CA Unpub Decisions

Appointed counsel for defendant Stoney Allen Anderson filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We ordered supplemental briefing regarding two perceived sentencing errors; the parties agree in their briefing that the record evinces errors and that the case should be remanded with directions to the trial court to rectify these errors. Accordingly, we will remand the case for resentencing with directions and otherwise affirm the judgment.

Defendant Marcel Damien Reed pleaded no contest to evading a police officer and the trial court placed him on probation for two years. Defendant objects to two conditions of probation: (1) prohibiting him from the use or possession marijuana; and (2) requiring him to submit to chemical testing at any time. He further argues the trial court imposed an invalid administrative fee. We shall direct the court to impose appropriately tailored conditions and vacate the administrative fee.

The California Department of Transportation (CalTrans), acting through the Department of General Services (DGS), solicited bids for brush and tree chippers and training, repair, and associated services. Garvey Equipment Company (Garvey) and RKU Distributing, Inc. (RKU) submitted bids. The contracts were awarded to RKU. Garvey then sued DGS, CalTrans, and later the Controller’s Office, to obtain a judicial declaration that RKU contracted to provide chippers with certain features and services using its own workforce, and the State has the right to recover monies paid to RKU for chippers and services that differed from what was required under the contracts. Garvey also sought to enjoin the State from paying RKU for chippers and services that differed from what was required under the contracts and to require RKU to repay all monies it received for non-compliant chippers and services. The trial court granted motions by DGS and RKU for summary judgment and summary adjudication.

After homeowners in a Sacramento County residential development won a judgment against the developer of their homes for over $4 million, they sued Steadfast Insurance Company (Steadfast), the developer’s insurer, alleging Steadfast had a duty to defend and indemnify the developer in the underlying lawsuit, and that, as judgment creditors and assignees of the developer, homeowners were entitled to recover from Steadfast. The trial court entered summary judgment in favor of Steadfast, ruling the company had no duty to defend or indemnify the developer in the underlying lawsuit because the developer never paid the “self-insured retention” (also known as an SIR), a condition precedent to Steadfast’s obligations to the developer under a Home Builders Protective Insurance Policy (the policy). On appeal, homeowners argue satisfaction of the self-insured retention was not a condition precedent.

The superior court granted the petition filed by Merton R. Davies, Rosemary Lemmis, Shahab Raphaely and the Davies Lemmis Raphael Law Corporation (collectively Davies parties) to confirm an arbitration award dismissing the investment fraud and legal malpractice claims of Thomas Ahern and Amlap Ahern, LLC (collectively Ahern parties) as barred by governing statutes of limitations; denied the Ahern parties’ petition to vacate or correct the award; and entered judgment in favor of the Davies parties on November 25, 2020. The arbitration was conducted pursuant to the arbitration provisions in cotenancy agreements between BH & Sons, LLC, on the one hand, and tenant in common investors, including Amlap Ahern, LLC, on the other hand, who had purchased interests in improved real property in Anaheim (the Amlap property) and San Diego (the Aerovault property).

The superior court granted the petition filed by Merton R. Davies and the Davies Lemmis Raphael Law Corporation (collectively Davies parties) to confirm an arbitration award dismissing the investment fraud and legal malpractice claims of Amlap ST, LLC and Superstition Lookout Delaware, LLC (collectively Amlap investors) as barred by governing statutes of limitations; denied the Amlap investors’ petition to vacate or correct the award; and entered judgment in favor of the Davies parties. The arbitration was conducted pursuant to the arbitration provision in the cotenancy agreement between BH & Sons, LLC, on the one hand, and tenant in common investors in commercial property located on East La Palma Avenue in Anaheim (the Amlap property), including Amlap ST, on the other hand.

The superior court granted the petition filed by Asset Management Consultants, Inc. (AMC), BH & Sons, LLC, James R. Hopper and Gloria Hopper (collectively BH parties) and Kevin Hopper (K. Hopper) to confirm an arbitration award dismissing the investment fraud claims of Amlap ST, LLC and Superstition Lookout Delaware, LLC (collectively Amlap investors) as barred by governing statutes of limitations; denied the Amlap investors’ petition to vacate or correct the award; and entered judgment in favor of the BH parties and K. Hopper. The arbitration was conducted pursuant to the arbitration provision in the cotenancy agreement between BH & Sons, on the one hand, and tenant in common investors in commercial property located on East La Palma Avenue in Anaheim (the Amlap property), including Amlap ST, on the other hand.

In 1992, a trial jury convicted defendant and appellant Robbin Machuca (defendant), and three accomplices, of three counts of first degree murder and numerous other offenses, including one count of conspiracy to commit murder. It is undisputed that defendant was not the actual killer of the three victims, and that the trial jury was instructed on principles of felony murder and murder liability under the natural and probable consequences doctrine. Years later, in 2019, defendant petitioned for resentencing under Penal Code section 1170.95. After first appointing counsel for defendant, the trial court denied section 1170.95 relief without issuing an order to show cause, concluding defendant was ineligible for relief as a matter of law because if she “were to be tried today, it is this court’s opinion that she would be found guilty of [m]urder on both [f]elony [m]urder and [c]onspiracy theories.”

We remand this case with directions to the superior court to determine whether appellant Mike Taituave, convicted in 2010 among other offenses of five counts of attempted murder, should be resentenced under the provisions of Senate Bill No. 775 (Stats. 2021, ch. 551 (SB 775)). SB 775, effective January 1, 2022, extends the provisions of Penal Code section 1170.95 (section 1170.95) to persons convicted of attempted murder under the natural and probable consequences doctrine. Prior to January 1, 2022, section 1170.95 was limited to persons convicted of first or second degree murder.

A jury convicted defendant Eduardo Sandoval (defendant) of murdering a fellow member of the Rancho San Pedro criminal street gang, albeit one who belonged to a different clique or subset of the gang. The jury found true an enhancement alleging the killing was gang related. (Pen. Code, § 186.22, subd. (b)(1).) We consider whether the jury’s gang enhancement finding is supported by substantial evidence.

Gregory Logan, convicted in 1990 of first degree murder and second degree robbery, appealed the superior court’s order denying his petition for resentencing under Penal Code section 1170.95 after the court found he could still be convicted of murder notwithstanding the changes to the definition of the crime effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). We reversed the order and remanded the case for a new evidentiary hearing, agreeing with Logan that the court appeared to have applied an incorrect standard of proof and, in addition, failed to find he acted during the robbery with reckless indifference to human life within the meaning of People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), as now required to be convicted of felony murder under section 189, subdivision (e)(3).

The Icon at Panorama, LLC (Icon) proposed a mixed-use commercial and residential development in the Panorama City neighborhood of Los Angeles, to be called The Icon at Panorama. The City of Los Angeles (City) certified a final environmental impact report (FEIR) and approved the project. Southwest Regional Council of Carpenters and Laborers’ International Union of North America, Local 300 (collectively, Petitioners), challenged the approval, principally arguing the City approved a project not described in the draft or final environmental impact reports.

Years ago, a trial jury found Milton Cummings III (defendant) guilty of murder and found true a special circumstance allegation, which triggered a life without parole sentence. More recently, defendant filed a petition to vacate his murder conviction in light of amendments Senate Bill No. 1437 (2017-2018 Reg. Sess.) made to the Penal Code’s murder statutes. The trial court summarily denied the petition without first appointing counsel, relying on this court’s prior holding that the jury was told it must find defendant intended to kill the murder victim in order to find the special circumstance true. We initially affirmed, but our Supreme Court granted review and transferred the matter back to us with instructions to vacate our opinion and reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Our prior opinion is hereby vacated, and the dispositive question that we now decide is whether the failure to appoint counsel for defendant was harmless.

After an 18-month review hearing, the juvenile court found that five-year-old Layla R. was at substantial risk of detriment if returned to her mother’s custody. (Welf. & Inst. Code, § 366.22, subd. (a)(1).) Diana S. (Mother) appeals from that order, challenging the sufficiency of the evidence to support the juvenile court’s finding. We affirm.