CA Unpub Decisions

Channel Johnson stabbed her friend after a verbal argument. Johnson contended she was acting in self-defense, but a jury convicted her of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a deadly weapon (id., § 245, subd. (a)(1); count 2), and cruelty to a child by inflicting mental suffering (id., § 273a, subd. (b); count 3). The jury further found that the attempted murder was willful, deliberate and premeditated (id., § 189); that Johnson personally used a dangerous and deadly weapon, a knife (id., §§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)); and that she personally inflicted great bodily injury (id., §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)).
On appeal, Johnson contends the trial court erred when it allowed the prosecution to introduce evidence of a prior stabbing incident under Evidence Code section 1101, subdivision (b).

A jury found defendant Alan Wayne Hickman guilty of the first degree murder of his wife, Susan Hickman. The jury also found true allegations that defendant personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the offense. The trial court sentenced defendant to an aggregate term of 50 years to life in state prison.
Defendant appeals, arguing: (1) the trial court should have instructed the jury sua sponte on subjective provocation under CALCRIM No. 522 or, in the alternative, his trial counsel was ineffective for failing to request the instruction; (2) the trial court abused its discretion in declining to strike the firearm enhancement and impose a lesser enhancement; and (3) the trial court erred in imposing various fines, fees, and assessments without determining his ability to pay. We reject these contentions and affirm the judgment.

In 1993, a jury found defendant Lamar Deshon Simms guilty of second degree murder and assault with a deadly weapon. Defendant appeals the denial of this 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 and the court erred in relying on this court’s prior opinion to conclude defendant was ineligible for relief under section 1170.95 at the prima facie stage. The Attorney General concedes the error. We reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).

Defendant Garrison J. Nichols pled no contest to one count of committing a lewd or lascivious act on a child under 14. The trial court denied probation and sentenced defendant to the upper term of eight years in state prison. On appeal, defendant asserted the court abused its discretion in denying his request for probation and sentencing him to the upper term.
We previously filed an opinion addressing and rejecting defendant’s contentions and affirming the judgment. Subsequently, the California Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Penal Code sections 1170 and 1170.1, as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567). (Cal. Rules of Court, rule 8.528(d).)

This appeal concerns the distribution of real property from the estate of Susan Rae Ladley (Susan). Susan died intestate and without issue in 2017. She was survived by five siblings; appellants Robert A. Lewis, Debra L. Cane, Julia L. Askew, Steven R. Lewis, and Lynette K. McAliney (together, Susan’s siblings).
Susan was predeceased by her husband of 31 years, Carl Edward Ladley (Carl). Carl had three surviving children from a previous marriage; respondent Margaret Sanford (Sanford), Kelly Marie Gherardi, and Brian Alan Ladley (together, Carl’s children).
Carl’s children and Susan’s siblings asserted competing interests in Susan’s estate. Among other things, Carl’s children and Susan’s siblings each claimed entitlement to real property in South Lake Tahoe (the South Lake Tahoe property).

Matthew Michael George (defendant) challenges his misdemeanor conviction for simple assault (Pen. Code, § 240). Some of his challenges are frivolous; all of them are meritless. We accordingly affirm.

Mother appeals from the juvenile court’s orders terminating her parental rights to her children J.S.C., K.S.C., and N.C. on the sole ground substantial evidence does not support the juvenile court’s finding that the children were adoptable. We affirm

James and Lou Ann Foley filed this action against Airtouch Cellular Inc. dba Verizon Wireless (Verizon) after their Samsung Galaxy cell phone exploded, injuring James and damaging property in the Foleys’ home. Verizon filed a motion to compel arbitration based on a provision in a customer agreement signed by Lou Ann. The trial court granted the motion to compel Lou Ann to arbitrate her claims, but denied the motion to compel James, who did not sign the agreement, to arbitrate his. Verizon argues the trial court should have compelled James to arbitrate his claims because he was the account owner, Lou Ann acted as his agent when she purchased the phone from Verizon and signed an arbitration agreement, and James is equitably estopped from refusing to arbitrate. Because Verizon’s arguments are forfeited and meritless, we affirm.

In 1996, defendants and appellants Herman St. Amie (St. Amie), Kenyon Pitts (Pitts), Ronald Cains (Cains), and Marcell Cloud (Cloud) were convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a)), finding true the robbery-murder and kidnapping murder special circumstance allegations (§ 190.2, subds. (a)(17)(A) & (B)). They were sentenced to life in state prison without the possibility of parole.
In 2019, each defendant filed a petition for resentencing pursuant to section 1170.95. Over the People’s opposition, the trial court found that defendants had established a prima facie case for relief, issued an order to show cause, and held an evidentiary hearing pursuant to section 1170.95, subdivision (d).
After the evidentiary hearing, at which no party introduced new evidence, the trial court denied defendants’ petitions. Defendants each timely filed a notice of appeal.
We affirm the trial court’s orders.

Petitioner and appellant Melissa Belousoff appeals from a post-judgment order denying her request for modification of spousal support awarded to her former husband Monte McConnell. In the family law court, McConnell had the burden under Family Code section 4323 to show that cohabitation with his girlfriend did not reduce his need for spousal support. The family law court denied Belousoff’s request for modification after finding that McConnell and his girlfriend divided their contributions to household expenses under a written agreement in good faith, McConnell’s needs had not decreased, and McConnell had not suppressed a meaningful contribution from his cohabitant in order to show a continued need for support. On appeal, Belousoff contends that section 4323 requires the family law court to modify or terminate spousal support based on cohabitation, and McConnell failed to meet his burden because his evidence was not credible.

Ambulnz Health, LLC agreed to buy the assets of Americare Medservices, Inc. Both companies are in the medical transportation business. The asset purchase agreement included a provision requiring Ambulnz and Americare to arbitrate any dispute arising between the parties to the agreement. Americare’s chief executive officer and sole shareholder, Michael S. Summers, separately agreed to and signed, in his individual capacity, two specific provisions of the agreement prohibiting him from negotiating with anyone else to sell Americare’s assets and from competing with Ambulnz or soliciting Ambulnz’s employees and clients after the sale. Summers did not sign, and was not a party to, the arbitration provision.
After a dispute arose, Ambulnz filed a lawsuit asserting claims against Americare and Summers. Ambulnz filed a motion to compel both Americare and Summers to arbitrate those claims, which Summers (but not Americare) opposed.

After defendant and respondent LSCD4635, Inc. (LSCD or the judgment creditor) obtained a judgment in its favor and against Meditech Laboratories, Inc. (Meditech), it moved to amend the judgment pursuant to Code of Civil Procedure section 187 to add appellant Business Services of America, Inc. (BSA or the judgment debtor) as a judgment debtor. The trial court granted LSCD’s motion. In so doing, it overruled all of BSA’s evidentiary objections to LSCD’s evidence pursuant to California Rules of Court, rule 3.1354(c) (rule 3.1354). BSA appeals, arguing that the trial court committed prejudicial error in overruling its evidentiary objections.
We agree with BSA that the trial court erred in relying upon rule 3.1354 when it overruled BSA’s objections to evidence. But, BSA has not demonstrated on appeal that this error was prejudicial. Accordingly, we affirm.

A jury found Dario Alfaro guilty of willful, deliberate, and premeditated attempted murder with true findings on gang and principal gun use allegations. He appealed, contending there was insufficient evidence to support the premeditation finding and that the jury was misinstructed on that issue. After we filed an opinion rejecting those contentions and affirming the judgment, Assembly Bill Nos. 333 (2021–2022 Reg. Sess.) (Stats.2021, ch. 699) and 518 (2021–2022 Reg. Sess.) (Stats.2021, ch. 441) took effect. Assembly Bill No. 333 amended the gang enhancement statute, Penal Code section 186.22, while Assembly Bill No. 518 amended section 654. Alfaro filed a petition for rehearing raising those new laws, we granted the petition, and we now find that he is entitled to the benefit of those new laws. Accordingly, we remand the matter.

Timothy Andrew Chandler was charged with misdemeanor driving under the influence. Effective January 1, 2021, the Legislature enacted a new law, Penal Code section 1001.95, making defendants charged with misdemeanors generally eligible for diversion at the discretion of the trial judge. The law expressly exempts several offenses from eligibility for diversion, but driving under the influence is not one of them. An older law, however, Vehicle Code section 23640, provides that those charged with driving under the influence (DUI) are categorically ineligible for diversion.
Chandler filed a petition for misdemeanor diversion under section 1001.95, arguing that section 1001.95 superseded Vehicle Code section 23640 with respect to misdemeanor DUIs. After his petition was denied in the trial court, Chandler filed a petition for writ of mandate in this court, asking us to direct the trial court to vacate its order denying his petition for diversion and grant it instead.