CA Unpub Decisions

While the statute itself looks innocent enough, the Byzantine complexity of the application of Code of Civil Procedure section 425.16 (the anti-SLAPP statute) has vexed our profession throughout the three decades since its enactment. This case requires us to address an issue that has contributed greatly to that vexation: When does a cause of action arise from constitutionally protected activity?
Answering this question can become an involute process, particularly in cases in which a cause of action is supported by so-called “mixed” allegations; both protected and unprotected conduct. Out of which type of conduct does the cause of action arise? In Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), the California Supreme Court provided insight on how courts should answer this question: we should sift out allegations of unprotected activity and concentrate our attention on whether the allegations of protected activity can provide a basis for liability. (Id. at p. 393.)

Appellant M.M. (mother) is the mother of I.M., Mo.M., and Mi.M. (the children), who are the subjects of a dependency case. Mother challenges the juvenile court’s orders terminating her parental rights at a Welfare and Institutions Code section 366.26 hearing. Mother’s sole claim is that the juvenile court and the Stanislaus County Community Services Agency (agency) failed to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C., § 1901 et seq. (ICWA)). We affirm.

Defendant Dejarrne Joden Smith was convicted of several crimes involving his attack and rape of a woman who was walking home in the early morning. On appeal, we remanded for resentencing in light of Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393). Defendant now appeals from the resentencing, contending we should again remand for resentencing in light of more new legislation, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). The People concede and we agree. Thus, we vacate the sentence and remand for resentencing. In all other respects, we affirm.

Defendant Gabriel Murillo contends on appeal that his $250 report fee must be vacated because Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1869) repealed Penal Code section 1203.1b and must be applied to his case. We vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b. We affirm in all other respects.

In 2018, a jury convicted appellant Marshall Scott Minnich of two counts of second degree burglary (Pen. Code, § 459; counts I & IV) and one count of robbery (§ 211; count II). In count II (robbery), the trial court sentenced appellant to prison for three years, which was doubled because of a prior strike conviction. In count IV (burglary), the court imposed a consecutive term of one year four months. A five-year enhancement under section 667, subdivision (a), was imposed for a prior serious felony conviction. The sentence on the other burglary conviction was stayed. Appellant received an aggregate prison term of 12 years four months.
In 2020, this court issued an unpublished opinion in which we rejected appellant’s claim that insufficient evidence supported his robbery conviction. However, we agreed with the parties that resentencing was required following Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).

Defendant Jose Antonio Montanez was convicted of possession of a firearm by a felon, possession of ammunition by a felon, and carrying a concealed firearm in a vehicle. On appeal, he contends that the search that led to the discovery of the firearm and ammunition was unlawful because it was preceded by a detention without reasonable suspicion of wrongdoing. The People disagree, arguing that defendant consensually interacted with the officer and the officer searched defendant only after learning he was on parole. In the alternative, they argue that even assuming the officer unlawfully detained defendant, the attenuation doctrine applies and the evidence need not have been excluded. We affirm.

In 1991, petitioner William Blalock pled guilty to the second degree murder of Gerald Smart. (Pen. Code, § 187.) For this offense, the trial court sentenced petitioner to a term of 15 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court denied the petition on the ground petitioner was not convicted of felony murder or murder under a natural and probable consequences theory, and thus was ineligible for resentencing.
On appeal, petitioner asserts he established a prima facie claim for resentencing relief and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. We agree with petitioner and reverse.

In 2014, a jury convicted petitioner Armando Jacobo Gonzalez on two counts of first degree murder (Pen. Code, § 187, subd. (a)), with a multiple-murder special circumstance (§ 190.2, subd. (a)(3)), and a special circumstance that petitioner intentionally killed the victim while an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). (People v. Anguiano et al. (May 25, 2017, F069881) [nonpub. opn.] (Anguiano).) For these offenses, petitioner was sentenced to two consecutive terms of life without the possibility of parole.
In 2019, petitioner filed a petition for resentencing on his murder convictions pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner is ineligible for relief.

In 2018, petitioner Brian Storment pled no contest to the second degree murder of 14-year-old J.V. (Pen. Code, § 187, subd. (a).) The trial court sentenced petitioner to a term of 15 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition on the ground petitioner was not convicted of felony murder or murder under a natural and probable consequences theory, and thus was ineligible for resentencing.
On appeal, petitioner asserts he established a prima facie claim for resentencing and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. We agree and reverse.

Defendant Miguel Angel Quintero and two codefendants, Jesus Castillo and Roberto Estrada, were charged with several crimes in connection with a robbery and shooting at an ATM. The information charged defendant with attempted murder (count 1; Pen. Code, §§ 664, 187, subd. (a)), carjacking (count 2; § 215, subd. (a)), first degree robbery (count 3; § 211), assault with a firearm (count 4; § 245, subd. (a)(2)), and assault with a deadly weapon (i.e., a knife) (count 5; § 245, subd. (a)(1).) The information also alleged that all five crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)– (C).) Finally, the information alleged that with respect to counts 1, 2, and 3, a principal (i.e., Jesus Castillo) intentionally discharged a firearm proximately causing great bodily injury to the victim, Jeffrey Gould (referred to in the complaint as “J.G.”) (§ 12022.53, subds. (c)–(e)(1).)

In 2011, a first amended information charged defendant with murder under Penal Code section 187, subdivision (a) (count 1), and gross vehicular manslaughter while intoxicated under section Penal Code 191.5, subdivision (a) (count 2). As to count 2, the information alleged that defendant had suffered three prior convictions for violating the Vehicle Code as follows: a 2004 conviction for violating Vehicle Code section 23152, subdivision (a); a 2007 conviction for violating Vehicle Code section 23152, subdivision (b); and a 2007 conviction for violating Vehicle code section 23152, subdivision (b).
On October 12, 2011, a jury convicted defendant on both counts 1 and 2. As to count 2, the jury found the special circumstance true that defendant had suffered the following prior convictions:

Defendant and appellant A.T. (minor) appeals the Riverside County Juvenile Court’s denial of his petition made pursuant to section 1170.95 of the Penal Code. We affirm.

After an evidentiary hearing, the trial court denied Shane Allen Major’s petition to vacate his first degree murder conviction under Penal Code section 1170.95. The court found, beyond a reasonable doubt, that although Major was not the actual killer, he was a major participant in the underlying robbery and acted with reckless indifference to human life. On appeal, Major argues there was insufficient evidence to support this conclusion. We disagree and affirm.

Plaintiff and respondent Corina Young (plaintiff) filed two civil complaints alleging various acts of mismanagement and self-dealing in the operation of a cannabis dispensary known as Southern California Organic Treatment (SCOT). The first complaint (derivative action) was filed in plaintiff’s representative capacity as a shareholder of SCOT and named David Gash (Gash), Quorum Green Industries, LLC (Quorum), two additional individuals, and five additional limited liability companies as defendants. The second complaint (contract action) alleged that Gash and Quorum’s acts and omissions also constituted a breach of the stock purchase agreement in which plaintiff initially purchased 10 percent of the shares in SCOT.
Defendants and appellants Gash and Quorum (collectively, defendants) moved to compel arbitration of all the claims alleged in the contract action.