CA Unpub Decisions

Appellant Ramon Padilla was sentenced to prison for 25 years to life after a jury found him guilty of first degree murder and conspiracy to commit that offense. Although we long ago affirmed the judgment on appeal (see People v. Nottage, et al. (Mar. 10, 1998, G018824) [nonpub. opn.]), appellant contends the trial court erred in denying his recent petition for resentencing under Penal Code section 1170.95. As respondent concedes, the contention has merit. We therefore reverse the trial court’s denial order and remand for further proceedings.

Scott Earl Rembert appeals from the trial court’s postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95. The court concluded a person convicted of murder with a special circumstance before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), is barred from pursuing resentencing. We disagree. Because the record of conviction does not establish Rembert’s ineligibility for resentencing as a matter of law, we reverse the postjudgment order denying the petition and remand the matter with directions to issue an order to show cause (OSC) and to proceed in accordance with Penal Code section 1170.95, subdivision (d).

Brian C. (father) appeals from an order terminating parental rights to his one year old son, Robert C., under Welfare and Institutions Code section 366.26. Father contends the juvenile court committed reversible error by relying on findings in a prior dependency case to conclude that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; (ICWA)) did not apply without proper inquiry. S.L., Robert’s mother (mother), joins. Respondent concedes the juvenile court may have erred and proposes a conditional reversal to ensure ICWA compliance. We affirm.

Appellant and defendant Martin Abel Simentel was convicted by a jury of assault with a deadly weapon and two misdemeanor drug charges. On appeal, defendant claims that the judge’s comments during voir dire regarding a defendant’s right to not testify were prejudicial and infringed on his right to remain silent. We find no violation of defendant’s Fifth Amendment rights occurred as a result of the trial court’s comments and affirm the judgment of the trial court.

Defendant Kelvin Jones was convicted of one count of inflicting corporal injury upon a spouse. In his appeal, defendant contends (1) the trial court erred in admitting evidence of an uncharged domestic violence incident in violation of Evidence Code sections 352 and 1109, and (2) he was entitled to a hearing on his ability to pay before certain fees were imposed at sentencing. Following the passage of Senate Bill No. 567 (Reg. Sess. 2021–2022) (Senate Bill 567), which made changes to Penal Code section 1170, defendant now asks this court to remand his case to the trial court for a reconsideration of his sentence. After addressing the issues raised in this appeal, we affirm defendant’s conviction, but remand with instructions to vacate the current sentence and resentence defendant in this matter.

The District Attorney of Kern County filed an amended information on January 10, 2018, charging defendant Robert John Vaughn with vandalism involving at least $400 (Pen. Code, § 594, subd. (b)(1); count 1) and second degree burglary (§ 460, subd. (b); count 2). As to both counts, the amended information alleged defendant committed the offenses while on bail in another case (§ 12022.1), had a prior serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and served six prior prison terms (former § 667.5, subd. (b)). Defendant pleaded not guilty.

Defendant and appellant A.V. (Father) appeals the termination of his parental rights to G.V. (Minor) at a Welfare and Institutions Code section 366.26 hearing. Father contends the juvenile court erred by (1) refusing to grant his request for a continuance of the section 366.26 hearing so that he could be present; and (2) the juvenile court’s ruling that the Indian Child Welfare Act (ICWA) did not apply must be reversed for the failure of plaintiff and respondent San Bernardino County Children and Family Services (the Department) to adequately perform its initially duty of inquiry about Indian ancestry to determine whether Minor was an Indian child.

C.O., mother of the minor A.O. (minor), appeals from the juvenile court’s orders terminating dependency jurisdiction, awarding custody of the minor to B.E. (father), and ordering no visitation between mother and the minor. (Welf. & Inst. Code, §§ 300, 362.4, 395.) Mother contends the juvenile court’s visitation exit order was not supported by substantial evidence. We affirm the juvenile court’s orders.

This appeal arises from the trial court’s denial of defendant Isabel Avila’s Penal Code section 1001.36 postconviction request for mental health diversion. Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will dismiss the appeal.

Father of the minor N.G. appeals from the juvenile court’s March 8, 2021, order terminating his reunification services and setting a permanency review hearing. (Welf. & Inst. Code, § 366.21, subds. (e) & (f).) Father contends reversal is required because the court failed to provide him with (1) timely and valid notice of the March 2021 hearing and (2) a copy of the status report. We will affirm the juvenile court’s orders.

In this appeal, we address an exception to a criminal defendant’s right to confront witnesses, the doctrine of forfeiture by wrongdoing. Defendant Kenneth Lequiez Hawkins was Sarah Doe’s pimp. He was arrested shortly after an incident in which he beat her and forced her to go into a vehicle and perform oral sex on a man. Doe gave two statements to the Sacramento police inculpating defendant. When she failed to appear, the trial court, over defendant’s objection, granted the prosecution’s motion to admit her two statements to a police officer and a detective, finding the forfeiture by wrongdoing exception applied because defendant had facilitated Doe’s failure to appear.

A jury found defendant Marlin Juan Pierson guilty of first degree burglary. The trial court sentenced him to 25 years to life under the Three Strikes law. On appeal, defendant claims his conviction for burglary should be reversed because there was insufficient evidence, independent of accomplice testimony, to tie him to the offense. He also argues that the trial court erred in denying his motion to dismiss his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm

In 2005, a jury found defendant Jimmy Chi Cooc guilty of first degree murder and found true he was a principal in the crime and one of the principals in the crime was armed with a firearm. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95, arguing the trial court improperly conducted a factual analysis 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 Juan Manuel Hernandez appeals the trial court’s denial of his postjudgment petition to recall his previously imposed and agreed-upon sentence of 21 years 4 months and resentence him pursuant to Penal Code section 1170.91. Recognizing the trial court based that denial on People v. King (2020) 52 Cal.App.5th 783 (King), defendant challenges that decision as well as People v. Brooks (2020) 58 Cal.App.5th 1099 (Brooks), which similarly rejected section 1170.91’s application to individuals serving stipulated sentences reached as the result of plea agreements. Because we agree with these authorities, we affirm the trial court’s denial.