing, the People concede the recent amendments to section 1170, subdivision (b), effective January 1, 2022, apply retroactively to defendant. We accept the concession and remand the matter for resentencing in light of those amendments.

Defendant Andrew Anthony Cejas appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95. Defendant contends the trial court erred in summarily denying his petition after determining he failed to establish a prima facie case under the provisions of the statute. He contends the trial court should have issued an order to show cause and allowed his petition to proceed for full consideration on its merits, and the People agree. We will reverse the trial court’s order denying the petition for resentencing and remand the case for further proceedings.

Defendant Michael Byron Simmons was tried by jury and convicted of one count of committing a lewd or lascivious act on his niece and goddaughter, B., a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a). The trial court sentenced defendant to serve the middle term of six years in state prison and imposed other orders.
The central issues in this appeal involve a pretext phone call between B.’s father and defendant, in which defendant admitted touching the child’s vagina on one occasion. Defendant contends: (1) his trial counsel provided constitutionally deficient assistance by failing to move to exclude defendant’s admission during the phone call because it was involuntarily made as a result of coercion;

Defendant Nathaniel Khalid Sanders, Jr., pleaded no contest to dissuading a witness by force and sexual battery. The trial court granted him formal probation for four years. Defendant argues the trial court erred in failing to conduct a Marsden hearing when he sought to withdraw his plea. He also objects to the condition of his probation prohibiting him from possessing pornography. He further argues the trial court failed to recite each of the fines and fees it imposed on defendant on the record. We will affirm the judgment and uphold the probation condition with a modification. We agree with the Attorney General’s concession the failure of the trial court to state the fines and fees on the record requires remand of the case.
While this appeal was pending, the Legislature enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 328) (Assem. Bill No. 1950), which amended Penal Code section 1203a to provide the maximum probationary period for felonies is two years.

Defendant Raymond Walston III pled guilty to possession of a controlled substance while armed with a firearm, willfully driving a vehicle on a highway in the direction opposite to lawful traffic during flight from a pursuing peace officer, and resisting an executive officer. The trial court sentenced defendant to the upper terms of imprisonment for willfully driving a vehicle on a highway in the direction opposite to lawful traffic during flight from a pursuing peace officer and for resisting an executive officer. The court further imposed $1,500 in restitution fines, a $120 court operations assessment, a $90 convictions assessment, and a $360 drug program fee. Defendant appeals the imposition of the upper terms of imprisonment and these fines, assessments, and fee.
We agree defendant’s case must be remanded for resentencing under newly enacted legislation requiring the trial court to impose a term of imprisonment not exceeding the middle term unless:

Defendant Mario Junior Garcia shot and killed his neighbor during a dispute. A jury found defendant guilty of second degree murder and found true the allegation that he personally discharged a firearm causing death. On appeal, he contends the trial court erred in admitting evidence of his involvement in a jail fight, and also claims the matter should be remanded for the court to consider reducing the gun enhancement. We agree with the latter claim and remand for exercise of sentencing discretion; we otherwise affirm the judgment.

More than a decade after California dissolved its redevelopment agencies (RDA’s), we continue to grapple with questions regarding the former RDA’s continuing obligations. (Cuenca v. Cohen (2017) 8 Cal.App.5th 200, 207 (Cuenca); County of Sonoma v. Cohen (2015) 235 Cal.App.4th 42, 44.) In dissolving the RDA’s, the Legislature recognized that some agreements and loans made in connection with redevelopment projects would require continued funding. (Cuenca, at p. 207; Health & Saf. Code, § 34191.4, subd. (b)(2)(C)(i).) As part of the Dissolution Law, the Legislature specified that enforceable obligations may be paid only under the oversight of the Department of Finance (DOF) and State Controller. (City of Emeryville v. Cohen (2015) 233 Cal.App.4th 293, 298-299 (City of Emeryville).)

Mother Veronica D. appeals from the juvenile court’s orders terminating her parental rights to her children J.D. (born July 2014) and R.D. (born July 2016). Mother contends the orders must be reversed because the Los Angeles County Department of Children and Family Services (Department) failed to comply with its duty of initial inquiry under state law (Welf. & Inst. Code, § 224 et seq.) implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it did not ask extended family members if the children had Indian ancestry. We agree with mother that section 224.2, subdivision (b) (section 224.2(b)) required the Department to interview identified and available maternal extended family members. It did not.

Marvin Lee James appeals from an order denying his petition for resentencing under Penal Code section 1170.18, which is part of the Safe Neighborhoods and Schools Act (Proposition 47). Our review is under People v. Wende (1979) 25 Cal.3d 436.
In 1985, James was convicted of taking a vehicle without the owner’s consent in violation of Vehicle Code section 10851, as a felony. In 2021, James petitioned for resentencing to reduce his conviction to a misdemeanor pursuant to Proposition 47 and section 1170.18. The People opposed the petition, indicating that James’s prior conviction for violating former section 288a, subdivision (c) disqualified him under section 667, subdivision (e)(2)(C)(iv). The trial court agreed with the People and denied James’s petition on June 9, 2021.
James appealed.

Plaintiff Franklin Fraley, Jr. (Fraley) sued the attorney defendants for impairing his attorney lien against settlement proceeds. The trial court granted defendants’ anti-SLAPP motion, struck the entire complaint, and awarded defendants attorney fees and costs. On appeal, Fraley contends that defendants failed to satisfy their burden to show that all of the alleged wrongful conduct underlying the complaint was protected activity and that, in any event, he showed the requisite probability that he would prevail on his claims. We reverse, in part, and remand with instructions.

A jury convicted defendant and appellant Anthony Tolano of first degree murder (Pen. Code, § 187, subd. (a) ) and possession of a firearm by a felon (§ 29800, subd. (a)(1)); it found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life in state prison. On appeal, defendant challenges as unconstitutional three CALCRIM jury instructions that address post-offense conduct that might show an awareness of guilt. We affirm.

A jury convicted defendant and appellant Willie Crockett of multiple counts of attempted murder, robbery and attempted robbery, assault with a firearm, shooting at an inhabited dwelling, and possession of a firearm by a felon, with gang and firearm enhancements. Crockett appealed, contending: (1) there was insufficient evidence to support certain of the gang enhancements; (2) the trial court erred by admitting expert gang testimony in violation of state law and his confrontation rights (People v. Sanchez (2016) 63 Cal.4th 665); (3) one of the premeditated attempted murder convictions was not supported by sufficient evidence of premeditation; and (4) the matter had to be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to then-recent amendments to Penal Code section 12022.53.

David Vargas was placed on probation after a jury convicted him of simple possession of methamphetamine as a lesser included offense of possessing methamphetamine for sale and he pleaded no contest in a separate case to petty theft. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.

Appellants Uriel and Hortencia Gutierrez sued their lender Fremont Bank, as well as respondents SN Servicing Corporation (SN Servicing) and Zieve, Brodnax & Steele, LLC (ZBS), alleging Fremont Bank had refused to reconvey the deed of trust after appellants paid off their revolving line of credit. The trial court sustained respondents’ demurrer without leave to amend and dismissed the operative complaint as to respondents. Appellants now argue (1) the trial court erred because they pled sufficient facts to support their breach of contract and quiet title claims against respondents; or (2) in the alternative, the trial court abused its discretion in denying leave to amend. We affirm.