CA Unpub Decisions

This case requires us to decide the retroactive reach of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950), which became effective on January 1, 2021, and which amended Penal Code section 1203.1, subdivision (a), by limiting probation terms for most felony offenses to two years.
We are presented with conflicting interpretations of Assembly Bill 1950 by defendant Daniel Pimentel, who claims he must be given the full constitutional benefit of the amendment because his case is nonfinal, and by the Attorney General, who concedes that the amendment has retroactive impact, but nevertheless contends that Pimentel’s time on probation has not yet expired because it had been repeatedly tolled by section 1203.2, and was thus in a revoked status on January 1, 2021, when the new statute went into effect.

Oscar Rodolfo Barrascout appeals a superior court order denying his petition to be eligible for a youth offender parole hearing. (Pen. Code, § 3051.) In 1990, he was convicted of first degree murder (§ 187), robbery (§ 211), and burglary (§ 459), and sentenced to life without the possibility of parole (LWOP). When he committed these crimes, he was 22 years of age. We conclude the statutory provision that disqualifies Barrascout from eligibility for a youth offender parole hearing (§ 3051, subd. (h)) because of his LWOP sentence does not violate equal protection of the laws. We affirm

Appellant Keith Anselm Edwards appealed following the trial court’s denial of a resentencing motion under Penal Code section 1170.91 and a petition for writ of habeas corpus. Appellant’s appointed counsel filed a brief on appeal raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Because neither appellant nor his counsel has raised a cognizable claim of error, we dismiss the appeal as abandoned.

Maryam Ghukasian sued Aegis Security Insurance Company (Aegis) for breach of contract, insurance bad faith, and declaratory relief after Aegis denied her tender of a lawsuit brought against her by her neighbors. The underlying lawsuit alleged Ghukasian graded land and cut down trees on her neighbors’ property. The trial court granted Aegis’s motion for summary judgment, holding Aegis had no duty to defend because Ghukasian’s homeowner’s policy did not provide coverage for nonaccidental occurrences. It explained that intentionally cutting trees on the neighbors’ land, even if Ghukasian acted on the good faith but mistaken belief that the trees were on her land, is not an accident for purposes of insurance coverage.

California Commerce Club, Inc. (Commerce Club) appeals from an order denying its motion to compel arbitration of a dispute with its former employee, Peter Quach, respondent here.
Quach argued below that Commerce Club had waived its right to arbitrate by waiting 13 months after the filing of the lawsuit to move to compel arbitration, and by engaging in extensive discovery during that period. Quach claimed the delay prejudiced him by forcing him to expend time and money preparing for litigation. The trial court agreed, finding Commerce Club had waived the right to arbitrate by propounding a “large amount of written discovery,” taking Quach’s deposition, and expending “significant time meeting and conferring.”
We disagree with the trial court. Our Supreme Court has made clear that participation in litigation alone cannot support a finding of waiver, and fees and costs incurred in litigation will not establish prejudice on the part of the party resisting arbitration.

Plaintiff Peter Kleidman, in propria persona, appeals from the trial court’s order awarding defendant RFF Family Partnership, LP attorney fees incurred postjudgment and on appeal pursuant to Civil Code section 1717. Plaintiff also challenges the court’s issuance of a protective order that defendant need not respond to plaintiff’s discovery request. We affirm.

This case involves charges against defendants and appellants Brian Boseman Corder, Fredericka Carmouche, and Stephon Crutchfield, based on an attack on Corder’s wife, GiGi. In count 1, Corder and Carmouche were found guilty of conspiracy to commit murder. (Pen. Code, § 182, subd. (a)(1).) All three defendants were found guilty of willful, deliberate, and premeditated attempted murder in count 2 (§§ 187, subd. (a), 664, subd. (a)), torture in count 4 (§ 206), and mayhem in count 5 (§ 205). Carmouche and Crutchfield were convicted of burglary in count 3. (§ 459.) The jury also found true the allegations that Carmouche and Crutchfield personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), and that Carmouche personally used dangerous and deadly weapons within the meaning of section 12022, subdivision (b)(1), in counts 2 and 3.

Defendant Nathan Angelo McGill appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95. McGill’s court-appointed counsel filed a brief that raised no legal issues and asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel represented that she advised McGill of his right to file a supplemental brief within 30 days and to request that the court relieve his counsel. McGill did not file a supplemental brief.
Several cases have recognized that Wende procedures are not constitutionally required in appeals other than a criminal defendant’s first appeal of right from a conviction, and thus conclude that Wende review is not required for the appeal of postconviction orders denying sentencing relief under section 1170.95. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, 1034–1035, review granted Oct. 14, 2020, S264278.)

In June 2021, the juvenile court exercised dependency jurisdiction over 20-month-old M.B., removed him from the home of his mother, and placed him with his noncustodial father under a plan of family maintenance. On appeal, M.B.’s mother, E.B., contends that there is insufficient evidence to justify removing M.B. from her care. (Welf. & Inst. Code, § 361, subd. (c); statutory references are to this code.) We affirm the order.

Defendant Andre Vincent Johnson, Jr. appeals a judgment entered upon a jury verdict finding him guilty of second degree robbery (Pen. Code, § 211) and finding true an allegation that he personally used a deadly and dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). His sole contention on appeal is that the trial court abused its discretion and deprived him of due process when it imposed a $300 restitution fine in violation of the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the judgment.

Olivia Nguyen (Olivia) and An Nguyen (An), defendants in this civil action, were married for at least 10 years. Olivia filed a petition for dissolution in or about October 2001 in the Superior Court, County of Orange (the Olivia/An proceeding). A judgment of dissolution on reserved issues was entered in that proceeding on July 18, 2007.
On a date not disclosed in the record, An married plaintiff Thuy Pham (Pham). In or about September 2007, An filed a dissolution proceeding relative to that second marriage in the Superior Court, County of Orange. A judgment of dissolution was filed in November 2007, but was later set aside, except as to status. In 2010, Pham filed a second dissolution proceeding involving An in the Superior Court, County of Santa Clara (the Pham/An proceeding). The present civil action, also in the Superior Court, County of Santa Clara, was filed by Pham against An and Olivia, and relates to an alleged fraudulent transfer of property in 2014.

Defendant Maria Isabel Rocha appeals from an order denying her petition for resentencing under Penal Code section 1170.95. The trial court denied the petition because, through a guilty plea, appellant was convicted of voluntary manslaughter, not the initially charged crime of murder. At the time of the denial, the law overwhelmingly supported the trial court’s conclusion. However, during the pendency of this appeal, the Legislature passed Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which makes clear that persons who plead guilty to manslaughter may be eligible for resentencing. As a result of the legislative change which recently took effect, the Attorney General concedes, and we agree, the order must be reversed and the matter remanded to the trial court for further proceedings consistent with amended section 1170.95.

Defendants Braden and Stephanie Russell (the Russells) were guarantors on a lease between plaintiff Business Properties #6 (Business Properties) and defendant Umana Academy of Fine Arts, Inc. (Umana). Umana went out of business and defaulted on the lease. Business Properties sued Umana and four guarantors for unpaid rent. The jury returned a verdict in favor of Business Properties against all five defendants in the amount of $543,979. Only the Russells appealed.
The Russells contend Business Properties did not have standing to pursue this litigation. Their standing argument turns on a myopic reading of a sale agreement between Business Properties and a buyer of the shopping center that encompassed the leased premises. In the sale agreement, Business Properties transferred various intangible properties to the buyer, including guarantees associated with the shopping center.

In 1998, defendant Thomas Lee Spiller was sentenced to 25 years to life pursuant to the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). In 2013, he filed a petition to recall his sentence pursuant to the Three Strikes Reform Act of 2012 (the Act) (§ 1170.126, subd. (b)). The trial court denied his petition. We reversed and remanded. The trial court again denied defendant’s petition. We reversed and remanded a second time. The trial court again denied defendant’s petition, finding that defendant’s release “would result in [an] unreasonable risk of danger to public safety.” (Capitalization omitted.) Now, in defendant’s third appeal, defendant contends the trial court abused its discretion in denying the petition. The People disagree. We affirm.