CA Unpub Decisions

M.O. (father) appeals from the dispositional orders denying him reunification services for his son, the minor A.J., based on a finding by clear and convincing evidence that A.J. suffered severe physical abuse while in father’s care. (Welf. & Inst. Code, § 361.5, subd. (b)(6).) Finding no error, we affirm.

Defendant Tyler Shawn Hoffman appeals from a judgment after a jury found him guilty of carrying a concealed, loaded, and unregistered firearm in a vehicle (Pen. Code, § 25400, subds. (a)(1) & (c)(6)—count one) and carrying a loaded and unregistered firearm in public (§ 25850, subds. (a) & (c)(6)—count two), and found true gang enhancements (§ 186.22, subd. (b)(1)) as to both counts. On appeal, defendant contends the jury’s true findings on the gang enhancements must be reversed because the trial court erroneously admitted “inflammatory” rap lyrics that were found in his jail cell. Alternatively, he contends the gang enhancements must be vacated and the matter remanded for retrial due to statutory changes made by recently enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) (Stats. 2021, ch. 699, § 3).

This case comes to us for the fourth time on appeal. Defendant Denisho Demmetrius Collins appeals the trial court’s order denying his motion to strike a 20-year firearm enhancement (Pen. Code, § 12022.53, subd. (c)) after this court remanded the matter for resentencing on the enhancement following the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) while defendant’s second appeal was pending. He argues the trial court abused its discretion in denying his motion to strike the enhancement because the court based its decision on an erroneous factual finding that he acted as a leader during the gang shooting that resulted in an accomplice’s death. He further contends the shooting was not more dangerous than other gang shootings, and that the trial court failed to properly consider defendant’s crime-producing background in mitigation.

Defendant David William Bilderback pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and admitted he personally used a firearm (§ 12022.5, subd. (a)). Defendant then appealed, asserting the trial court abused its discretion in imposing the upper term sentence on the manslaughter count. After the parties’ initial briefing was complete, we granted defendant’s request for supplemental briefing on the effect, if any, of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill No. 567) on his case.
Defendant’s initial contention was barred by his waiver of his right to appeal and his failure to obtain a certificate of probable cause, and, in any event, is ultimately rendered moot. As we shall explain, despite his waiver of his right to appeal and failure to obtain a certificate of probable cause, defendant’s contentions concerning Senate Bill No. 567 are properly before us.

Defendant Jesse Cornejo appeals from the trial court’s order denying his petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant argues the trial court incorrectly concluded he was ineligible for relief under former section 1170.95. In supplemental briefing, defendant expands upon this argument, contending that the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) requires reversal and remand for a hearing on whether he has made a prima facie case under amended section 1170.95, subdivision (c). We agree with the trial court that defendant was ineligible for relief as a matter of law. Under these circumstances, we conclude the failure to hold a hearing prior to denying defendant’s petition, as now required by the passage of Senate Bill 775, is harmless as a matter of law. Accordingly, we affirm the trial court’s order.

Defendant Andy Otis Trotter appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95, arguing the trial court erred in finding he was ineligible for relief as a matter of law, based on his attempted murder convictions. (Statutory section citations that follow are to the Penal Code.) Defendant also contends we must remand the matter to give the trial court the opportunity to strike the two 20-year firearm enhancements. In our original unpublished decision, we disagreed and affirmed the trial court’s order. Defendant appealed this denial to the California Supreme Court, which granted his petition for review, and on January 26, 2022, transferred the matter back to us with directions to vacate the previous decision and reconsider the matter “in light of Senate Bill No. 775 (Stats. 2021, ch. 551) [(Senate Bill 775)]and People v. Lewis (2021) 11 Cal.5th 952 [(Lewis)].”

According to Aesop, the Greek storyteller, “uninvited guests seldom meet a welcome.” And that was the case when defendants Elijah Rasean Fields and Corey Andre Carmicle arrived at a Halloween costume party hosted by Patrick Razaghzadeh and his roommates. One invitee brought along a cousin who was a member of the Monk Mob gang, who in turn brought along some fellow gang members, including Fields and Carmicle. The mix of the uninvited with the invited proved to be combustible and ultimately, deadly, because Carmicle brought a gun to the festivities. He passed it to Fields who, resisting an effort by Razaghzadeh to oust the uninvited guests began firing, with deadly consequences, hitting five people including Razaghzadeh who died.

Derek Connell was convicted following a month-long jury trial of the first degree murder of his stepfather, Christopher Higginbotham, and the second degree murder of his mother, Kim Higginbotham. The jury also found true specially alleged firearm-use enhancements as to both offenses and the multiple-murder special circumstance. The trial court sentenced Connell to life without parole plus three consecutive indeterminate state prison terms of 25 years to life.
On appeal Connell contends there was insufficient evidence identifying him as Kim’s killer and the prosecutor committed prejudicial misconduct by misstating the law regarding the burden of proof during closing argument. Connell argues in the alternative his sentence for second degree murder must be corrected because life without parole is not an authorized sentence notwithstanding the multiple-murder special-circumstance finding.

Casey T. and John R., parents of seven-year-old T.R., five-year-old L.R. and two-year-old John R. III, appeal the juvenile court’s order terminating their parental rights under Welfare and Institutions Code section 366.26. The sole issue on appeal is whether the juvenile court and the Los Angeles County Department of Children and Family Services (Department) complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. We agree with Casey and John that the Department failed to comply with its affirmative and continuing duty to inquire whether the children were Indian children and the juvenile court erred by failing to ensure an appropriate inquiry had been conducted. We further conclude the error was prejudicial.

Father appeals from the juvenile court’s orders (1) sustaining a Welfare and Institutions Code section 342 supplemental petition as to his twelve-year-old son, (2) removing son from his custody, and (3) terminating jurisdiction with a family law order granting joint legal custody, sole physical custody to mother, and unmonitored visits to father.
Father engaged in criminal activities throughout the dependency case, was often absent from the home, thrusted childcare responsibilities on other family members without notice, and was incarcerated at the time jurisdiction was terminated. Father does not dispute these facts but argues he was able to provide supervision and protection for son, and son was not at substantial risk of serious physical harm in his care. Accordingly, he asserts insufficient evidence supports the jurisdiction order and he should have been granted joint physical custody. We affirm.

Alain Alvarez appeals the judgment entered after a jury convicted him of inflicting corporal injury on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)). The trial court granted appellant’s request to reduce the charge to a misdemeanor and placed him on three years of probation with terms and conditions including that he serve 90 days in county jail. Appellant raises claims of evidentiary, prosecutorial, and cumulative error. We affirm.

After Tamara J. failed to resolve the issues that led the juvenile court to assume dependency jurisdiction over her daughter, now 14-year-old S.J., the juvenile court terminated Tamara’s family reunification services, appointed a legal guardian for S.J. and terminated dependency jurisdiction. Eighteen months later Tamara petitioned the court under Welfare and Institutions Code section 388 to reinstate family reunification services with the ultimate goal of returning S.J. to Tamara’s custody. The court denied the petition, concluding Tamara had not demonstrated modification of the court’s prior order was in S.J.’s best interests. We affirm.

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.

Appellant M.C. (father) appeals an exit order issued under Welfare and Institutions Code section 362.4 upon termination of the juvenile court’s jurisdiction over father’s son, M. Father contends the juvenile court erred by ordering that he and M. complete conjoint therapy without providing a means for completing that therapy. Respondent Los Angeles Department of Children and Family Services (DCFS) disagrees with father’s interpretation of the order, asserting that the court ordered only monitored visitation and cited father’s failure to complete conjoint therapy as the reason the visits would remain monitored, but did not order therapy at all. We agree with DCFS’s interpretation of the order and affirm.