CA Unpub Decisions

Defendant Frank Duarte pled guilty to being a felon in possession of a firearm and possession of an assault weapon. He contends on appeal that (1) the warrantless search of his vehicle that led to the discovery of the firearm was unlawful because it was unsupported by probable cause and no exception to the warrant requirement applied, and (2) the fees imposed pursuant to former Penal Code section 1465.9 and former Government Code section 29550.2 must be vacated as unenforceable and uncollectable pursuant to Assembly Bill No. 1869 (2019−2020 Reg. Sess.) (Assembly Bill 1869). The People disagree on the first issue, arguing that the search was supported by probable cause and exceptions to the warrant requirement. However, the People agree that defendant is entitled to the benefit of Assembly Bill 1869. We vacate the portion of the sentence imposing fees pursuant to former section 1465.9 and former Government Code section 29550.2. In all other respects, we affirm.

Appellant James Clinton Davies surreptitiously recorded a conversation he had with his local police chief while they were in the chief’s office. A police lieutenant was also present, and appellant discussed his own uncharged criminal matter with the chief. Unbeknownst to the officers, appellant recorded the conversation as a video on his cellular phone. A short time later, appellant posted the video on Facebook.
A jury convicted appellant of recording a “confidential communication” in violation of Penal Code section 632, subdivision (a). Following this felony conviction, appellant was placed on formal probation for three years.
Appellant raises a number of issues in the present appeal, including alleged instructional errors and a violation of his rights under the First Amendment of the United States Constitution. We agree with appellant that multiple prejudicial instructional errors occurred, which require reversal of his judgment. The court did not make it clear that, in order

In 2012, Lester Daniel Chavez pled no contest to carjacking and admitted various enhancements including four prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to serve 18 years in prison. Seven years later, he moved to vacate the sentence and argued the court erroneously limited his custodial credits earned to 15 percent pursuant to section 2933.1. The trial court denied the motion.
On appeal, Chavez now argues the Legislature’s interim enactment of Senate Bill No. 136 (2019-2020 Reg. Sess., § 1) (SB 136) to eliminate most prior prison term enhancements applies to his case retroactively. He claims denying it retroactivity to cases final on appeal denies him equal protection under the law.
We conclude the appeal was taken from a nonappealable order. Accordingly, we will dismiss the appeal.

Michael Beardsley was convicted of first degree murder after he killed his cellmate in prison. On appeal, he claims his counsel failed to object to certain irrelevant evidence. He also challenges specific fines and fees imposed as part of the sentence. Finding no prejudicial error, we affirm the judgment.

S.R. was removed from her biological parents shortly after birth in 2020. She was eventually placed with a family who had previously adopted one of her biological siblings. Two days before a scheduled permanency planning hearing pursuant to Welfare and Institutions Code section 366.26, S.R.’s paternal aunt and uncle, defendants and appellants B.G. and S.G., filed a petition pursuant to section 388 seeking placement of S.R. in their home. The juvenile court denied the request, and appellants appeal from this order, requesting that we reverse and remand for an evidentiary hearing on the relative placement preference set forth in section 361.3.
While this appeal was pending, the juvenile court held a continued permanency planning hearing pursuant to section 366.26, terminated the parental rights of S.R.’s biological parents, and selected a permanent plan of adoption for S.R. In light of these subsequent events, we conclude this court cannot grant appellants any effective relief by way

In 2015, defendant and respondent Mark Garrison (defendant) and plaintiffs and appellants Mary Jane Espiritu and Roberto Gerometta (collectively, plaintiffs) formed a business for the purpose of marketing and selling vegan foods. They named the business “ ‘Pivotal Foods, LLC’ ” (Pivotal) and agreed that plaintiffs would be responsible for the culinary aspects of Pivotal, while defendant would be responsible for the financial and business operations. As the business grew, plaintiffs made three capital contributions to Pivotal totaling $250,000. Defendant also made three capital contributions totaling that same amount, but he made his contributions at different times.
The parties disagreed about numerous issues regarding management of the business and began negotiations to end their business relationship in 2019. During the course of these negotiations, plaintiffs purportedly learned for the first time that defendant did not make his capital contributions to Pivotal at the same ti

Appellant R.S. (mother) appeals from findings and an order after hearing entered in November 2020 in which the family court, among other things, denied her request to modify custody of her and respondent father
M.N.’s two minor children and ordered that she pay $4,950 in Family Code section 271 sanctions. The court ordered the sanctions in part finding mother constantly attempted to relitigate and ask for court orders on the same issues, intending to harass father and causing unnecessary and burdensome litigation. In an opening brief with a dearth of record cites, mother contends: (1) the court abused its discretion by not considering what she claims is a history of abuse by M.N. before it made its custody determination; (2) the court erred by making a July 8, 2020 order without putting witnesses under oath; and (3) the court abused its discretion by imposing section 271 sanctions, which put an unreasonable financial burden on her. We affirm.

L.R. (Mother) appeals from an order granting a request from K.R. (Father) to modify custody and visitation orders pertaining to their 15-year-old minor child (the child). Mother contends the trial court erred by failing to consider whether Father had demonstrated a significant change in circumstances before modifying a final custody determination, entered pursuant to Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro). She further asserts Father presented insufficient evidence of changed circumstances to warrant modification or that the modification was in the child’s best interest. Mother also asserts the court erred by refusing to enforce the court’s prior order that the parents use a parenting coordinator.
We conclude the trial court’s order altered the parenting schedule but did not change custody and, thus, the court was not required to make a finding of changed circumstances. Finding Mother’s other contentions also lack merit, we affirm the order.

On appeal, Scarborough challenges the trial court’s decision to admit evidence of his prior act of elder abuse as propensity evidence under Evidence Code section 1109, subdivision (a)(2). Scarborough contends the prior act was not sufficiently similar to the current offense to warrant admission as propensity evidence. He further argues that even if the prior act were admissible, the trial court should not have allowed the prior victim to testify live, should not have allowed details of the prior incident, and should not have admitted photographs of the prior victim’s injuries. According to Scarborough, because the two incidents were not “particularly similar,” such evidence was improperly inflammatory, and its prejudicial effect outweighed its probative value. We conclude the trial court did not abuse its discretion in weighing the probative value of the evidence regarding the prior act against the risk of undue prejudice. (§ 352.) Accordingly, we affirm the judgment.

In 1993, Roy Lee Jackson pled guilty to second degree murder (Pen. Code, § 187, subd. (a)). The court sentenced Jackson to 15 years to life.
Jackson appealed, and we affirmed the judgment in an unpublished opinion, People v. Jackson, D020259 (Nov. 7, 1994) (Jackson I).
In 2019, he filed a petition for resentencing under section 1170.95, which permits a defendant convicted of murder under a felony-murder theory or the natural and probable consequences doctrine to petition for the conviction to be vacated and to be resentenced. (§ 1170.95, subd. (a).) The superior court assigned Jackson an attorney, concluded Jackson had met his prima facie burden, issued an order to show cause (OSC), and ordered an evidentiary hearing. Following the hearing, the court concluded the People had proved beyond a reasonable doubt that Jackson was a major participant in the underlying robbery who acted with reckless indifference to human life. Accordingly, it found Jackson ineligible for relief and denied

Defendants Folsom Investors, L.P. doing business as Empire Ranch Alzheimer’s Special Care Center; Folsom Group LLC; Jerry Erwin Associates, Inc., doing business as JEA Senior Living, Inc.; and Brian Pawloski appeal from an order denying their petition to compel arbitration of multiple causes of action in a complaint filed by plaintiffs Ronald Smith, Carrie Zenker, and Amorio Ferreira in their individual capacity and as successors in interest to decedent Carol McCormac. Defendants claim a power of attorney making Zenker the attorney-in-fact for decedent authorized her to execute an arbitration agreement compelling plaintiffs to arbitrate their claims. We agree and will reverse the trial court’s order denying the motion to compel, with the exception of the trial court’s conclusion regarding the absence of a delegation clause in the arbitration agreement, and we will remand the matter to the trial court for further proceedings.

Claude Rogers, a former resident of a residential care facility for the elderly known as Meadow Oaks of Roseville, died after experiencing heatstroke. His wife and successor-in-interest Kathryn and sons Jeffrey, Phillip and Richard sued Meadow Oaks of Roseville, Roseville SH, LLC, CPR/AR Roseville SH Owner, LLC, DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC, Westmont Living, Inc., Tanysha Borromeo, Ana Rojas, and Andrew Badoud for elder abuse, fraud, and wrongful death. Because members of the Rogers family share the same last name, we refer to them by their first names for clarity.
Roseville SH, LLC d/b/a Meadow Oaks of Roseville, DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC, Westmont Living, Inc., Tanysha Borromeo and Ana Rojas (hereafter defendants) appeal from an order denying their petition to compel plaintiffs to arbitrate their claims pursuant to an arbitration agreement that was part of the Residency Agreement Richard signed as Claude’s

A jury found defendant Donald George Clark guilty of three counts of murder and one count of arson. He was sentenced to, inter alia, two terms of life without the possibility of parole. On appeal, defendant contends the trial court erred in admitting his confessions because (1) his initial confession was obtained without Miranda warnings, and (2) his subsequent post-Miranda statements were obtained after the ineffective Miranda advisements.
We affirm.

Lenard Austin, Jr., who was convicted of attempted murder in 2001, appeals the summary denial of his petition for resentencing under Penal Code section 1170.95. In a November 2020 unpublished decision, we affirmed on the ground that relief under section 1170.95 was not available to those convicted of attempted murder rather than murder. (People v. Austin (Nov. 25, 2020, B301152) [nonpub. opn.].) Austin petitioned for review in the California Supreme Court. The court granted review and held the case along with numerous similar cases. While the matter was pending, the Governor signed into law Senate Bill No. 775 (Senate Bill 775), which amended section 1170.95 to expand eligibility for resentencing to persons convicted of attempted murder. (Stats. 2021, ch. 551.)
On December 22, 2021, the California Supreme Court transferred the case back to this court with directions to vacate our prior decision and reconsider the matter in light of Senate Bill 775. (People v. Austin (Dec. 22, 2021, S26