CA Unpub Decisions

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Remanded with instructions.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Andrew Mestman, and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Tiffany Nicole Burney contends that this court must remand this case for resentencing to allow the trial court to exercise its new discretion to possibly select an uncharged, lesser firearm enhancement as explained by the California Supreme Court in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). Additionally, Burney contends, and the Attorney General agrees, that pursuant to Assembly Bill No. 1869 (Assembly Bill 1869), as of July 1, 2021, Burney is no longer required to pay a $154 criminal justice administrative fee.

In July 2020, Carol filed a petition in this case under Probate Code section 17200 seeking an order clarifying the parties’ rights under Andrew’s estate planning documents. We summarize Carol’s allegations as follows.
1. Interested Parties and Estate Planning Documents
Andrew married Carol’s mother in 1950 when Carol was three years old. Andrew raised Carol as his daughter, and helped her when she became a single mother with the raising of her daughter, Staci. Carol’s mother died in 2006.
Carolyn and Debbie are Andrew’s nieces.
On October 18, 2007, Andrew executed the following estate planning documents: (1) a last will and testament, which named Carol the executor; (2) a revocable trust (the Trust), which held title to Andrew’s main asset (a condominium unit) and which designated Andrew the original trustee, and Carol the successor trustee and primary beneficiary; (3) a power of attorney designating Carol his attorney in fact;

Gallegos is Hispanic and since the age of 13 has been a member of El Monte Flores, a Hispanic criminal street gang that “targets” African Americans. Gallegos’s sister, Britney, had been dating Ron for several weeks when Gallegos arrived in town. Gallegos “hated” Ron because he was African American; he did not like that Britney was dating “ ‘a black guy.’ ”
A few weeks before killing Ron, Gallegos told a fellow attendee at an Alcoholics Anonymous meeting that stabbing a person in the middle of the chest was a quick method of killing. He also talked about having to “get his hands dirty before and said something about ‘pinche mayates.’ ”
In October 2014 after smoking methamphetamine, Gallegos and a friend walked to a neighborhood market where Britney and Ron were buying cigarettes and soda. Martina, an African American friend of Britney’s, was also there. As the five of them were walking away from the market, Martina stumbled.

Briggs ran against incumbent City Attorney Mara W. Elliott in the 2020 general election. On August 7, 2020, months before the November 3d general election, Elliott filed a petition for a writ of mandate, naming the San Diego City Clerk and the San Diego County Registrar of Voters as respondents but Briggs as the real party in interest and defendant. The petition was aimed at two alleged wrongs. First, Briggs listed his profession as “ATTORNEY/TAXPAYER ADVOCATE” in his ballot designation, which Elliott claimed was “false, misleading, or inconsistent with the provisions of law.” Second, Elliott claimed Briggs’s statement of economic interests (Form 700) inaccurately listed three public entities as his sources of income. The first three causes of action in the petition were focused on the former alleged wrong while the last three causes of action concerned the latter.

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed and remanded with directions.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Eric Lewis Tyler entered into a plea agreement under which he pleaded guilty to one count of arson (Pen. Code, § 451 subd. (d)). Tyler also admitted one serious felony prior conviction (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)). The plea agreement included a stipulated sentence of 11 years. The agreed sentence was comprised of the upper term of three years for arson, doubled by the strike prior plus five years for the serious felony prior. The remaining charges were to be dismissed.

On June 8, 2000, Thomas filed a petition for legal separation from Lorin (Super. Ct. San Diego County, 2020, No. D459749). In his sworn petition, Thomas asked the family court to confirm separate property assets and debts, and stated that community and quasi-community assets and debts had been disposed of by a May 26, 2000 separation agreement (the May 2000 separation agreement). On the same day, Thomas filed a Judicial Council form entitled “Appearance, Stipulations, and Waivers,” signed on May 30, 2000, by both parties, who were representing themselves. In the appearance, stipulations and waivers form, the parties asserted, among other things, that “Respondent [Lorin] makes a general appearance.” The court issued a family law summons at the same time.
Several days later, Thomas filed the summons as well as a declaration pertaining to his service of a declaration of disclosure and his income and expense declaration.

While searching defendant’s car, deputy sheriffs found a handgun and ammunition. Defendant had been previously convicted of a felony. The prosecution charged defendant with one count of unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and one count of unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1)).
Defendant filed a motion to suppress the evidence obtained in the detention and search of his car under section 1538.5. At the hearing on the motion, a deputy sheriff testified he stopped defendant’s car because the car did not have a front license plate, a violation of Vehicle Code section 5200, subdivision (a). While speaking with defendant, he saw an open beer container in the center console and asked defendant to step out of the car. Defendant first refused to get out of the car, but relented after the deputy opened the door and summoned additional deputies.

A jury found defendant guilty of second degree robbery (Pen. Code, § 211) and found true a firearm enhancement (§ 12022, subd. (a)(1)), a prior serious felony conviction (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). (People v. Roberson (Mar. 17, 2021, C090181) [nonpub. opn.]). On July 31, 2019, defendant was sentenced to the middle term of three years for robbery, doubled for the prior strike, five years for the prior serious felony conviction, and one year for each of the three prior prison terms. (Ibid.) The trial court also resentenced defendant on a prior conviction to: “one-third the middle term of eight months (§ 29800), doubled due to his prior strike conviction; and plus one-third the middle term of eight months (§ 30305), doubled due to his prior strike conviction, both to run consecutive to the sentence in the instant case.” (Ibid.)

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.) Defendant filed a supplemental brief reprising his arguments that his “restitution fine” should be waived or modified. From what we can discern, defendant also argues counsel was ineffective in advising him about, and preserving his challenge to, the fines.
Defendant, however, has appealed from a nonappealable order, as the trial court lacked jurisdiction to modify defendant’s sentence in his long-final judgment. “The general rule is that ‘once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.'

Appointed counsel for defendant Kosal Hom asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
On September 24, 2019, M.M. obtained a domestic violence restraining order protecting her from defendant. The following day, defendant broke into M.M.’s home using a “knife or tool.” Defendant repeatedly told M.M. to “drop the restraining order.” He also said, “ ‘I’ve been plotting to kill you all day.’ ” M.M. persuaded defendant to put the weapon down and he put it in his pocket. A neighbor heard the commotion and called 911.
When law enforcement arrived, they announced themselves while knocking on the front door.

Defendant pleaded no contest to first degree burglary (§§ 459, 461, subd. (a), Yuba County Super. Ct. case No. CRF20-1377) and taking a vehicle without consent (Veh. Code, § 10851, Yuba County Super. Ct. case No. CRF20-761). For the burglary charge, the parties stipulated that defendant forcibly entered and stole items from the residence of his aunt. For the taking a vehicle without consent charge, the parties stipulated that defendant took and drove a vehicle valued at over $1,000 without the permission of its owner. As part of the negotiated plea, defendant also admitted a prior serious felony conviction.
The plea agreement incorporated a Cruz waiver, permitting defendant’s release on his own recognizance pending sentencing.

A January 2021 information, filed after a preliminary hearing, charged defendant with two offenses: possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2). Specifically, the information alleged that: (1) on December 26, 2020, having previously been convicted of a felony, defendant possessed a “Ruger .22 revolver” in Siskiyou County; and (2) on the same date and in the same county, defendant “own[ed], possess[ed], and ha[d] under [h]is control ammunition.”
The following facts emerged at trial. Around 5:00 p.m. on December 26, 2020, a Siskiyou County reserve deputy sheriff was in civilian clothes and driving his car when he saw defendant walking on a road with a woman and a dog. The reserve deputy was driving in the area because he had heard gunshots and wanted to “check it out to see what it was.”

In March 2017, defendant pled no contest to drug possession and identity theft in Butte County and admitted two prior narcotics-related convictions for violating Health and Safety Code sections 11378 and 11383.5. The Butte County Superior Court sentenced defendant to a stipulated county prison term of nine years eight months, including the upper term of three years for the drug possession offense, plus two consecutive three-year enhancements for the prior narcotics-related convictions, plus a consecutive eight-month term (one-third of the middle term) for the identity theft offense.
The following year, in March 2018, defendant pled guilty to reckless driving with the intent to evade a peace officer in Glenn County. In April 2018, the Glenn County Superior Court resentenced defendant in both cases under section 1170.1, imposing a consecutive sentence of eight months (one-third of the middle term) for the new offense, resulting in a new aggregate sentence of 10 years four months.

Valson filed a complaint against CDCR for conversion, theft, and violation of constitutional rights. He alleged that in September 2019, CDCR unlawfully took his idea called Recreational Experiment Created For Effective Social Success (Recess). He sought recovery of his property and compensatory and punitive damages.
After Valson filed a first amended complaint, CDCR demurred. On December 30, 2019, the trial court filed an order sustaining the demurrer without leave to amend and a judgment in favor of CDCR and against Valson. On January 6, 2020, CDCR filed and served by mail on Valson a notice of entry of the demurrer order and a notice of entry of judgment.
Valson filed a motion to set aside and vacate the judgment pursuant to section 663 on January 21, 2020.