CA Unpub Decisions

Defendants and respondents purchased at a trustee’s sale real property that plaintiff and appellant Jose Solano previously owned along with his wife (who is not a party to the lawsuit). By means of this lawsuit, Solano, in propria persona, sought to regain title to the property and requested monetary damages. The trial court dismissed Solano’s lawsuit following its sustaining of respondents’ demurrer to some of the causes of action in the operative complaint and granting of a motion for judgment on the pleadings on the remaining causes of action.
Solano, in propria persona, appeals from the judgment of dismissal. On appeal, Solano fails to identify the allegations in his operative complaint that he claims were sufficient to state a cause of action. As set forth below, it was his burden on appeal to do so. His failure to identify allegations in the operative complaint to support each element of his causes of action is fatal to his appeal. Accordingly, we affirm the judgment.

In 1992, defendant Porfirio Lamarque and codefendant Marvin Calderon were charged with murder. The killing stemmed from a gang confrontation. Calderon killed the victim; Lamarque drove. Lamarque pled guilty to second degree murder and received a prison sentence of 15 years to life. In 2019, after the Legislature amended the law of accomplice liability for murder, Lamarque petitioned for recall and resentencing under Penal Code section 1170.95. The trial court appointed counsel, received briefing, and held a contested hearing, then denied the petition. On appeal, Lamarque contends he was not ineligible for relief as a matter of law because he could have been tried as an aider and abettor under a natural and probable consequences theory, and the court’s contrary conclusion constituted improper factfinding at the prima facie review stage. We agree. We therefore reverse and remand with directions.

Defendant Eric Darrell Schwenk pleaded guilty to one count of lewd acts on a child, with an enhancement for a previous conviction of the same offense. This plea was entered after more than a decade of litigation, which included a jury trial, an appeal, and a successful federal petition for habeas corpus. After and in accordance with the plea, the trial court sentenced Schwenk to 13 years in state prison, and it then released him for time served. As part of its sentence, the court reimposed a previously levied and paid $6,000 restitution fine, giving Schwenk credit for the earlier payment. On appeal, Schwenk argues that the court erred in reimposing the fine because no substantial evidence supported the court’s implied finding that he was able to pay it. We affirm.

A jury convicted Marcos Rey Smith-Pequeno of second degree robbery, and the trial court placed him on probation with various conditions. On appeal, Smith-Pequeno contends the court erred by declining to exclude evidence as a sanction for the “prosecutor’s violation of the discovery statutes.” Smith-Pequeno also challenges the validity of one of the probation conditions. We affirm.

A jury found Normandie Santos Burgos guilty of committing multiple sex offenses against two minors. He contends that his attorney violated his Sixth Amendment rights by conceding his guilt for some of the offenses over his objection. In addition, he asserts that the convictions on several counts cannot stand because they were lesser included offenses of other counts for which he was also convicted. We disagree with his Sixth Amendment argument, but we find merit in his point about the lesser included offenses. We reverse the convictions on the relevant counts but otherwise affirm.

Defendants Xavier Ysauro Medrano (also known as Xavier Ysidro Medrano), Trinidad Valdez Martinez, and Rey Robert Avellanoza were found guilty after a jury trial of attempted murder, burglary, assault with a firearm, and participation in a criminal street gang. Avellanoza was found guilty of shooting into an inhabited dwelling; Medrano and Martinez were acquitted of this charge. Enhancements alleging premeditation and deliberation, use of firearms, causing great bodily injury, and committing the offenses for a criminal street gang were also found true by the jury. Each defendant received a substantial state prison sentence, including an indeterminate sentence for the attempted first degree murder conviction. The defendants were only partially successful in their appeal of the judgment.
On February 1, 2017, the California Supreme Court granted Medrano’s and Martinez’s petitions for review pending consideration and disposition of People v. Mateo, S232674.

Defendants Xavier Ysauro Medrano (also known as Xavier Ysidro Medrano), Trinidad Valdez Martinez, and Rey Robert Avellanoza were found guilty after a jury trial of attempted murder, burglary, assault with a firearm, and participation in a criminal street gang. Avellanoza was found guilty of shooting into an inhabited dwelling; Medrano and Martinez were acquitted of this charge. Enhancements alleging premeditation and deliberation, use of firearms, causing great bodily injury, and committing the offenses for a criminal street gang were also found true by the jury. Each defendant received a substantial state prison sentence, including an indeterminate sentence for the attempted first degree murder conviction. The defendants were only partially successful in their appeal of the judgment.
On February 1, 2017, the California Supreme Court granted Medrano’s and Martinez’s petitions for review pending consideration and disposition of People v. Mateo, S232674.

Defendant and appellant Tommy Mackey appeals the San Bernardino County Superior Court’s summary denial of his petition made pursuant to section 1170.95 of the Penal Code seeking resentencing of convictions on three counts of attempted murder of a peace officer in violation of subdivision (e) of section 664 and section 187. We affirm.

A jury found defendant and appellant Thomas Sloan guilty of one count of taking or driving a vehicle without the owner’s consent. (Veh. Code, § 10851, count 1.) In a bifurcated proceeding, a trial court found true that defendant had a prior strike conviction for robbery. (Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (i).) The court sentenced him to 32 months in state prison.
On appeal, defendant contends the evidence was insufficient to support his conviction in count 1. We disagree and affirm.

Defendant Carline Balbuena appeals from the trial court’s denial of the request to recall and resentence her contained in a letter from the Secretary of the California Department of Corrections and Rehabilitations (Secretary). Defendant contends she was denied her constitutional right to be present at the recall hearing, reversal and remand is required under Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540), and the trial court abused its discretion in declining to recall and resentence. The Attorney General agrees with the second claim--that the case should be remanded for reconsideration in light of the new legislation--and does not respond to the remaining claims. Defendant concedes that if this court orders reversal and remand under the now-current version of the applicable law, we need not reach her remaining claims.
We reverse the order and remand for rehearing; in light of this conclusion, we need not and do not reach the remaining contentions on appeal.

Defendant Corei Schroeder appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95. He contends he made a prima facie showing he was eligible for relief, and therefore, the trial court should have issued an order to show cause and held an evidentiary hearing. The People agree. We reverse and remand for further proceedings.

Defendant S. T. appeals a civil harassment restraining order issued against her pursuant to Code of Civil Procedure section 527.6. The order prohibits defendant from harassing or contacting plaintiff M. M. Defendant appears to argue: (1) there was insufficient evidence to establish the necessary elements under section 527.6; and (2) the trial court erred in not allowing defendant to present evidence during the hearing and failing to consider the evidence submitted prior to the hearing. Because the record on appeal does not include plaintiff’s request for a restraining order, the exhibits in support of the request, a reporter’s transcript or settled statement of the restraining order hearing, or a minute order of the hearing, we are unable to evaluate defendant’s claims and must presume the trial court’s findings are correct. Therefore, we affirm.

A jury found defendant Lawrence Batiste guilty of attempted murder, assault with a firearm, and being a felon in possession of a weapon. The jury found true several firearm and great bodily injury allegations, and also found true the allegation that the attempted murder was committed with premeditation and deliberation. The trial court sentenced defendant to an aggregate term of 57 years to life, with additional terms imposed and stayed for the assault and weapon possession convictions.
Defendant claims his sentence includes a life term enhancement for committing the offense with premeditation and deliberation. Based on that presumption, he argues his sentence is unauthorized because he was not provided sufficient notice of the allegation and counsel was ineffective for failing to object to the sentence enhancement.

After a hearing before an administrative law judge (ALJ) and review by appellant
California Gambling Control Commission (Commission), the Commission revoked and refused to renew the gambling license of cross-appellant Eric G. Swallow. The Commission also imposed a $13,672,000 monetary penalty and $127,880 in costs against Swallow. Swallow petitioned the trial court for a writ of mandate, challenging the revocation and nonrenewal of his gambling license, the amount of the monetary penalty, and the costs. The trial court granted Swallow’s petition in part and denied it in part. It concluded the Commission did not violate Swallow’s due process rights when it revoked and refused to renew Swallow’s gambling license, except that the Commission may have relied on unproven misconduct. The trial court therefore remanded to the Commission “to ensure that Swallow is not disciplined based on misconduct that was not proven.”