CA Unpub Decisions
California Unpublished Decisions
Phillip Joseph Jojola and Robert Epifano Sanchez were convicted of conspiracy to commit murder, attempted willful, deliberate and premeditated murder, attempted extortion and false imprisonment with true findings the crimes were committed to benefit a criminal street gang. In prior opinions we explained their conspiracy convictions must be reversed because of error in the jury instructions. Jojola and Sanchez now argue, the Attorney General concedes, and we agree that the attempted murder convictions, as well as the criminal street gang enhancements, must be reversed because of recent ameliorative legislation that applies to their case.
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Appellant Darren Lee Davis drove drunk and crashed his SUV into a car driven by an off-duty police officer, breaking a bone in the officer’s forearm. A jury convicted Davis of two counts of driving under the influence of alcohol (DUI) and driving with a suspended license. The jury also found that Davis personally inflicted great bodily injury (GBI). The trial court sentenced him to an aggregate prison term of 12 years.
On appeal, Davis contends the trial court erred by allowing the officer to testify about her department’s policy on paying injured officers and by instructing on the GBI enhancement allegation with CALCRIM No. 3160. Davis further asserts that the cumulative effect of the two alleged errors prejudiced him. The Attorney General maintains that Davis’s contentions lack merit. In addition, the parties dispute whether this matter should be remanded for resentencing on one of the two DUI counts because the trial court failed to correctly pronounce judgment. |
After defendant Jovan Harris pleaded no contest to one count of attempted second degree robbery (Pen. Code, §§ 664, 211, 212.5) and admitted various sentencing enhancements, the trial court sentenced him to 25 years in state prison and dismissed a charge of attempted first degree murder (§§ 664, 187) in accordance with his plea agreement.
On appeal, Harris argues the trial court erred in denying his motion to quash a search warrant and denying his motion to suppress jail calls. In addition, Harris argues that, due to ameliorative changes in various sentencing laws, he is entitled to a remand for resentencing. Due to a change in the law following the close of briefing, we requested supplemental briefing from the parties as to the effect of Assembly Bill No. 1869 (2019 2020 Reg. Sess.) on the appeal, specifically its repeal of former Government Code section 29550 et seq., as well as its enactment of Government Code section 6111. |
Plaintiffs Tran Thi Thu Hang and Le Quoc Bao appeal from a dismissal of their complaint as against defendant Quynh Mai Nguyen after the trial court sustained Nguyen’s demurrer to the complaint without leave to amend on grounds of misjoinder. They contend the trial court erred in sustaining the demurrer and dismissing the complaint for various substantive and procedural reasons. Among the reasons are that a finding of misjoinder was unwarranted because the complaint’s allegations evidence plaintiffs’ respective claims arise from a related series of transactions and occurrences, and there are common issues of fact and law. We agree. Allegations of a civil conspiracy among all defendants, including Nguyen, to defraud Vietnamese citizens, including Hang and Bao, through a collectively devised investment scheme involving misrepresentations, false promises and concealment, are sufficient to make permissive joinder proper.
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Appellant E.M. (Mother) is the mother of the children J.M., A.M., and I.H. (collectively “the children”), who are the subjects of a dependency case. Mother challenges the juvenile court’s orders issued at a hearing on Mother’s request for a change in a prior order terminating her reunification services. Mother contends the juvenile court erred when it denied her request for additional reunification services. We reject Mother’s contention and affirm the order of the juvenile court.
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In 2018, appellant Robert Darrell Williams II pled no contest to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and admitted to serving a prior prison term (§ 667.5, subd. (b)) (2018 case). He was sentenced to a split sentence of five years—18 months of which he was to serve in custody in county jail and 42 months of which he was to serve on mandatory supervision. While on mandatory supervision, appellant committed additional offenses. In 2019, he pled no contest to dissuading a victim (§ 136.1, subd. (a)(2)), possession of heroin and fentanyl (Health & Saf. Code, § 11351), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (2019 case). On the 2019 case, appellant was sentenced to an aggregate prison term of four years eight months. A few days later, the court ordered appellant’s remaining term of mandatory supervision on his 2018 case to be converted to a straight prison sentence and be served concurrent to his prison term in the 2019 case.
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Appellant Francisco Sanchez was convicted by jury of two counts of committing a lewd and lascivious act with a child under the age of 14 (Pen. Code, § 288, subd. (a).) In addition, the jury found true an enhancement alleging Sanchez had committed the crimes against multiple victims. (§ 667.61, subd. (e)(4).) Sanchez was sentenced to an aggregate term of 50 years to life in state prison.
He raises the following claims on appeal: (1) the trial court erroneously admitted statements and letters of apology written by Sanchez in violation of Miranda ; (2) trial counsel rendered ineffective assistance of counsel by failing to seek to exclude Sanchez’s statements and his letters of apology pursuant to section 1538.5; and (3) the trial court’s investigation of potential juror misconduct interfered with the jury’s deliberative process. |
The juvenile court found true allegations that Y.M. et al. (the children) were at substantial risk of serious physical harm due to defendant and appellant, V.B. (mother’s), inability to protect the children. The court granted mother reunification services.
On appeal, mother contends insufficient evidence supports the juvenile court’s jurisdictional findings with respect to her. San Bernardino County Children and Family Services (the department) maintains mother’s challenges to the sufficiency of the evidence to support the juvenile court’s jurisdictional findings are nonjusticiable because: (1) she both failed to object to and agreed to the court’s dispositional order; and (2) the juvenile court’s findings as to the fathers would be sufficient for the court to take jurisdiction over the children regardless. We issued a tentative opinion in which we agreed with mother and proposed to reverse the jurisdictional findings against her. |
Defendant and appellant, Thurston Stewart IV, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the superior court denied. On appeal, defendant contended the court erred in denying his petition on the grounds that section 1170.95 did not apply to those convicted of attempted murder. We affirmed by opinion filed May 21, 2021.
On January 5, 2022, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On January 7, 2022, we vacated our opinion and provided that any party could file a supplemental brief within 15 days. Both parties have filed briefs maintaining the matter must be reversed and remanded. We reverse and remand the matter for reconsideration. |
Penal Code section 1473.7, subdivision (a)(2) allows a person no longer in criminal custody to file a motion to vacate a conviction based on newly discovered evidence of actual innocence. Defendant and appellant Janet Lundberg filed such a motion, contending that her 2014 diagnosis of Asperger’s Syndrome showed she was actually innocent of 14 sex crimes committed against two teenage boys in 2001. The trial court denied the motion, and we affirm, finding that the fact that Asperger’s Syndrome was diagnosable at the time she was charged and convicted, and that she pled guilty to the crimes, show that she has not brought forward newly discovered evidence of actual innocence.
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Ka.K. (Mother) appeals from the juvenile court’s order terminating her parental rights to her son at the hearing pursuant to Welfare and Institutions Code section 366.26. Mother’s sole contention on appeal is that the court erred by failing to apply the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i). We affirm.
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Defendant Nixon Ricardo Rodriguez appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95. He contends the trial court erred by summarily denying his petition without issuing an order to show cause. We will reverse and direct the trial court to issue an order to show cause.
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Defendant Andre Marcus Allen appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95. Defendant argues the trial court erred by improperly engaging in factfinding and not issuing an order to show cause and holding an evidentiary hearing. In a related argument, defendant contends that changes to the law on robbery-murder special circumstances require the prosecution to prove at an evidentiary hearing that a petitioner had the intent to kill or was a major participant who acted with reckless disregard for life, and defendant was not required to first challenge the sufficiency of the evidence in a habeas corpus proceeding before seeking relief under section 1170.95.
Because defendant’s arguments are related, we address them together and will affirm. |
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