CA Unpub Decisions

Appellant John Martin Torales committed a series of armed robberies between June 17, 2015, and July 2, 2015, with Estevan Gomez. Gomez was fatally shot by police during the course of his arrest. Torales was convicted by jury of multiple counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)); second degree robbery (§ 211); conspiracy to commit robbery (§§ 182, subd. (a)(1), 211); conspiracy to commit assault with a deadly weapon (§§ 182, subd. (a)(1), 245, subd. (b)); and attempted robbery (§§ 664/211). In addition, enhancements were found true for the personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (e)(1)); the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); the commission of a prior serious felony (§ 667, subd. (a)); serving a prior prison term (§ 667.5, subd. (b)); and suffering a prior strike conviction within the meaning of the Three Stri

Brittany R. (mother) appeals from the juvenile court’s order taking jurisdiction over her 15-year-old daughter Taylor M. under Welfare and Institutions Code section 300, subdivisions (c) and (g), based upon several allegations: that the child was suffering serious emotional damage; that mother was unable to provide for Taylor’s special needs without assistance and failed to ensure that she regularly received appropriate mental health treatment; and that she refused to provide or arrange ongoing mental health treatment, care, and supervision following Taylor’s discharge from a hospital after a psychiatric hold.
The juvenile court, however, also sustained an allegation that mother does not challenge on appeal: that pursuant to section 300, subdivision (b)(1), mother had a mental health disorder and aggressive outbursts that impaired her ability to parent Taylor during the child’s mental health crisis and placed her at risk of serious physical harm or illness. Further the court su

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed in part; reversed in part and remanded with directions.
James R. Bostwick, Jr., 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, Acting Assistant Attorney General, Paige B. Hazard and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tommy Glen Gonzales was convicted by a jury of assault by means likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).) He was sentenced to the upper term of four years and a consecutive term of three years for a great bodily injury enhancement. (§ 12022.7, subd. (a).) On appeal, Gonzales contends he is entitled to remand for resentencing under Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567), effective January 1, 2022, which requires the trial court to impose

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In 2006, a jury found defendant Rosann Leite guilty of first degree murder (Pen. Code, § 187, subd (a)). The jury found true special circumstance allegations that defendant was lying in wait with the intent to kill the victim (§ 190.2, subd. (a)(15)) and that defendant engaged in torture with the intent to kill (§ 190.2, subd. (a)(18)).
Defendant filed a petition under section 1170.95 to have her murder conviction vacated and to be resentenced. The prosecutor filed an opposition to the petition, arguing that the special circumstance findings rendered defendant ineligible for resentencing as a matter of law and requesting dismissal of the petition. Defense counsel filed a reply, arguing a prima facie case had been made. The trial court denied the petition, finding defendant ineligible for resentencing based on its review of the record of conviction, including the prior appellate opinion, the

Defendant Sean Michael Vasko appeals the trial court’s judgment sentencing him to two years of local prison time for felony firearm concealment. He contends the trial court prejudicially erred when it failed to instruct the jury on the elements necessary to elevate the punishment for his firearm concealment conviction to a wobbler offense, but nonetheless sentenced him to the elevated term in violation of the federal Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435]. In light of this error, defendant requests we modify the judgment to reduce this conviction to a misdemeanor and remand his case for resentencing. The People agree the trial court prejudicially erred requiring the requested relief. We concur with the parties, and accordingly, will modify the judgment as requested and remand for resentencing.

Defendant John Jeremy Cheso appeals from a conviction for attempted second degree robbery following a court trial. Defendant contends, and the People agree, that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial because the trial court did not adequately advise him of his rights under the Sixth and Fourteenth Amendments. We will reverse the judgment.

This appeal arises from the trial court’s dismissal of defendant Ladon Bowden’s motion for relief under Penal Code section 1473.6, which allows a noncustodial defendant to move to vacate a judgment of conviction based on newly discovered evidence under specified circumstances. 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 subsequently filed a supplemental brief. After reviewing defendant’s claims, we affirm the order of dismissal.

Appointed counsel for defendant, Aaron Thomas Simmons, 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.) Thereafter, defendant filed two supplemental briefs. We also requested supplemental briefing on (1) the applicability of Senate Bill No. 567 (2021-2022 Reg. Sess.), Assembly Bill No. 124 (2021-2022 Reg. Sess.) and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) to this case, and (2) the inconsistencies between the fines and fees orally imposed by the court and reflected in the minute orders. Having reviewed defendant’s arguments, the supplemental briefing, and the record as required by Wende, we will remand the matter to allow the trial court to select a sentence in light of the changes brought about by this new legislation. As to the fines and fees, we shall direct the trial court to correct clerical errors. In all other respects

Defendant Shane Michael Warner was found guilty of assault with a semiautomatic firearm and attempted voluntary manslaughter. In conjunction with these convictions, enhancements were found true, and sentences were imposed for the personal use of a firearm and personal infliction of great bodily injury. While defendant’s first appeal was pending, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682) (Senate Bill 620). We rejected the majority of defendant’s arguments on appeal; however, we remanded the matter for the trial court to decide whether to exercise its newly bestowed discretion to strike the firearm enhancement. After a hearing on remand, the trial court declined to strike the enhancement. Defendant appeals, claiming the trial court failed to adequately consider his postconviction activities. While this appeal was pending, the Governor signed Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695) (Assembly Bill 124) and Sena

Defendant Jovan Felix appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95 (statutory section citations that follow are to the Penal Code), enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). He argues his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory is eligible for relief under section 1170.95; and, if the conviction is not eligible for relief, then section 1170.95 violates equal protection principles.
Following the close of briefing, but before an opinion was issued in this case, the Governor approved Senate Bill No. 775 (Stats. 2021, ch. 551, § 2 (Senate Bill 775)). This legislation, which took effect on January 1, 2022, amends section 1170.95 to permit certain persons convicted of attempted murder to seek relief. (Cal. Const., art. IV, § 8; Sen. Bill 775, Stats. 2021, ch. 551, § 2.) Accordingly, we requested the parties file supplemental briefs

A jury found defendant Aaron Robert Moore guilty of four counts of attempted premeditated murder, three counts of shooting at an inhabited dwelling or occupied vehicle, and assault with a firearm related to two driveby shootings he committed a week apart. As to each of those counts of conviction, the jury found true that defendant committed those offenses for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1), (4) & (5).) The jury also found true multiple firearm enhancements. Relating to a separate incident, the jury found defendant guilty of carrying a concealed and unregistered firearm in a vehicle.
On appeal, defendant contends the evidence is insufficient to support the jury’s finding regarding the gang enhancements. He also raises claims related to his sentencing, which, as we explain post, we need not and do no

These related dependency matters involve claims by various parties challenging the juvenile court’s orders removing the two minors from the parents’ care and custody, denying placement of the minors with the paternal great-aunt, and extending reunification services to the parents. (Welf. & Inst. Code, §§ 361, 361.3, 395.) The final brief was filed in these consolidated cases in June 2021.
In case No. C091040, L.B., father of the minors (father), contends the juvenile court improperly removed the children from their parents’ care and denied placement with the paternal great-aunt. The San Joaquin County Human Services Agency (Agency) counters that there was substantial evidence to support the juvenile court’s removal order. The Agency further argues the parents lack standing to challenge the juvenile court’s placement order and, in any event, the juvenile court did not abuse its discretion in denying placement with the paternal great-aunt.
In consolidated case Nos. C092447 and

Defendant Richard Allen Butler, Jr., appeals the trial court’s denial of two California Department of Corrections and Rehabilitation’s (Department) recommendations under Penal Code section 1170, subdivision (d)(1) (section 1170(d)(1)), recommending that the trial court consider recalling the commitments for defendant’s 1995 first degree murder conviction (C090410) and his 2005 assault with a deadly weapon conviction (C092415) and resentencing him. On our own motion, we consolidated the appeals for purposes of oral argument and decision.
In case No. C090410 (murder), defendant contends the trial court’s denial of the recommendation: (1) violated his due process rights and the legislative intent of the statute by failing to weigh postconviction factors or, in the alternative, failing to articulate a nexus that his continued incarceration is in the interest of justice; and (2) violated due process by failing to appoint counsel. In case No. C092415 (assault), defendant contends the

Ann Simons appeals an order granting attorney fees to the Enterprise, Gilad Lumer, Harry Lumer, Nathan Rubin, and David Wank (collectively, Enterprise) after Enterprise prevailed in a proceeding to confirm an arbitration award. Simons contends that the trial court abused its discretion by granting attorney fees because there was insufficient evidence to support a lodestar analysis. She further contends that the trial court lacked jurisdiction to issue the order and therefore the order should be vacated. We treat the appeal as a petition for an extraordinary writ and deny relief.