CA Unpub Decisions

A jury found Russell O’Bannon, Jr., guilty of offenses arising out of his assault with a deadly weapon of a co-resident at a living facility. O’Bannon appeals the judgment, raising only two sentencing issues, one of which the Attorney General concedes.
A jury found O’Bannon guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with a true finding on a great bodily injury allegation (§ 12022.7, subd. (a)) and one count of mayhem (§ 203) with a true finding on a personal use of a deadly and dangerous weapon allegation (§ 12022, subd. (b)(1)). The trial court thereafter found that O’Bannon had a prior strike that fell within the meaning of the Three Strikes law and constituted a five-year prior under section 667, subdivision (a)(1).
At the sentencing hearing on December 8, 2020, the prosecutor moved to dismiss the prior strike, the great bodily injury enhancement, and the five-year prior, citing a new directive from the District Attorney.

Appellants Zengpeng Feng and his sons Jixiang Feng and Yongxiang Feng sued respondents Lone Oak Fund, LLC (Lone Oak), Qualfax, Inc. (Qualfax), and Royal Business Bank (Royal) (among others), seeking to quiet title to two pieces of real property (one owned by Jixiang and one owned by Yongxiang) or, failing that, to establish an equitable lien against the properties. Appellants alleged that, without their knowledge or consent, both properties were encumbered with deeds of trust in favor of respondents, securing loans respondents made to entities unaffiliated with appellants. Additionally, in 2019, Qualfax initiated a nonjudicial foreclosure sale at which it purchased Jixiang’s property.
In the proceedings below, Lone Oak and Qualfax moved for judgment on the pleadings and Royal demurred. Relying on documents they asked the court to judicially notice, all argued the operative complaint failed to state causes of action against them because they were bona fide encumbrancers.

In 2004, a jury convicted appellant Anthony Brumfield of first degree murder and found true the special circumstance that the murder was intentional and committed by shooting from a motor vehicle at another person outside the vehicle with the intent to inflict death. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21).) The jury found not true the allegation that appellant used and discharged a firearm and that he acted for the benefit of a gang. In 2006, we affirmed the conviction on direct appeal. (People v. Brumfield (Nov. 27, 2006, B182910) [nonpub opn.].)
On December 19, 2019, appellant through counsel filed a section 1170.95 petition for resentencing. He alleged he had been convicted of murder but could not be so convicted today under the statutory changes made by Senate Bill No. 1437.
The trial court denied the petition without issuing an order to show cause.

In 2013, defendant was charged with two counts of first degree murder (Pen. Code, § 187, subd. (a)), one count of attempted murder (§ 187, subd. (a), § 664) and one count of assault with a firearm (§ 245, subd. (a)(2)). Lying in wait, gang and multiple-murder special-circumstance allegations were alleged as to both murder counts (§ 190.2, subd. (a)(3), (15) & (22)). Firearm use and gang allegations were alleged as to all counts (§ 12022.5, § 12022.53, § 186.22).
The charges arose from a series of acts by defendant and his fellow Cypress Park gang member and codefendant, Albert Arzate. Defendant and Arzate ambushed two brothers and their cousin who were walking down the street in a rival gang neighborhood. The two brothers were shot at close range and killed. Their cousin was shot several times and seriously wounded but survived. Defendant and Arzate also assaulted and threatened a fourth victim—the girlfriend of a fellow gang member who was incarcerated at the time.

This is the second appeal arising out of a 2018 settlement agreement resolving a dispute between defendants and appellants Moris Sakhai, Naziar Azadegan, and California Capital Venture, Inc. (collectively, the Sakhais) and plaintiffs Peyman Balakhane, Pejman Balakhane, and L.A. Fashion Hub, Inc. (collectively, the Balakhanes). Under the settlement agreement, entered orally on the record before the trial court, the Sakhais agreed to pay $750,000 to the Balakhanes. Of that amount, the parties agreed that $400,000 would be paid by the Sakhais’ insurers, respondents Nationwide Insurance Company (Nationwide) and Northfield Insurance Company (Northfield), after the Sakhais executed a liability release. Counsel for the insurers agreed to these settlement terms on the record. The court retained jurisdiction to enforce the settlement agreement under Code of Civil Procedure section 664.6.

The Metropolitan Water District of Southern California (Metro) fired Timothy Leuschner for fighting another employee, violating its no-smoking policy, and insubordination. Leuschner’s union, American Federation of State, County & Municipal Employees, Local 1902 (AFSCME), appealed Metro’s decision to a neutral hearing officer. At the hearing, Metro sought to prove Leuschner was the aggressor who intentionally harmed the other employee. The hearing officer instead found the other employee initiated the physical altercation by headbutting Leuschner in the face, and Leuschner used force to defend himself. The hearing officer also found Metro’s other bases for terminating Leuschner were unpersuasive. Accordingly, it ordered Metro to reduce Leuschner’s discipline to a three-week suspension.

In 2013, defendant was charged in a consolidated information with 10 felony counts, including two counts of attempted murder arising from assaults on defendant’s former girlfriend and her brother while threatening them with a shotgun. After a jury trial in which defendant testified, defendant was found guilty of all charges and sentenced to an indeterminate term of 48 years to life, plus an eight-year determinate term.
We affirmed defendant’s conviction. (People v. Williams (May 8, 2015, B252994) [nonpub. opn.].)
After the passage of Senate Bill 1437 (2017–2018 Reg. Sess.) in 2018, defendant filed, in propria persona, a petition for resentencing pursuant to Penal Code section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)

Based on his participation in a series of gang-related shootings on July 12, 1998, Albert Arriola was convicted of, among other crimes, four counts of attempted murder. (People v. Arriola (July 28, 2000, B131255) at pp. 2-4 [nonpub. opn.] (Arriola I).) In February 2019, Arriola petitioned the trial court under Penal Code section 1170.95 to vacate his sentences for attempted murder and resentence him on the remaining counts. The trial court summarily denied Arriola’s petition because, at the time, section 1170.95 did not provide for resentencing based on attempted murder convictions. We affirmed the trial court’s order in a nonpublished opinion. (People v. Arriola (Apr. 1, 2020, B297120) at p. 6 [nonpub. opn.] (Arriola II).) Arriola petitioned the Supreme Court for review and the Supreme Court granted and held the matter pending its review in another matter.

J.O. (Mother) appeals the juvenile court’s order denying her modification petition pursuant to Welfare and Institutions Code section 388. She contends the court abused its discretion when it denied the petition without an evidentiary hearing. The allegations of Mother’s petition were insufficient to warrant a further hearing, so we affirm.

T.W. seeks review of the trial court’s order denying his requests for determination and correction of the amount of child support payment arrearages owed by him to his former wife, V.F. We reject T.W.’s claims of error and shall affirm.

In December 2019, defendant and appellant Cean Allen Garner pleaded no contest to three counts of possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)). In August 2020, the trial court suspended imposition of sentence and placed Garner on formal probation for three years, subject to various terms and conditions. On appeal, Garner challenges the validity of the court’s imposition of certain fines and fees in light of subsequently enacted legislation. He further contends the order of probation must be modified to correct clerical errors. We agree.

A jury convicted Melvin Lewis Mack, Jr. of three felonies, including robbery. The trial court sentenced him to prison and imposed a restitution fine and two assessments. On appeal, Mack argues the robbery conviction must be reversed because the prosecution “violated the rules of discovery” by disclosing evidence on the eve of trial. He also challenges his sentence. We vacate the sentence and remand for resentencing.

Appellant Dale Joseph Everett Coley appeals from the trial court’s denial of his petition under Penal Code section 1170.95 seeking resentencing on his conviction for second degree murder and attempted murder without premeditation. We affirmed the court’s order in a previous opinion. (People v. Coley (May 7, 2021, A159927) [nonpub. opn.].) Thereafter, the Supreme Court granted review and transferred the matter back to us “with directions to vacate [our] decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952.” We again affirm.

A jury convicted appellant Marcel Brooks of conspiracy to commit murder and attempted murder of his 11-month-old son. On appeal, Brooks argued that the trial court abused its discretion by (1) denying his two motions to replace his appointed attorney; (2) admitting jail letters from Brooks to his co-conspirator Andanna Ibe that contained sexually explicit statements; and (3) admitting a police sergeant’s testimony related to song lyrics contained in another jail letter from Brooks to Ibe. We rejected those claims in our original opinion.
The California Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Assembly Bill No. 518 (2021–2022 Reg Sess.) (Stats. 2021, ch. 441, § 1) (Assembly Bill No. 518), which recently amended Penal Code section 654 to afford trial courts discretion to impose a lesser sentence.