CA Unpub Decisions

In 2019, the juvenile court removed Mother’s children, infant son G.S. and teenager B.C., from Mother due to Mother’s methamphetamine use. The juvenile court sustained allegations that, inter alia, G.S. tested positive for amphetamines at his birth.
On September 9, 2020, the juvenile court terminated family reunification services relating to G.S. On September 25, 2019, the juvenile court terminated jurisdiction as to B.C., and granted sole legal and physical custody of B.C. to her father, Bradley C. In January 2021, the juvenile court terminated Mother’s parental rights as to G.S. Neither B.C. nor G.S. is a subject of this appeal.
B. Dependency Proceedings Relating to K.S.
In December 2020, while dependency proceedings relating to G.S. were pending, K.S. was born. At this birth, Mother tested negative for substances.

In 1997 defendant and his codefendant Glenn Tracchia, Jr., were each convicted by a jury of the second degree murder of Robert Imperial with true findings that a principal was armed with a firearm and that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote and assist in criminal conduct by gang members. Defendant was sentenced to 16 years to life in prison. We affirmed the judgment in People v. Tracchia (B117379, Oct. 19, 1998) (nonpub. opn.).

Appellant Phillip Benjamin Gunn was convicted of first degree murder and robbery in 1981 and was sentenced to life without the possibility of parole. In 2019, he filed a petition under Penal Code section 1172.6 (former section 1170.95) to vacate his murder conviction. Appellant claimed that he was convicted under the felony murder rule, and that he was not the actual killer, had not acted with intent to kill, and had not even participated in the underlying robbery. Among other things, he alleged that although he shot the victim (in self-defense), he merely injured him, and another person shot and killed him after appellant left the scene. The superior court denied the petition without issuing an order to show cause after concluding that appellant was ineligible for relief as a matter of law because he was “the actual shooter.” On appeal, appellant contends the court erred in denying his petition without holding an evidentiary hearing.

We begin our opinion with an overview of the rather complex appellate history of this case. Three codefendants, Devin Lewis, Paul Jordan, and Anthony McLaurin, were convicted of multiple offenses, including felony murder and premeditated attempted murder. Many years later, they filed petitions for resentencing under Penal Code former section 1170.95 (now section 1172.6), which were summarily denied. In a single opinion we reversed the trial court’s orders denying the petitions. (People v. McLaurin (July 6, 2020, B296078, B298820 & B293314 [nonpub. opn.].) We refer to this appeal as the “First 1170.95 Appeal.”
Defendant Lewis, alone, sought Supreme Court review of that part of our opinion which held attempted murder did not qualify for section 1170.95 relief. Accordingly, our remittitur issued only as to defendants Jordan and McLaurin. Even though the remand to the trial court did not apply to Lewis, the trial court held further proceedings as to all three defendants.

In September 2021, an information was filed charging Appellant with unlawful handling of human remains (§ 7052, subd. (a); count one); removal or possession of a memento from human remains (§ 7051.5, subd. (a); count two); and unauthorized entry of a dwelling house (Pen. Code, § 605.2, subd. (a); count three). The charges were based on evidence that Appellant had mishandled human remains while staying at an abandoned house.
In October 2021, defense counsel requested a doctor be appointed to determine Appellant’s competency because Appellant sustained a head injury in a motor vehicle accident just before his arrest. In November, following receipt of the doctor’s report, both counsel stipulated to a finding of competency and the trial court so found.
At the same hearing, Appellant asked to address the trial court about “something that is very important,” continuing, “[m]aybe you would like to understand this is a corrupt officer in my case.”

The following summary of the facts is taken from the probation report which summarized a Vacaville Police Department report.
During a traffic stop, police contacted defendant, the driver of the vehicle, and learned he was on probation for identity theft with a search condition. Upon searching the vehicle, officers located personal identifying information, including a Social Security number, home address, birthdate, and driver’s license number for S.H., a resident of Texas. The officers spoke with S.H. on the telephone. S.H. indicated she neither knew defendant nor gave him permission to have her personal identifying information.
The Solano County District Attorney filed a complaint charging defendant with one count of felony identifying information theft with a prior conviction (Pen. Code, § 530.5, subd. (c)(2); count 1).

The following summary of the facts is taken from the probation report which summarized a Vacaville Police Department report.
During a traffic stop, police contacted defendant, the driver of the vehicle, and learned he was on probation for identity theft with a search condition. Upon searching the vehicle, officers located personal identifying information, including a Social Security number, home address, birthdate, and driver’s license number for S.H., a resident of Texas. The officers spoke with S.H. on the telephone. S.H. indicated she neither knew defendant nor gave him permission to have her personal identifying information.
The Solano County District Attorney filed a complaint charging defendant with one count of felony identifying information theft with a prior conviction (Pen. Code, § 530.5, subd. (c)(2); count 1).

“In February 2019, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging Mother was unable to provide regular care for the minor, then 21 days old, due to her history of substance abuse and because the minor’s umbilical cord tested positive for methamphetamines, and further alleging Mother’s parental rights had been terminated as to minor’s half-sibling, C.W. ([] § 300, subds. (b) &(j).)” (In re Baby Boy W., supra, at p. *1.)
“At the detention hearing, the court . . . ordered minor detained, ordered supervised visitation for mother, and ordered services for mother pending further proceedings. Those services included a psychological evaluation and substance abuse treatment. . . .” (A.W. v. Superior Court, supra, at p. *1.)
Jurisdiction and Disposition
At the jurisdiction hearing, the court sustained the petition.

In October 2020, the San Francisco Human Services Agency (Agency) received a report that both mother and baby L.A. had tested positive for methamphetamine. L.A. was born prematurely at 35 weeks and was in the neonatal intensive care unit (NICU) suffering from low birth weight, low blood sugar, and feeding issues which required ongoing medical care and observation. Both mother and T.A. (father) denied mother used drugs. According to mother, she stopped using in February when she learned she was pregnant. Mother would not allow the social worker to disclose the positive drug tests to the maternal grandmother, so the Agency was unable to explore safety planning with the family. Mother theorized that someone might have slipped some methamphetamine into her water.
Mother’s older child, N.B., had been placed in a guardianship in January 2019 after mother failed to reunify with her.

“On July 10, 2016, Plaintiff and a friend began a 30-mile bicycle ride to train for an upcoming organized, noncompetitive, long-distance ride. As they biked down a hill on a road maintained by the County, they encountered a pothole measuring four feet long, three feet four inches wide, and four inches deep. Plaintiff was traveling at least 25 miles per hour and, by the time she saw the pothole, was unable to avoid it. Her bicycle struck the pothole and she was thrown to the pavement, incurring serious injuries. The pothole had been reported to the County more than six weeks earlier, on May 25, 2016. [¶] Plaintiff sued the County for dangerous condition of public property (Gov. Code, § 835). A jury found for Plaintiff, allocating 70 percent of the fault to the County and 30 percent to Plaintiff. Plaintiff was awarded more than $1.3 million in damages.” (Williams v. County of Sonoma (2020) 55 Cal.App.5th 125, 128, fn. omitted (Williams I).)

On April 13, 2015, the jury found Irving and his codefendant guilty of two counts of robbery. The trial court sentenced Irving to 14 years in prison that included a five-year prior serious felony enhancement under Penal Code section 667 and a one-year prior prison term enhancement under section 667.5. Irving appealed and this court affirmed the conviction in an unpublished opinion. (People v. Irving (Feb. 28, 2020, A148581) [nonpub. opn.] (Irving I).) One of the challenges Irving raised in his prior appeal was that the trial court erred in admitting a jail call Irving made in which he told a co-defendant that the victims of the robbery would not be testifying at trial. This court decided the issue as follows in its opinion:

Section 4675, subdivision (a) provides, in relevant part: “Any party of interest in the property may file with the county a claim for the excess proceeds, in proportion to that person’s interest held with others of equal priority in the property at the time of sale, at any time prior to the expiration of one year following the recordation of the tax collector’s deed to the purchaser.” Section 4675, subdivisions (b) and (c) detail the process by which a party of interest may assign their right to claim excess proceeds, and the required disclosures and advisements to the party of interest to act on its behalf. Section 4675, subdivision (d) states: “The claims shall contain any information and proof deemed necessary by the board of supervisors to establish the claimant’s rights to all or any portion of the excess proceeds.”

Timm’s underlying lawsuit against Bluford arose from a business transaction that began in 2014. Neither party has made the underlying complaint a part of this record. From Timm’s declaration in support of his special motion to strike the later filed malicious prosecution lawsuit that is now before us, we learn the following about the parties’ business dealings that led to the underlying lawsuit.
In 2014, California Legal Pro’s Incorporated (CLP), a business owned by Bluford and his wife, Sarah Morell, offered to sell some of its assets to Auburn Capital, Inc., a business owned by Timm. CLP described itself as offering legal services bundled into “Package[s]” at set prices, such as an “Eviction Package” for landlords attempting to evict tenants. Transworld Business Advisors (Transworld) served as a business broker for CLP.

The background and details of this dispute are summarized in our prior opinion, in which we reversed a judgment entered in Chase’s favor after the trial court erroneously granted Chase a nonsuit at trial based on the statute of frauds doctrine. (See Shiheiber v. JPMorgan Chase Bank, N.A. (Aug. 28, 2018, A147310 [nonpub. opn.].) That ruling, and those issues, are not pertinent here.
On remand, the case proceeded to a re-trial which took place over the course of about 10 days. At least eight witnesses testified, and the reporter’s transcript is more than 2,200 pages. Shiheiber has not summarized any of the trial evidence. (See Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s brief must “[p]rovide a summary of the significant facts limited to matters in the record”].)