CA Unpub Decisions

In 2000, the jury found defendant and appellant Miguel Herrera guilty of first degree murder (Pen. Code, § 187 [count 1]) and conspiracy to murder (§ 69 [count 2]). The jury found true the allegations that Herrera committed the murder by lying in wait (§ 190.2, subd. (a)(15)), and that he committed the murder for financial gain (§ 190.2, subd. (a)(1)). The jury also found true the allegation that a principal was armed with a handgun. (§ 12022, subd. (a)(1).) The trial court sentenced Herrera to life without the possibility of parole in count 1, and imposed and stayed a sentence of 25 years to life in count 2 pursuant to section 654. The principal armed with a handgun enhancement was stricken under section 1385.
On appeal, another panel of this court modified the award of custody credits, but otherwise affirmed the judgment.

The trial court sustained demurrers to an original and a first amended complaint filed by Erik Syverson against Barbara Reeves and JAMS, Inc. (sometimes collectively referred to as JAMS) with leave to amend. In response to Syverson’s second amended complaint, JAMS and Reeves filed demurrers that raised the arbitral immunity doctrine as a defense for the first time. The trial court sustained the demurrers to the second amended complaint without leave to amend and entered judgment.
Syverson contends that Code of Civil Procedure section 430.41, subdivision (b) prohibited JAMS from raising arbitral immunity as a basis for demurrer for the first time in response to the second amended complaint. We need not determine whether Syverson’s contention has merit, however, because Syverson has not demonstrated that the trial court’s consideration of arbitral immunity was prejudicial. Absent prejudice, we must affirm.

The juvenile court assumed dependency jurisdiction over 17-month-old N.R., the son of S.H. (Mother) and O.R. (Father), after finding he was at substantial risk of serious physical harm from Father’s cocaine habit. The court removed N.R. from Father’s custody and placed him with Mother. Father asks us to decide whether substantial evidence supports the court’s substance-abuse-based jurisdiction finding and the related disposition order removing N.R. from his custody.

Defendant and appellant Oscar Ryan Mendoza appeals from his conviction by jury on one count of felony vandalism. (Pen. Code, § 594, subd. (a); count 2.) The jury acquitted defendant of arson of personal property (§ 451, subd. (d); count 1). After a bench trial, the court found true the allegation that defendant had suffered a prior conviction for a serious or violent felony. The charges arose from an incident in May 2020 in which defendant used a baseball bat to repeatedly strike a car belonging to Marvin Marroquin, and allegedly attempted to set the car on fire.
At sentencing, defendant made an oral motion to strike his prior strike conviction which the court denied. The court imposed a six-year prison term, selecting the upper term of three years which was then doubled due to the prior strike. Defendant was awarded 644 days of presentence custody credits. Defendant appealed.

Defendant and appellant Anthony James Scott appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95.
We affirm.

Penal Code section 1473.6 authorizes courts to vacate a criminal judgment based on newly discovered evidence of fraud or misconduct by a government official. We consider whether the trial court correctly denied defendant and appellant William Smith’s (defendant’s) section 1473.6 motion, which argued defense counsel and the trial court failed to properly advise him of his rights before he pled guilty.

Father Rudy Zuniga appeals a postjudgment order modifying the visitation of mother Armine Petrosyan with their child, S.Z., arguing the family court was required to, but did not find that changed circumstances justified the order. Finding the court’s order merely addressed visitation, and not custody, the best interests of the child standard controlled, and there was no abuse of discretion. We therefore affirm.

The trial court confirmed and entered judgment on an arbitration award in favor of plaintiff Berkeley Research Group, LLC (Berkeley) and against defendant Carl Sheeler (Sheeler). On appeal from the confirmation order, Sheeler contends the court erred because: (1) the arbitrator exceeded his authority by awarding consequential and punitive damages; (2) the award on certain counterclaims violated Sheeler’s nonwaivable rights under the Labor Code; and (3) the arbitrator failed to timely and adequately disclose his ownership interest in the arbitration service provider, JAMS. We affirm.

Defendant Jaime Galvez appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.91, contending that the court erred when it concluded that he did not meet his burden to demonstrate that he was eligible for a resentencing hearing. Finding no error, we affirm.

Defendant filed a petition for resentencing under the Three Strikes Reform Act, which, after an evidentiary hearing, the trial court denied. On appeal, defendant contends that the court abused its discretion “by failing to undertake a particularized assessment of [defendant’s] overall circumstances in concluding [that] he currently pose[d] an unreasonable risk of danger to public safety.” (Formatting omitted.) We affirm.

Ubaldo Mio Gutierrez appealed from superior court orders (1) denying his petition for resentencing under section 1170.95 and an amendment to Senate Bill No. 620 (Stats. 2017, ch. 682) (the petition for resentencing), and (2) denying a petition for writ of habeas corpus. In August 2020, we affirmed the order denying the petition for resentencing and dismissed the appeal from the habeas petition. (People v. Gutierrez (Aug. 27, 2020, B306036) [nonpub. opn.] (Gutierrez II).)
The Supreme Court granted review and, in January 2022, transferred the matter to this court with directions to reconsider the cause in light of its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the enactment of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775).
For the reasons set forth below, we again affirm the order denying the petition for resentencing and dismiss the appeal from the habeas petition.

Defendant and appellant Lexington National Insurance Company appeals from the denial of its motion to vacate forfeiture and exonerate its bond.
We affirm.

Defendant and appellant Juan Carlos Galarza challenges the trial court’s denial of his petitions under Penal Code section 1170.95 for resentencing on his murder and attempted murder convictions. We previously affirmed, but the Supreme Court ordered us to vacate our opinion and reconsider the case in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the standards for adjudicating a petition for resentencing, and Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775), which expanded section 1170.95 to allow for resentencing on attempted murder convictions.
We once again affirm because the record of Galarza’s conviction shows that the jury found Galarza acted with malice in the murder and the attempted murder. Thus, he remains ineligible for resentencing as a matter of law, and any errors in denying his petitions were harmless.

Defendant and appellant Jordan Lopez challenges the trial court’s denial of his petition for resentencing under Penal Code section 1170.95. The trial court found that Lopez was ineligible for relief because he pleaded no contest to attempted murder, and the statute did not allow resentencing for that crime. We previously affirmed, but the Supreme Court ordered us to vacate our opinion and reconsider the case in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775), which expanded eligibility for resentencing under section 1170.95 to attempted murder, and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the standards for adjudicating a petition for resentencing. In light of these new authorities, we remand the case to the trial court with directions to reconsider the petition.