CA Unpub Decisions

Years ago, a jury convicted defendant Elizabeth Chavez (defendant) on attempted murder and robbery charges for her participation in armed robberies of a pawn shop and a jewelry store. (People v. Chavez (May 18, 2016, B259908 [nonpub. opn.].) More recently, she filed a Penal Code section 1170.95 petition for resentencing in the trial court. The trial court denied the petition, and we initially affirmed because the terms of section 1170.95 as they existed at the time permitted relief only for those convicted of murder, not attempted murder.
After our disposition of defendant’s appeal, however, the Legislature passed and the Governor signed Senate Bill No. 775 (2020-2021 Reg. Sess.) (SB 775), which became effective on January 1, 2022.

A trial judge resentences under Penal Code section 1170.95, subdivision (e). The target offense was not charged. The trial court has discretion to resentence on an offense not charged that reflects the culpability of the defendant. We reverse and remand for a retrial on section 186.22, a gang enhancement. In all other respects, we affirm.

SwiftAir, LLC and Southwest Airlines Co. agreed that SwiftAir would develop a software platform offering certain inflight deals to Southwest passengers and that Southwest would test the software to determine whether to license it. After Southwest ultimately decided not to license the software, SwiftAir filed this action against Southwest for breach of contract, fraud, and other causes of action. The trial court granted Southwest’s motion for summary adjudication on SwiftAir’s non-contract causes of action on the ground they were preempted by the federal Airline Deregulation Act (49 U.S.C. § 41713(b)(1)) (ADA). A jury then determined Southwest was not liable for breach of contract, finding SwiftAir failed to prove it was harmed by Southwest’s failure to comply with the parties’ agreement.
On appeal SwiftAir contends the trial court erred in granting Southwest’s motion for summary adjudication because the ADA did not preempt any of its causes of action.

In 2006, a jury found defendant Luis Bustamante, also known as Luis Bustamonte, (defendant) guilty of attempted premeditated murder and robbery for his role, with a fellow criminal street gang member, in stealing a gold chain from a victim and later shooting the same victim. (People v. Bustamonte (Oct. 16. 2007, B195690 [nonpub. opn.].) More recently, defendant filed a Penal Code section 1170.95 petition for resentencing in the trial court. The trial court denied the petition, and we initially affirmed because the terms of section 1170.95 as they existed at the time permitted relief only for those convicted of murder, not attempted murder.
After our disposition of defendant’s appeal, however, the Legislature passed and the Governor signed Senate Bill No. 775 (2020-2021 Reg. Sess.) (SB 775), which became effective on January 1, 2022.

Mother C.C. and father D.A. appeal the juvenile court’s jurisdictional finding that they placed the children at risk of serious physical harm by repeatedly engaging in domestic violence in their home in the fall of 2020 while the children were present in the home. (Welf. & Inst. Code, § 300, subd. (b).) The parents assert that the petition failed to state a prima facie case for relief and that the juvenile court therefore erred when it denied mother’s motion akin to a demurrer. The parents also argue that the juvenile court’s jurisdictional findings are not supported by substantial evidence. The parents urge this court to reverse the juvenile court’s dispositional order declaring the children dependents of the juvenile court and ordering the parents to engage in family maintenance services.

Forrest B., age 82, petitioned for a restraining order under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act; Welf. & Inst. Code, § 15600 et seq.) alleging that his daughter, Deborah B., was abusive towards him. The trial court issued a three-year restraining order directing Deborah to stay at least 100 yards away from Forrest and move out of his residence. Deborah appealed the restraining order, arguing that the trial court abused its discretion. For the reasons set forth, we affirm.

Veena Roesler, individually and doing business as Palmdale Estates Inc. (collectively, plaintiffs), filed a complaint against defendants Nella Terra Cellars, Inc. (Nella Terra) and Gerald and Paulette Beemiller arising out of their business relationship. They alleged defendants reneged on their promise to execute a long-term contract leasing plaintiffs their vineyard to operate an event venue. The trial court ultimately determined plaintiffs invested in that venture and awarded them two years of anticipated lost profits and depreciable assets as a matter of equity. Defendants appeal, arguing the statement of decision omits the specific equitable basis for awarding damages and fails to explain whether the award is limited to plaintiffs’ anticipated lost profits for events that comply with Department of Alcoholic Beverage Control (ABC) regulations. We affirm in part, reverse in part, and remand for the trial court to issue a new statement of decision and enter a new judgment.

Defendant Susan Mae Polk appeals from a postjudgment order denying her petition for resentencing under Penal Code section 1170.95. The trial court found defendant ineligible for relief as a matter of law because she had not been convicted under the felony-murder rule or the natural and probable consequences doctrine. The court also concluded the jury’s finding that defendant personally used a knife indicated that defendant was the actual killer who acted with malice.
On appeal, defendant contends she is entitled to resentencing because (1) the trial court improperly considered the record of conviction; (2) the trial court employed an incorrect standard of review; and (3) the record does not indicate defendant was the actual killer, had an intent to kill, or acted with implied malice. Defendant further contends the trial court erroneously denied her motion to disqualify the trial court judge. We affirm the orders.

Three trusts own a plot of land in Santa Rosa as tenants in common, each owning a one-third, undivided interest. Respondent Deborah Wagner, a trustee of one of the trusts, brought this action to partition the property. Appellants are the beneficiaries of the other two trusts. On appeal, they challenge two trial court rulings. The first entered an interlocutory judgment of partition and the second ordered the partition to be by sale. We reject appellants’ arguments about the judgment of partition because they failed timely to appeal from it, and we conclude that the trial court properly exercised its discretion in ordering the partition be by sale. Accordingly, we affirm.

In February 2016, while in a confused mental state, Robert James Vega shot and killed an off-duty police officer, who was also his de facto father-in-law and his son’s grandfather. Charged with murder (Pen. Code, § 187, subd. (a)) with personal use of a firearm (§ 12022.53, subd. (b), (c) & (d)), he entered dual pleas of not guilty and not guilty by reason of insanity (NGI). Vega claimed he killed Augustine Vegas (Augustine), whom he loved like a father, in a temporary state of psychosis associated with posttraumatic stress disorder (PTSD), from which he had suffered since returning from military service in Iraq in 2007. 
The prosecutor’s theory was that Vega’s psychotic state was induced by cannabis consumption and did not qualify as insanity under the law. (See §§ 25, 29.8.) Both psychotic conditions are relatively rare, but the jury sided with the prosecution.

In 1997, a jury convicted defendant Eddy Jay Pereles of first degree murder (Pen. Code, § 187), conspiracy to commit robbery (§ 182, subd. (a)(1)), and second degree robbery (§§ 211, 212.5, subd. (b)). The jury found true the special circumstance allegation that defendant committed the murder during a robbery (§ 190.2, subd. (a)(17)), and the allegation that a principal was armed with a firearm (§ 12022, subd. (d)) during the commission of the murder and the robbery. The superior court sentenced defendant to life without the possibility of parole, with a consecutive two-year term for the arming enhancement associated with the murder count. In 2000, this court ordered a restitution fine stricken and affirmed the judgment in case No. H018342.
Defendant subsequently filed a petition for writ of habeas corpus, contending that there was insufficient evidence to support the felony-murder special circumstance finding under People v. Banks (2015) 61 Cal.4th 788 (Banks).

Appellant, T.G., appeals from an order terminating her parental rights as to A.G. Respondent Monterey County Department of Social Services (Department) and T.G. jointly move for a summary reversal of the order. The parties agree that the trial court erred in finding the child had a probability of adoption, foreclosing the permanent plan option of long-term foster care. We grant the motion and reverse the order pursuant to the stipulation of the parties.

Appellants Nicholas Jon Ortiz and Andrew Daniel Muir appeal from judgments entered after convictions by plea. Appointed counsel for Muir 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).) Muir 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 Muir, we affirm the judgment.
Ortiz raises two claims of error. For the reasons explained below, we modify Ortiz’s term of probation to two years and order one condition of probation stricken as duplicative. Otherwise, we affirm the judgment.

Antonio Medina-Puerta appeals from an order striking his motion to modify child support, as a terminating sanction for his abuse of the discovery process. His claims challenge the authority of the trial judge to issue any orders in the parentage action, the procedural regularity of the order for terminating sanctions, as well as its merits. Because the record substantiates none of Medina-Puerta’s claims about the trial judge or process while amply supporting the court’s factual findings and exercise of discretion, we affirm the order.