CA Unpub Decisions

A jury convicted defendant and appellant Joshua Neil Harrell of three felony counts of fraudulent possession of personal identification (Pen. Code, § 530.5, subd. (c)(2)). At sentencing, the trial court imposed an aggregate sentence of 12 years eight months and a $9,000 restitution fine. More than a year later and while his direct appeal was pending in this court, Harrell filed a motion in the trial court challenging the restitution fine on constitutional grounds pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court denied the motion, and Harrell appealed. We affirmed the denial; the pending appeal had divested the trial court of jurisdiction, and no exception applied. Following the remittitur in the direct appeal, Harrell filed a second motion to modify the restitution fine under Dueñas, which the trial court denied. Harrell appeals this second order. Because this order is nonappealable, we dismiss the appeal.

Joannie Fischer appeals from the denial of her request for attorney fees and costs as the prevailing party on the unsuccessful application of her former husband, David Fischer, for a protective order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6344). The question we must decide is whether Joannie’s request was barred by attorney fee provisions in a settlement and stipulated judgment in the parties’ dissolution action. As we will explain, we agree with Joannie that the evidence does not support the trial court’s conclusion that the parties’ agreement regarding use of community property funds for attorney fees in the dissolution action precluded Joannie’s attorney fees request under the DVPA. Accordingly, we reverse.

This is an appeal from judgment after a jury convicted defendant John Williams III of making criminal threats (count 1) and attempting to dissuade a witness from testifying (count 2). After defendant waived a jury trial on his prior felony convictions, the trial court found them to be true and sentenced him to the low term of 16 months on count 1, to run concurrently with the middle term of two years on count 2. Defendant appealed, and his counsel has now filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Counsel attests that defendant was notified of his right to file a supplemental brief; however, he waived this right. Having independently reviewed the record, we affirm.

In 2012, a jury convicted Rafael Meraz of first degree murder (Pen. Code, § 187, subd. (a)). The jury found that Meraz personally used a firearm causing bodily injury or death (§ 12022.53, subd. (d) & (e)(1)). Meraz was sentenced to an indeterminate term of 50 years to life in prison.
Meraz appealed, and this court affirmed his conviction in an unpublished opinion, People v. Aguon et al., D064367 (Nov. 29, 2016).
In 2020, Meraz filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, including the court file and the prior opinion of this court. The court held a hearing and denied the petition by written order. The court found Meraz had not made a prima facie case for relief and found he was not eligible for resentencing under section 1170.95. The court denied the petition without issuing an order to show cause (OSC).
Meraz appeals contending the court erred in denying his petition without first

Plaintiff Keith Davis alleges that his former employer Purple Mountain Empire X, LLC (PMEX) and its counsel Stephen Fitch committed fraud on the court to secure the dismissal of his 2012 sexual harassment lawsuit. Davis has asserted variations of this basic claim in multiple lawsuits filed over the years against PMEX, Fitch, and others, resulting in prior rulings adverse to Davis on demurrers and anti-SLAPP motions. Presented with another attempt, the trial court granted PMEX’s motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16 ), concluding Davis’s claims against PMEX arose from PMEX’s protected petitioning activity and lacked minimal merit given the litigation privilege and res judicata.
Addressing Davis’s appeal, we affirm the trial court’s sound analysis as to six of nine causes of action in Davis’s complaint, which rest on alleged litigation misconduct by PMEX and its counsel in prior court proceedings. We must reverse, however, as to the three e

Appointed counsel for appellant Jacob Andrew Martinez has filed a brief asking this court to review the record in two cases to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Martinez was advised of the right to file a supplemental brief but has not responded.
Our review of the record discloses errors that require correction. We conclude any unpaid portion of the criminal justice fee is unenforceable and uncollectible as of July 1, 2021, and must be vacated. We will modify the judgment to vacate the criminal justice administration fee and order a correction to a minute order. As modified, we affirm the judgment.

In 2007, defendant Uriel Alexander Luengas pleaded no contest to voluntary manslaughter, attempted second degree robbery, and conspiracy to commit robbery. He admitted he personally and intentionally discharged a firearm in the commission of the offense. The trial court imposed a term of 32 years eight months in state prison. In 2020, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) recommended to the trial court that it recall Luengas’s sentence and resentence him under section 1170, subdivision (d). The trial court declined to recall Luengas’s sentence on the ground he had entered into a stipulated sentence.
Luengas appeals from the trial court’s order declining to recall his sentence. He contends the court failed to exercise its statutory discretion to consider recalling the sentence notwithstanding that it was stipulated. The Attorney General, citing newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540

Appellant Eddie Criado appeals from a judgment entered upon resentencing after a prior appeal. In the prior appeal, this court directed the trial court to strike two, one-year prior prison term enhancements it had previously imposed (Pen. Code, § 667.5, subd. (b) (hereafter section 667.5(b) )) in light of Senate Bill No. 136 (Stats. 2019, ch. 590) (Senate Bill 136) and to resentence Criado. At his resentencing hearing in January 2021, the trial court struck the prior prison term enhancements and sentenced Criado to six years in state prison. The trial court’s decision at resentencing to impose the upper term on one of the crimes of conviction rather than the previously imposed middle term resulted in the same aggregate sentence it had previously imposed. On appeal, Criado contends the trial court abused its sentencing discretion and requests remand for resentencing.
Although Criado’s original briefing in this appeal argued the trial court erred under Senate Bill 136, both parties

Defendant Charles Michael Reynolds was convicted by a jury of felony murder and related offenses. Defendant’s subsequent Penal Code section 1170.95 petition to vacate his murder conviction and for resentencing was denied because the trial court determined defendant was ineligible for resentencing as a matter of law, citing the jury’s robbery-murder and street gang special circumstance findings. Defendant contends these special circumstance findings, which were made before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, do not render defendant ineligible for resentencing as a matter of law. We agree, and accordingly vacate the trial court’s order denying defendant’s petition and remand for a hearing on the merits.

This case involves a creditor’s claim filed by William Tyler Harden as trustee (Trustee) of the Exemption Sub-Trust of the Harden Family Trust (Trust), in the estate of the decedent in this matter, Michael R. Harden (Decedent). In summary, Trustee alleged Decedent, in his former capacity as trustee of the Trust, misappropriated assets from the trust and improperly transferred assets to Margaret M. Griffith. This appeal arises after a complicated series of procedural facts that are discussed in detail below. In essence, Trustee alleges the trial court improperly denied his motion to vacate based on excusable neglect by his trial counsel. His contentions have no merit, and we affirm the court’s judgment of dismissal.

Just after midnight, on the morning of June 25, 2016, defendant Demetrius Frank Bailey, Jr., entered the house he shared with his girlfriend and fired four shots at his girlfriend’s daughter and the daughter’s boyfriend, wounding the boyfriend in the leg, hip, and abdomen. After threatening to shoot them if they reported the incident to police, defendant ordered the victims from the house and, as they walked down the street, again threatened them not to contact the police. A jury convicted defendant of attempted murder, criminal threats of great bodily harm (two counts), assault with a firearm (two counts), and dissuading a witness by force or threat (two counts). The trial court sentenced defendant to a total term of 302 years to life in prison pursuant to the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
Defendant contends on appeal (1) the trial court erred in admitting out-of-court statements as past recollection recorded where the witness was

Petitioner W.R. (Father) seeks extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order made at a section 366.3 permanency planning review hearing terminating Father’s reunification services, denying return of his now two-year-old son L.O to his care, and setting a selection and implementation hearing (§ 366.26). He contends substantial evidence does not support the juvenile court’s finding that the return of his child to his custody would create a substantial risk of detriment to L.O.’s physical or emotional well-being. He further argues the juvenile court erred in ruling out the paternal grandmother (PGM) for placement. We do not find Father’s contentions meritorious, and we accordingly deny the petition.

On October 31, 2007, an information charged defendant and appellant Robert Goins with forcible oral copulation in concert under Penal Code section 288a, subdivision (d)(1) (count 1), and forcible sodomy in concert under section 286, subdivision (d) (count 2).
Pursuant to the terms of a plea agreement, on November 21, 2007, the People amended the information to add a charge for unlawful sexual intercourse with a minor under section 261.5, designated as count 4, and defendant pled guilty to count 4.
On January 7, 2008, the trial court placed defendant on supervised probation for a period of three years, and ordered defendant to serve 365 days in county jail. The court then dismissed counts 1 and 2.
On June 21, 2021, defendant filed a petition for expungement of his conviction under section 1203.4.
A supplemental probation report dated July 8, 2021, indicated that defendant was ineligible for relief under section 1203.4 because he had been sentenced to prison. The report also stated that,

Plaintiff and respondent, Shahrokh Shabahang, and defendant and appellant, Christopher Sechrist, were partners in a dentistry practice. In November 2018, plaintiff filed a civil action against defendant for dissolution of partnership, breach of contract, breach of covenant of good faith and fair dealing, accounting, and fraud. Initially, defendant responded to the complaint by filing an answer and a cross-complaint, asserting his own claims against plaintiff as well as against numerous other named cross-defendants. On September 25, 2019, defendant also filed a motion seeking dismissal of the complaint as a strategic lawsuit against public participation (SLAPP) pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). The trial court denied defendant’s anti-SLAPP motion, and defendant appeals from that order.
While defendant’s appeal was pending, plaintiff filed an amended complaint and propounded written discovery. When defendant failed to respond, the trial court gran