CA Unpub Decisions

In 2019, Thai filed a Penal Code section 1170.95 petition seeking to vacate his prior convictions for murder, conspiracy to commit murder, and attempted murder. In 2020, the trial court summarily denied the section 1170.95 petition as to the three convictions. Thai filed an appeal.
Effective January 1, 2022, the Legislature amended section 1170.95 to include convictions for attempted murder. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, § 2.) We asked for further briefing from the parties.
As to Thai’s murder conviction, we affirm the trial court’s order. Thai is ineligible for relief under section 1170.95 as a matter of law because he was convicted under the provocative act murder doctrine, not the felony-murder rule and/or the natural and probable consequences doctrine.
As to Thai’s conspiracy to commit murder conviction, we affirm the trial court’s order.

Defendant Gurpaul Singh Bains appeals from a civil harassment restraining order (CHRO) protecting plaintiff Daljit Singh (defendant’s former employer) and plaintiff’s wife and son. Defendant also challenges the denial of his peremptory challenge to the trial judge.
Plaintiff requests this court take judicial notice of a second CHRO issued against defendant and contends this appeal is moot because defendant did not appeal a second CHRO. Plaintiff also contends the peremptory challenge was properly denied as untimely.
We grant plaintiff’s request for judicial notice of the second CHRO. We conclude the appeal of the first CHRO is moot because reversing that CHRO would not give defendant any practical, effective relief because he would still be subject to the second CHRO, which was not appealed.
We therefore dismiss the appeal as moot.

Defendant Ruben Charles Walker contends on appeal that (1) his sentence on count 2 should be stayed pursuant to Penal Code section 654; and (2) his sentence on count 1 must be vacated and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). We stay defendant’s sentence on count 2, and affirm the case in all other respects.

Appointed counsel for defendant Francis Ronczyk asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

Appointed counsel for defendant Chad Michael Hosburgh asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, requesting that we strike his prior prison term enhancements and restitution fines. We strike the two prior prison term enhancements and remand for resentencing. In all other respects, we affirm.

Defendant Tyler Roe was convicted of 14 offenses in four cases. As part of defendant’s sentence, the trial court imposed fines and fees. It then stayed the sentence on one of defendant’s convictions pursuant to Penal Code section 654, but it did not stay the fines and fees imposed as to that count. On appeal, he contends that the trial court erred (1) in failing to stay the fines and fees related to the conviction for which the sentence was stayed, and (2) in imposing section 1464 state penalties more than once per case. The People agree with defendant as to the first issue, but disagree as to the second issue. We vacate the sentence and remand for resentencing with direction to stay the fines and fees imposed as to the stayed count and strike the portion of the section 1464 penalties imposed based upon the fines and fees that must be stayed.

In 2002, defendant Federico Luis Delgado was sentenced to 26 years 8 months for offenses he committed when he was 20 years old. This was a second-strike sentence under the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).) In April 2020, defendant filed a motion under section 1203.01 for an opportunity to preserve mitigating youth-related evidence for use at a future parole hearing pursuant to the California Supreme Court decisions in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and In re Cook (2019) 7 Cal.5th 439 (Cook). As defendant was ineligible for a youth offender parole hearing under section 3051 as a second-strike offender, the trial court denied the motion.
Defendant concedes he is ineligible for a youth offender parole hearing under section 3051, and he does not challenge that exclusion.

Appellant Luciano M. Silveira (husband) appeals a default judgment of marital dissolution (Judgment) terminating his marriage to Shelly J. Silveira (wife) and ordering a division of marital assets. Husband contends he was denied due process when the trial court dismissed his petition for dissolution of marriage (Petition), allowed his wife’s response to the Petition (Response) to become the petition, and entered his default in the litigation. Husband further contends the court erred in denying his motions to set aside the default and a related motion for reconsideration. We reverse the Judgment and reinstate husband’s Petition.

The Riverside County public administrator was appointed to administer the estate of Albert John Rinaldo (decedent). In January 2020, Brala Beverly (plaintiff) appealed from the order appointing the public administrator. While her appeal was pending, the public administrator took action to evict plaintiff from decedent’s mobile home and denied three creditor’s claims filed by plaintiff pursuant to Probate Code section 9000 et seq.
In response, plaintiff filed a civil complaint seeking damages against the public administrator and several of decedent’s family members, including decedent’s sister, Kathleen Bertulli (Bertulli), under various theories of liability. The trial court sustained demurrers to a first amended complaint and second amended complaint, but it granted plaintiff leave to amend on each occasion.

Jennifer and Jesse Mallonee sued Toyota Motor Sales, U.S.A., Inc., under the Song-Beverly Consumer Warranty Act (Civ. Code, §§ 1790 et seq.), commonly known as California’s “lemon law.” After the Mallonees prevailed at trial, they sought to recover about $430,000 in attorney’s fees, but the trial court awarded them only about $41,000. The Mallonees appeal the fee award. We affirm.

James M. believed defendant and appellant David Hemsley was having an affair with his girlfriend. The two men engaged in a fistfight, leading to defendant firing two shots at James, one of which hit him in the chest.
Defendant appeals from judgment entered following jury convictions for unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a); count 2) , unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3), and assault with a semiautomatic firearm (§ 245, subd (b); count 4). The jury also found true allegations that defendant personally used a firearm and inflicted great bodily injury (GBI) in the commission of the assault (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a)). The jury also found that defendant had a prior burglary conviction, which qualified as a strike and a prior serious felony enhancement (nickel prior) (§§ 667, subd. (a)(1), 1170.12).

Chino-Pacific Warehouse Corporation contracted with Leslie’s Poolmart, Inc. to provide storage for Poolmart’s chlorine products. Chino stored Poolmart’s chlorine products in a warehouse whose owner later sued Chino when the owner discovered that the products damaged the warehouse. In response, Chino sued Poolmart in a separate action for breach of contract and fraud, alleging that Poolmart failed to provide Chino with all information necessary to properly store the chlorine products. A jury disagreed and rendered a complete defense verdict for Poolmart.
Chino argues the trial court prejudicially erred by instructing the jury about a disputed condition-precedent provision in the parties’ contract and by precluding a “rebuttal witness” from testifying. We find no error and affirm.

We have independently reviewed the record in this case consistent with our obligations under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We deem appellant’s request for judicial notice filed December 14, 2021, to be a motion to augment the record with documents properly before the trial court. Accordingly, we grant the motion. (Cal. Rules of Court, rule 8.155(a).) We conclude there are no arguable issues on appeal other than a correction of a clerical error on the abstract of judgment. We, therefore, order the clerk of the superior court to strike from the abstract of judgment the criminal justice administration fee in the amount of $308 because it does not conform to the court’s pronouncement of judgment. In all other respects, we affirm the judgment.

This appeal only raises claims of sentencing error. After a bench trial, Jesus Aranda Montes was convicted of arson of property (a lesser included offense of arson of a structure, Count 1), possessing a destructive device in public (Count 2), and possessing a flammable material (Count 3). Believing it was required to designate Count 2 as the “principal term” because it had the highest triad (two, four, or six years), the court sentenced Montes to prison for six years and eight months.
Citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), on appeal Montes contends the trial court misunderstood the scope of its discretion in choosing the principal term. We agree. The principal term is the longest term the court chooses to impose, not the longest term available. (Id. at pp. 215‒218.) Because the trial court misunderstood the scope of its discretion, the matter must be remanded for resentencing. (See People v. El (2021) 65 Cal.App.5th 963, 966‒967.)