CA Unpub Decisions

Eighteen months after declaring Ebony B. and Nila B. dependent children of the juvenile court, the court terminated family reunification services for their mother, Rosa H. Prior to the selection and implementation hearing under Welfare and Institutions Code section 366.26, Rosa filed a petition under section 388 for an order returning Ebony and Nila to her care or, in the alternative, reinstating family reunification services. Rosa appeals from the order denying her petition. We affirm.

Dynastion Energy, S.R.O. (Dynastion) appeals from an order sustaining, without leave to amend, the demurrer of defendants Lewis, Brisbois, Bisgaard & Smith (Lewis, Brisbois) and John P. Yung (Yung), a Lewis, Brisbois partner, to Dynastion’s complaint for aiding and abetting fraud. The complaint alleged Dynastion invested in a joint venture with Yung’s client. Dynastion also alleged Yung knew his client had failed to perform its obligations in a previous joint venture involving the same business enterprise, but Yung failed to disclose this information to Dynastion. In sustaining the demurrer, the trial court held the agent’s immunity rule, under which duly acting agents cannot be held liable for conspiring with their own principals, barred Dynastion’s claim. We reverse, concluding that an exception to the rule applies where, as here, the complaint alleges the attorney was aware of the client’s previous failure to perform in a similar joint venture.

In 2007, Lap Phuoc Tran was facing up to seven years in prison, pleaded guilty under a negotiated plea agreement and received a prison term of three years. Before his plea, he signed an advisement of rights, waiver and plea form. He acknowledged that if he was not a citizen of the United States, his plea would result in deportation, exclusion from admission or reentry, and denial of naturalization or amnesty in the United States.
Thirteen years later, he moved to vacate his conviction under Penal Code sections 1016.5 and 1473.7, subdivision (a)(1), arguing that his advisement was inadequate and that had he understood he would be deported, he would not have pleaded guilty. The trial court denied his motion.
We affirm.

Irvin Randolph Shaw appeals from the superior court’s order denying his petition under Penal Code section 1170.95. In our prior opinion we affirmed the superior court’s ruling, after which Shaw successfully petitioned for review by the Supreme Court. The Supreme Court transferred the case to us with directions to vacate our prior opinion and reconsider our decision in light of Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551, § 2) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The People now concede, and we agree, the superior court erred in summarily denying Shaw’s petition without appointing counsel and receiving briefing. Because we also agree with Shaw the error was not harmless, we vacate our prior opinion, reverse the superior court’s order denying Shaw’s petition, and direct the trial court to appoint counsel for Shaw, issue an order to show cause, and conduct further proceedings under section 1170.95, subdivision (d).

Defendants break into a house they believe is uninhabited. While ransacking the house, they find its fearful resident hiding in a closet. We draw upon our Supreme Court’s holding in People v. Anderson (2011) 51 Cal.4th 989, 991-992, “We hold here that the intent element of robbery does not include an intent to apply force against the victim or to cause the victim to feel fear. It is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal, even if the defendant did not also intend for the victim to experience force or fear.”
Here we conclude the defendants have committed a robbery even though they were unaware of the victim’s presence.
Davion Dwayne Jones appeals a judgment following conviction of home invasion robbery, residential burglary (two counts), street terrorism, carjacking, giving false information to a police officer, and unlawful driving.

A jury convicted defendant and appellant Mikell Buchanan of the first degree premeditated murder of Davion Gregory (Pen. Code, § 187, subd. (a) [count 3]), five counts of premeditated attempted murder (§§ 187/664 [counts 5–9]), one count of shooting from a motor vehicle (§ 26100, subd. (c) [count 4]), and five counts of possession of a firearm by a felon (§ 29800, subd. (a)(1) [counts 28–32]). The jury found true the special circumstance allegations that the murder was accomplished by lying in wait (§ 190.2, subd. (a)(15)) and shooting from a motor vehicle (§ 190.2, subd. (a)(21)), and that Buchanan intentionally killed Gregory while Buchanan was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)).

This action arose from the production and airing of the Netflix series Afflicted. Seven people depicted in that series sued defendants for defamation, invasion of privacy (false light), and fraud. Defendants moved to strike the complaint under the anti-SLAPP statute, but the trial court denied the motion.
On appeal, defendants contend plaintiffs failed to make a prima facie showing sufficient to overcome the consent/release defenses to the defamation and false light claims. Defendants also contend plaintiffs failed to demonstrate that their defamation, false light, and fraud claims had minimal merit. We affirm.

When defendant and appellant Armando Pineda, Jr.’s (defendant’s) previous appeal of his conviction for a murder committed at age 17 was before this court, we conditionally reversed the judgment and remanded with directions to hold a new hearing to decide whether the juvenile court would still transfer defendant to a court of criminal jurisdiction after changes in law made by the Public Safety and Rehabilitation Act of 2016 (Proposition 57). (People v. Pineda (2017) 14 Cal.App.5th 469, 483-484 (Pineda I).) That was done, and the juvenile court found it would still order transfer. Before the criminal judgment against defendant was reinstated, however, the court of criminal jurisdiction considered and rejected defendant’s request that the court exercise discretion, given by another intervening change in the law, to strike a discharge-of-a-firearm-causing-death enhancement (Pen. Code, § 12022.53, subd. (d)) it previously imposed.

Ramon Pena Paniague was convicted of felony oral copulation of an unconscious person and misdemeanor sexual battery after he entered his sleeping 19-year-old stepdaughter’s bedroom and sexually assaulted her. He contends the trial court erred when it failed to instruct the jury on mistake of fact as to the oral copulation count, as to Paniague’s good character for appropriate sexual behavior, and on attempted oral copulation of an unconscious person as a lesser offense of the oral copulation count. His contentions are meritless, so we affirm.

Eddie Cole appeals from the trial court’s order denying his petitions for writ of coram nobis. Cole’s appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Our independent review of the record reveals no arguable issues, and we affirm.

Two parents whose parental rights were terminated prior to the Supreme Court’s recent decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) contend that the dependency court failed to consider the beneficial relationship exception to the statutory preference for adoption in the manner required by Caden C. Although we have found it necessary to remand other cases for reconsideration in light of Caden C., the child in this case was removed from the care of her biological parents within days of her birth, so that she had little opportunity to develop a meaningful bond with them. In determining that the infant’s interest in permanency and stability outweighed any benefit of retaining a relationship with her birth parents, the court considered the appropriate factors and none proscribed by Caden C. Therefore, remand is unnecessary, and the termination order must be affirmed.

In his appeal from the juvenile court’s jurisdictional and dispositional orders, Neil B. (father) raises several claims of error. We affirm.

Defendant John H. Brown appeals an order denying his petition for resentencing under Penal Code section 1170.95. He contends the trial court erred in summarily denying his petition without appointing counsel. We find no error and shall affirm the order.

Defendant is currently serving 18 years to life in prison for aggravated arson (Pen. Code, § 451.5, subd. (a)(2)(A)) , arson of an inhabited dwelling (§ 451, subd. (b)), arson of property (§ 451, subd. (d)), and felony animal cruelty (§ 597, subd. (b)). Pursuant to then existing provisions of Penal Code section 654, the trial court imposed the longest indeterminate sentence available, plus a sentencing enhancement, and stayed the indeterminate sentences on the remaining counts. It also imposed a five-year determinate sentence, to be served consecutively, based on an admitted prior serious felony. Defendant contends his sentence must be vacated and the matter remanded for resentencing due to a newly effective amendment to section 654 made by Assembly Bill 518 (2021-2022 Reg. Sess.). The Attorney General concedes the issue.