CA Unpub Decisions

Greg Chavez appeals from a judgment denying his petition for an administrative writ of mandate. Chavez sought to set aside the suspension of his driving privileges by the Department of Motor Vehicles for driving while intoxicated and for refusing to submit to a chemical test of his blood or urine. Chavez contends the arresting officer did not have reasonable suspicion to stop him based solely on an anonymous tip of a “possible drunk driver.” The resulting arrest was thus unlawful and could not support the suspension. We disagree and affirm.

This litigation follows the alleged breach of two contracts: a bridge loan agreement, which contains an arbitration provision, and a guaranty of that loan agreement, which does not contain an arbitration provision. When the borrower did not repay the monies loaned, plaintiff and respondent 902878 Ontario Ltd. (the lender) brought this action against defendants and appellants Emmett Furla Oasis Films, LLC (EFO) (the guarantor) and Randall Emmett (Emmett), alleging breach of the guaranty and fraud. In response, defendants filed a motion to compel arbitration, asserting that the arbitration provision set forth in the bridge loan agreement controls. The trial court denied defendants’ motion, finding that the gravamen of plaintiff’s claims was breach of the guaranty, which does not contain an arbitration provision, not breach of the bridge loan agreement.

Robert Crowder, an attorney, and Freeman, Freeman & Smiley LLP (Freeman), his former law firm, disputed the payment due Crowder upon his withdrawal from the partnership. Pursuant to a partnership agreement, the dispute proceeded to arbitration, resulting in an award in favor of Freeman for damages and attorney fees. Crowder petitioned the superior court to vacate the award and Freeman moved to confirm it. The trial court denied Crowder’s petition and confirmed the award, and we affirmed the resulting judgment. (Crowder v. Freeman (July 1, 2021, B303397) [nonpub. opn.].)
The arbitration agreement provided that “ ‘[t]he arbitrator may award reasonable attorneys’ fees and arbitration costs to the prevailing party.”
Freeman moved in superior court for attorneys’ fees, including fees incurred in court proceedings to confirm the award. The court awarded Freeman attorney fees in the amount of $34,455.

In 2011 a jury convicted David Chavez of the attempted willful, deliberate, and premeditated murder of Christian Contreras and assault with a firearm on Mario Olivares. The jury also found true multiple firearm enhancement allegations as to the attempted murder, including that in the commission of the offense, Chavez personally and intentionally discharged a firearm. We affirmed the judgment. (People v. Chavez (Aug. 15, 2012, B234522) [nonpub. opn.] (Chavez I).)
In 2019 Chavez, representing himself, filed a petition for resentencing seeking to vacate his attempted murder conviction and be resentenced pursuant to Penal Code section 1170.95. The trial court summarily denied Chavez’s petition without appointing counsel on the basis Chavez was ineligible for resentencing as a matter of law because he was not convicted of murder. We again affirmed.

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. (Pen. Code, §§ 211, 213, subd. (a)(1)(A), 459, 186.22, subd. (a), 215, subd. (a),

While on probation for two convictions for making criminal threats (Pen. Code, § 422, subd. (a)), on April 12, 2018, defendant and appellant Ahmad Talal Smadi sent his probation officer an email. In his email, defendant stated that if he did not receive $10 million from the County of Los Angeles, and personal apologies from the judge who presided over his prior cases (the Honorable Hayden Zacky) and the prosecuting attorney (Los Angeles County Deputy District Attorney (DDA) Elena Abramson), defendant would execute both for treason. Each victim received the email, and defendant was arrested.
In a June 2018 information, defendant was charged with two counts of making criminal threats (§ 422, subd. (a)). The information also alleged that defendant had suffered two convictions in November 2013 for making criminal threats, each constituting a prior serious or violent felony conviction (§§ 667, subds. (a), (b) (i), 1170.12, subds. (a) (d)).

Maria Del Carmen Granados Fajardo appeals an order denying her petition for resentencing filed under Penal Code section 1170.95 following her prior conviction of second degree murder. (§ 187, subd. (a).) The trial court did not issue an order to show cause for an evidentiary hearing. We affirmed. Our Supreme Court granted a petition for review and transferred this matter back with directions for us to vacate our prior opinion and reconsider the cause in light of Senate Bill No. 775. (Stats. 2021, ch. 551, § 2.) We have considered the impact of the new law, and we have decided the trial court erred by denying the petition without first issuing an order to show cause for an evidentiary hearing. We reverse.

A jury convicted Gumaro Salamanca of first degree murder, attempted willful, deliberate and premeditated murder, and shooting at an inhabited dwelling, and found true several firearm and gang allegations. The trial court sentenced him to 50 years to life in prison. We conditionally reversed the conviction. (People v. Salamanca (Jan. 13, 2016, B254814) [nonpub. opn.].) In that decision, we concluded that Salamanca’s “conviction for . . . murder may have been [improperly] based on the . . . theory of natural and probable consequences.”
In 2019, Salamanca filed a petition for resentencing under Penal Code section 1170.95. Relief under section 1170.95 was available to an inmate convicted of murder under the natural and probable consequences, aiding and abetting doctrine but not to “a major participant in the underlying felony who acted with reckless indifference to human life.” (See Stats. 2018, ch. 1015,
§ 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

Pursuant to order by the California Supreme Court, we vacate our original opinion and issue this opinion instead.
In 2013, defendant and appellant Claudia Valencia was convicted of attempted murder. (Pen. Code, §§ 664, 187, subd. (a).) We affirmed the judgment on direct appeal. (People v. Valencia (Oct. 20, 2014, B253431) [nonpub. opn.] (Valencia I).) In 2019, following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), defendant filed a petition for resentencing under section 1170.95. As is relevant here, the trial court summarily denied the petition on the ground that section 1170.95 did not apply to convictions for attempted murder.
Defendant timely filed a notice of appeal. On November 24, 2020, we affirmed the trial court’s order on the ground that section 1170.95 does not apply to convictions for attempted murder. (People v. Valencia (Nov. 24, 2020, B299957) [nonpub. opn.].)
Defendant filed a petition for review with the California Supreme Court.

In 2002, Andres Santana was convicted of two counts of murder (Pen. Code, § 187, subd. (a)) and two counts of robbery (§ 211). The jury found true the special circumstance allegations that Santana committed the murders while engaged in a robbery (§ 190.2, subds. (a)(17)(A), (d)), for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), which resulted in multiple murders (§ 190.2, subd. (a)(3)). The trial court sentenced Santana to life without the possibility of parole plus 10 years for the gang enhancement. (People v. Santana (Apr. 11, 2005, B167415) [nonpub. opn.].)
In 2019, Santana filed a petition to vacate his murder convictions and obtain resentencing pursuant to section 1170.95, which was added to the Penal Code by Senate Bill No. 1437 (S.B. 1437). (Stats. 2018, ch. 1015, § 4.) The trial court denied the petition without appointing counsel.

A jury convicted appellant Leo Lloyd Adams of two counts of first degree murder and three counts of attempted murder as an aider and abettor, with gang and firearm enhancements. In an opinion filed in June 2015, we affirmed the judgment. Thereafter, the California Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu), which held that a defendant may not be convicted of first degree murder on a theory of natural and probable consequences. In July 2015, we modified our initial opinion in light of Chiu, finding that any error caused by instructing the jury on the natural and probable consequences doctrine was harmless beyond a reasonable doubt.
The California Supreme Court granted review, and later remanded the case to this court with directions to vacate our previous decision, and to reconsider the case in light of In re Martinez (2017) 3 Cal.5th 1216 (Martinez).

Steven Wayne Wing appeals from a sentence of 400 years to life in prison after a jury convicted him of four counts of sexual penetration with a child under 10 years old in violation of Penal Code section 288.7, subdivision (b) (§ 288.7(b)) and eight counts of committing a lewd and lascivious act on a child under age 14 in violation of section 288, subdivision (a) (§ 288(a)) while having a previous conviction for committing a lewd and lascivious act on a child under age 14. The trial court also imposed various fines, fees, and assessments. Wing contends his lengthy prison sentence constitutes cruel and unusual punishment in violation of the United States and California constitutions; the trial court violated his due process rights by imposing fines, fees, and assessments without inquiring into his ability to pay them; it violated his statutory rights by imposing two fines that he cannot pay; and the statute the trial court cited as the basis for one of the fines is inapplicable.

N.M. (mother) appeals from a juvenile court order terminating her parental rights as to her son, A.K. (the minor), at a hearing under Welfare and Institutions Code section 366.26. After the juvenile court entered its order, the California Supreme Court issued its decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), in which it clarified the relevant considerations for the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to the presumption favoring termination of parental rights of an adoptable child and placement of a child for adoption. Mother now argues the juvenile court’s finding that the beneficial relationship exception did not apply is inconsistent with Caden C.

Defendant Gilberto Balboa pled no contest to one count of lewd conduct in public under Penal Code section 647, subdivision (a). The superior court suspended sentence and imposed a probation term of three years pursuant to the parties’ plea agreement. Three months before defendant’s probation was set to expire, the court terminated his probation under section 1203a, as amended by Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950). Defendant then filed a motion to set aside his conviction and dismiss the information pursuant to section 1203.4, which provides that a defendant whose probation terminates successfully is entitled to expungement. The motion was denied.
On appeal, the Attorney General concedes that the superior court erred in denying the motion, and agrees that defendant is entitled to relief. We agree with the parties and reverse, remanding the matter to the lower court with instructions to grant defendant the relief he seeks.