CA Unpub Decisions

In April 2015, defendant and appellant Branden Trevaughn Higgs pled no contest to four counts of attempted murder (Pen. Code, § 187, subd. (a), § 664) and one count of voluntary manslaughter (§ 192, subd. (a)) and admitted a firearm use allegation (§ 12022, subd. (a)(1)). The court sentenced defendant to a term of 16 years eight months.
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.) Defendant requested the appointment of counsel and resentencing on the grounds he was not the actual killer or a major participant in the crimes.
On March 9, 2020, the trial court summarily denied defendant’s petition without appointing counsel.

The Los Angeles Police Department (LAPD) offered one of its officers, who had injured his knee on the job, a choice of light-duty assignments while he rehabilitated but told him no position was available to accommodate his temporary disability at his current location. Informed by others that jobs were available at his location, which he preferred, the officer sued the City of Los Angeles for disability discrimination, retaliation, failure to reasonably accommodate and failure to engage in a good faith interactive process in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). The trial court granted the City’s motion for summary judgment.
Because triable issues of material fact existed about whether the City violated its obligation to participate in the interactive process in good faith by misrepresenting the availability of light-duty assignments for which the officer was qualified, we reverse the order granting summary judgment.

Defendant and appellant Katrina Barnum appeals a judgment in favor of plaintiff and respondent, The Twelve Tribes of Israel, U.S.A., Inc. (the Tribe) for promissory fraud and breach of an oral settlement agreement. The instant action arose out of promises Barnum made to the Tribe, while selling a property owned by her husband, Wilhelm Grafrath, and used by the Tribe as its headquarters. Grafrath, the leader of the Tribe, purchased the property in 1997, taking title in his own name, and Barnum quitclaimed any interest in the property. The Tribe subsequently paid the mortgage payments and used the property as its headquarters, believing that once the mortgage was paid off Grafrath would transfer title to the Twelve Tribes organization.
In 2006, Grafrath was deported to Germany, following a felony conviction, where he remains to this day. After Grafrath’s departure, the Tribe continued to use the property as its headquarters and pay the monthly mortgage payments.

Joshua Bryan Cooley was committed to an indefinite term at a state hospital after he was found in 2010 to be a sexually violent predator under the Sexually Violent Predators Act (Welf. & Inst. Code , §6600 et seq. (SVPA)). (People v. Cooley (Dec. 9, 2015, A142099 [nonpub. opn.] (Cooley II).) In December 2016 the court found Cooley eligible for conditional release to an appropriate program for supervision and treatment in the community. However, in January 2021, after more than four years of unproductive hearings addressing proposed placements, the court noticed its own motion for the reconsideration of the 2016 order and, following briefing and argument, rescinded it.

After a hearing, the trial court denied Cau La’s (plaintiff) petition for a restraining order under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.; Elder Abuse Act) and dismissed the matter with prejudice. Plaintiff appeals in propria persona. We affirm.

Metropolitan Water District of Southern California (Metropolitan) appeals from two postjudgment orders awarding San Diego County Water Authority (Water Authority or SDCWA), as the prevailing party, attorney fees and costs under Civil Code section 1717 (§ 1717) and costs under Code of Civil Procedure section 1032 (§ 1032). We affirm.

In this trust proceeding brought under the Probate Code, plaintiff Ronald Diller (Ron) challenges the administration of a marital trust created pursuant to a family trust established by his now-deceased parents Helen and Sanford Diller. The appeal is from a judgment of dismissal in favor of defendants Thomas Richardson (Richardson) (co-trustee of the marital trust) and the law firm of Arnold & Porter Kaye Scholer, LLP (Arnold & Porter) (trust counsel) following an order sustaining their demurrer to the second amended petition without leave to amend.
We conclude the pleading contains sufficient factual allegations to withstand demurrer. Therefore, we reverse the judgment of dismissal and remand for further proceedings.

Julius Berry appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple crimes, including mayhem (Pen. Code, § 203) for burning the back of his girlfriend’s neck with a lit cigarette and permanently disfiguring her. He contends the court erred by not instructing the jury on lesser included offenses of simple battery and attempted mayhem. He also contends the court erred in ordering him to pay a $500 domestic violence fund fee. In a supplemental brief, he contends the sentencing minutes and abstract of judgment should be corrected to delete fines and assessments that the court stayed. We will strike the domestic violence fund fee, affirm the judgment, and order correction of the abstract.

Daniel Lopez was convicted of two counts of attempted murder arising out of a bar room shooting. His defense was identity: his counsel maintained the eyewitness identification was unreliable, and his wife testified he was with her.
Defendant raises numerous issues on appeal, primarily regarding eyewitness identification issues, claimed prosecutorial misconduct, erroneous jury instructions, and insufficient evidence to support his conviction. He also contends, and the People concede, that the one-year enhancements imposed for prior prison terms under Penal Code section 667.5 must be stricken. We agree the enhancements should be stricken and the case remanded for resentencing. In all other respects, we affirm.

We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)
In February 2021, Dabid Duran pleaded no contest to four counts of a five-count information: assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1); count 2), assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 3), infliction of corporal injury on a dating partner (Pen. Code, § 273.5, subd. (a); count 4), and false imprisonment (Pen. Code, § 236; count 5). He was sentenced in April 2021 to the middle term of fours year on count 2, concurrent three-year middle terms on counts 3 and 4, and a concurrent two-year middle term on count 5.

Appellant Dialo Andraes Terry appeals from a judgment entered after conviction by plea. Appointed counsel for Terry has filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Terry was advised of the right to file a supplemental brief but has not responded. Finding no arguable error that would result in a disposition more favorable to Terry, we affirm the judgment.

Appellant Sally Kay Foster appeals from a judgment entered after a jury found her guilty of six counts of animal cruelty. She raises one claim of error, seeking vacatur pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869) of her probation supervision fee. The Attorney General concedes the issue and also asserts that Foster is entitled to a reduction in the length of her probation due to the enactment of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950).
For the reasons explained below, we remand this matter with directions to the trial court to modify Foster’s probationary term in accordance with current law. In addition, we order vacated any unpaid probation supervision fees. Otherwise, we affirm the judgment.

Mathew Enterprise, Inc., doing business as Stevens Creek Chrysler Jeep Dodge (SCJ), appeals from a postjudgment order awarding attorney fees to Timothy DeNike after a jury found in DeNike’s favor on causes of action for violations of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), violations of the Song Beverly Consumer Warranty Act (Song Beverly Act) (§ 1790 et seq.), and for intentional misrepresentation. Before awarding attorney fees, the trial court issued a permanent injunction against SCJ based on its independent findings that SCJ violated the CLRA.
For the reasons set forth below, we reverse the order awarding attorney fees and remand the matter to the trial court for further proceedings.

William Hugill died in November 2011. He was 94 years old and survived by four children and seven grandchildren. In 2012, one of his grandchildren, appellant Edward Bennett Gregge (Bennett), filed a petition under Probate Code section 17200 to determine the validity of a 2008 amendment to William’s trust. The petition was denied after a six-day court trial. Sitting in probate, the trial court found appellant failed to establish that William lacked testamentary capacity or was unduly influenced by respondent Michael Hugill (William’s son and appellant’s uncle) at the time the amendment was executed.
Bennett argues on appeal that the trial court applied the wrong mental capacity standard and made erroneous factual findings. As we will explain, the trial court correctly applied the testamentary capacity standard, and the evidence does not compel a finding in Bennett’s favor that William lacked capacity to execute the amendment.