CA Unpub Decisions

Defendant Taran Lavel Kendrick appeals the trial court’s summary denial of his request to be resentenced in light of the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) and failure to consider striking or reducing his firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Defendant contends the trial court erred: (1) in determining the resentencing provisions of Penal Code section 1170.95 only apply to persons convicted of murder and not attempted murder; (2) in denying his request for resentencing prior to appointing counsel to represent him; and (3) in failing to consider defendant’s request for reduction of his firearm enhancement. In our original unpublished decision in this matter, we disagreed and affirmed the trial court’s order.

Plaintiff Cardiovascular Consultants Heart Center (the Center) appeals from the summary judgment granted in favor of defendant NORCAL Mutual Insurance Company (NORCAL). The Center also challenges the denial of its own motion for summary adjudication. The issue in this appeal arises from the Center’s contention that NORCAL had a duty to defend the Center under a medical professional liability insurance policy in connection with civil investigative demands issued by the United Stated Department of Justice (DOJ). These demands alleged that the Center “submitted false claims to the U.S. Government for excessive, medically unnecessary, and/or inadequately documented cardiovascular procedures” in violation of the False Claims Act (31 U.S.C. §§ 3729-3733; FCA). We conclude NORCAL did not have a duty to defend as a matter of law and affirm the judgment.

Rodrick Cole appeals from the superior court’s order summarily denying his petition for writ of mandate directed to the California Department of Corrections and Rehabilitation (CDCR), challenging as illegal his 2008 sentence for assault with a firearm with prior serious felony and firearm-use enhancements, and the CDCR’s classification of his offenses as violent within the meaning of Proposition 57. No arguable issues were identified by Cole’s appointed appellate counsel after his review of the record. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Cole in a supplemental brief. We affirm.

Jason Eric Lockhart appeals from the judgment after he pled no contest to two counts of sexual penetration. (Pen. Code, § 289, subd. (a)(1)(C).)
In 2018, Lockhart sexually molested his 16-year-old stepdaughter. After he pled no contest to two counts of sexual penetration, the trial court sentenced him to 16 years in state prison (two consecutive middle terms of eight years for each count).
We appointed counsel to represent Lockhart in this appeal. After counsel’s examination of the record, counsel filed an opening brief raising no issues. On January 26, 2022, we advised Lockhart that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have not received a response.
We have reviewed the entire record and are satisfied that counsel has fully complied with their responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.)

Appellant father D.C. challenges jurisdictional findings and disposition orders concerning his son, N.C. Respondent Los Angeles County Department of Children and Family Services (DCFS) concedes the jurisdictional findings are not supported by substantial evidence and does not oppose reversal. We accept the concession and agree that substantial evidence does not establish a nexus between father’s marijuana use and risk to N.C. We accordingly reverse the findings and orders.

Kenneth and Ruth Dymmel (collectively, the Dymmels) have been significantly in arrears on their home mortgage since 2014, and the balance as of 2019, $1,260,594.78, vastly exceeds the initial amount that they borrowed.
In November 2019, more than three months after a notice of default and election to sell their property had been recorded, the Dymmels submitted a loan modification application, as to which there was no response. In December 2019, they sued various mortgage holders and servicers, defendants Bank of America, N.A. (Bank of America), Nationstar Mortgage LLC (Nationstar), and Aztec Foreclosure Corporation (Aztec), for failing to accept their loan modification application.
Nationstar, the current mortgage servicer, responded to the lawsuit by filing a motion for judgment on the pleadings, which the trial court granted. The Dymmels appeal from this order. As we discuss below, their challenges to the judgment are meritless. Accordingly, we affirm.

Chad Ky Scholer appeals the trial court’s denial of a request to recall his sentence made by the Secretary of the California Department of Corrections and Rehabilitation (CDCR) under Penal Code section 1170, subdivision (d)(1).
The trial court summarily denied the request citing facts in the record to support its decision. While this matter was on appeal, the Legislature passed Assembly Bill No. 1540 (2021 Reg. Sess.) (Stats. 2021, ch. 719, § 2) (hereafter AB 1540). The parties agree that in light of this bill a remand is required for a new hearing that meets the standards this legislation requires. We reverse and remand for further proceedings.

Paula Herriott (Paula) appeals from the trial court’s ruling denying her applications for civil harassment restraining orders against her uncle and two neighbors. The trial court’s ruling was correct, so we affirm.

In 2007, appellant Deion Haggerty was convicted of, among other crimes, three counts of attempted willful, deliberate and premeditated murder. On appeal, he argues that the trial court erred in summarily denying his Penal Code section 1170.95 petitions without appointing counsel. We affirm because appellant was ineligible for relief both at the time of the trial court’s February 2021 denial – and even now under recent amendments to section 1170.95. Those amendments added attempted murder to the crimes for which resentencing was available under the statute. We conclude that appellant is nevertheless ineligible for section 1170.95 relief because he was not convicted of attempted murder under the natural and probable consequences doctrine.

Patrick Allen Cannavan appeals a judgment entered following his guilty plea to two counts of forcible lewd acts with a child with admissions regarding the statute of limitations and substantial sexual conduct with a child. (Pen. Code, §§ 288, subd. (b)(1), 801.1, subd. (a), 1203.066, subd. (a)(8).) We strike the $5,000 child abuse prevention fine as unauthorized, reverse and remand for resentencing regarding the $10,000 victim-witness assistance fine, but otherwise affirm. (§§ 294, 288, subd. (e)(1).)

Derrick T. Myers was convicted of one count of second degree robbery in 2013 and sentenced to 19 years in prison, the sentence including a base term and several enhancements, including a five-year prior serious felony enhancement pursuant to Penal Code section 667, subdivision (a)(1). (People v. Myers (2014) 227 Cal.App.4th 1219.)
In 2019, the secretary of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court invoking the sentence recall provision of section 1170, subdivision (d)(1) and requesting that in light of a recent amendment to section 1385 the court consider striking Myers’s serious felony prior and recalling its order to run his sentences consecutively.
The court denied the request without a hearing, stating it was “aware of its discretion” but elected not to exercise it.

Karen A., the former caretaker of Kaylee B., filed a petition under Welfare and Institutions Code section 366.26, subdivision (n), objecting to removing Kaylee from her care and asking the court to designate her as Kaylee’s prospective adoptive parent. Karen appeals from the juvenile court’s order denying the petition. Because the order is not appealable, and because Karen did not have standing to file the petition in the first place, we dismiss the appeal.

In 2012, a jury convicted Ronald Jones of the first degree murder of Annton Berry. At trial, the People prosecuted Jones under a felony-murder theory, arguing he either killed Berry during the commission of a robbery or aided and abetted the actual killer during the commission of a robbery. This court affirmed Jones’s conviction on direct appeal in 2013. (People v. Jones (Sept. 26, 2013, B241140) [nonpub. opn.].)
In 2019, Jones filed a petition to have his conviction vacated under Penal Code section 1170.95, arguing he couldn’t now be convicted of first or second degree murder under sections 188 and 189 as those statutes were amended by Senate Bill No. 1437 (S.B. 1437).

The Law Offices of Paul N. Philips, A Professional Law Corporation (Philips APLC) sued David P. Rudich and the Law Office of David Rudich (collectively Rudich) for declaratory relief and defamation per se. Rudich moved to specially strike the defamation per se cause of action under Code of Civil Procedure section 425.16 (anti-SLAPP statute). The trial court denied the motion, finding Rudich failed to establish the defamation per se allegations were based on protected activity. Rudich contends the trial court erred because his statements were subject to the litigation privilege. We disagree and affirm.