CA Unpub Decisions

Defendant, Dante Maurice Lankford, was convicted by a jury of 22 criminal offenses as a result of multiple incidents involving his wife, Jane Doe. As relevant to this appeal, defendant’s convictions included making a criminal threat (Pen. Code, § 422, count 2) and assault with a firearm (§ 245, subd. (a)(2), count 3), as the result of an incident in December 2017; stalking (§ 646.9, subd. (b), count 6), inflicting corporal injury on a spouse (§ 273.5, subd. (f)(2), count 7), and making a criminal threat (§ 422, count 9), as the result of an incident on June 10, 2018; one count of dissuading a witness by use of force (§ 136.1, subd. (c)(1), count 13), as the result of an incident on June 18, 2018; and one count of dissuading a witness (§ 136.1, subd. (a)(2), count 22), as a result of jail calls made in December 2018.
Defendant was sentenced to an aggregate term of 45 years in state prison and ordered to pay various fines and fees. As relevant to this appeal, his sentence includ

Defendant Laura Elshire appeals the trial court’s denial of her motion for recall of sentence and resentencing that she filed after the Secretary of the California Department of Corrections and Rehabilitation sent a letter to the court recommending that Elshire’s sentence be recalled and that she be resentenced. (See former Pen. Code, § 1170, subd. (d)(1).)
In her opening brief on appeal, Elshire contended that the trial court failed to properly exercise its discretion when it denied her request to recall her sentence and that due process required that the court provide her an opportunity to be heard on that request. After briefing on appeal was completed, the Legislature passed, and the Governor signed into law, Assembly Bill Number 1540, which significantly alters the recall and resentencing provisions formerly set forth in section 1170, subdivision (d). The new provisions, which became effective January 1, 2022, weigh heavily in favor of recalling and resentencing defendants. (S

Appellant J. S. (father) appeals from the juvenile court’s orders under Welfare and Institutions Code section 300 et seq. exercising dependency jurisdiction over his minor children, Je. S. and A. S., and removing them from his custody and care. He argues the court erred in making dispositional findings based on his submission to jurisdiction when it was unclear whether he understood the consequences of submitting on the jurisdiction report. He further contends the juvenile court erred in denying his motion to set aside his no contest plea (although father did not plead no contest but rather submitted on the jurisdiction report), as his submission was not knowingly and intelligently made.
We conclude that any alleged error in advising father of his rights and obtaining a waiver before ruling on the petition was harmless beyond a reasonable doubt, and that the court did not err in denying father’s motion to set aside a “no contest plea” which in fact he never made. We affirm.

Defendant Alexis Algarin appeals following his no contest plea to multiple counts of assault with a firearm and admission to one firearm use enhancement. He argues the trial court erred in imposing the upper term for both the assault and enhancement, alleging the trial court impermissibly engaged in dual use of facts.
We disagree the trial court abused its discretion. However, we agree with the parties that defendant is nevertheless entitled to remand in view of the passage of Senate Bill No. 567 (2021-2022 Reg. Sess.). We further conclude the trial court failed to impose all mandatory fees. Accordingly, we reverse the judgment for further proceedings consistent with this decision. We otherwise affirm.

In 2000, defendant Mario Keola was tried on numerous criminal charges arising from a death that occurred during a high speed car chase led by defendant. (People v. Keola (Jan. 17, 2002, C037184) [nonpub. opn.].) Included in those charges was a charge for second degree murder and multiple charges for evading a pursuing peace officer.
At trial, defendant’s jury was given two alternate theories for finding defendant guilty of second degree murder: implied malice and second degree felony murder based on evading an officer by driving with reckless disregard for the safety of persons or property. The jury found defendant guilty of second degree murder but there is no way to ascertain from the record upon which theory the jury found defendant guilty. We affirmed the judgment on appeal.
On September 16, 2019, defendant sought resentencing pursuant to Penal Code section 1170.95 in light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which amended

Defendant, Humberto Diaz, appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015). He contends his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory was eligible for relief under section 1170.95; and, if the conviction is not eligible for relief, then section 1170.95 violates equal protection principles. In an unpublished opinion, we affirmed the order. (People v. Diaz (Aug. 2, 2021, C092548 [nonpub. opn.].) The Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775. Upon reconsideration, we agree with defendant he is entitled to resentencing on his attempted murder conviction. Accordingly, we will reverse and remand with instructions to the trial court to appoint counsel for defendant and issue an order to show cause fo

In 1995 a jury found defendant Christian Matthew Abernathy guilty of first degree murder, assault with a firearm, attempted robbery, and robbery. The jury also found true a robbery-murder special circumstance alleged by the People. The trial court sentenced defendant to life without the possibility of parole. We affirmed that judgment in People v. Wright (1996) 52 Cal.App.4th 203 (Wright).
On March 27, 2019, defendant petitioned the trial court for resentencing pursuant to Penal Code section 1170.95. The People opposed the petition. The trial court appointed counsel and both parties submitted briefs to the court. On December 27, 2019, the trial court denied the petition finding defendant was barred from relief because the jury’s special circumstance finding meant defendant was a major participant in the crime who acted with reckless indifference to human life. The court issued an amended order on June 4, 2020.
Defendant appeals from the amended order denying his petition for resentenci

Defendant Johnnie Ray Peraza appeals the trial court’s denial of his second petition for resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). He contends: (1) the summary denial of his first petition did not bar him from filing a second petition, and (2) the trial court erred by summarily denying his petition without appointing counsel or holding an evidentiary hearing. The People argue defendant was collaterally estopped from filing the second petition and the trial court correctly determined he was ineligible for relief, as a matter of law. Defendant also contends that in resentencing on remand from an earlier appeal, the trial court imposed an unauthorized sentence and failed to update his custody credits.
We accept the People’s concession that the matter must be remanded for resentencing based on an unauthorized sentence and to update defendant’s custody credits. We will affir

Defendant Johnnie Ray Peraza appeals the trial court’s denial of his second petition for resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). He contends: (1) the summary denial of his first petition did not bar him from filing a second petition, and (2) the trial court erred by summarily denying his petition without appointing counsel or holding an evidentiary hearing. The People argue defendant was collaterally estopped from filing the second petition and the trial court correctly determined he was ineligible for relief, as a matter of law. Defendant also contends that in resentencing on remand from an earlier appeal, the trial court imposed an unauthorized sentence and failed to update his custody credits.
We accept the People’s concession that the matter must be remanded for resentencing based on an unauthorized sentence and to update defendant’s custody credits. We will affir

Appellant California School Employees Association (CSEA) brought a petition for writ of mandate to stop the practice of respondent Stockton Unified School District of docking employees for salary advances when it was subsequently determined that an employee was absent and did not have available paid leave to cover the time not worked. The District issues a pay warrant around the twenty-first of the month based on the employee’s salary for the month and pays the employee that amount at the end of the month. When the District determines that after the twenty-first an employee was not at work and did not have paid leave available to cover that time, the District docks the employee’s pay accordingly. CSEA contends that these deductions are permissible only if the employee consents in writing or the District obtains a judicial order for wage garnishment.
The District’s practice was the subject of another mandamus petition that CSEA filed in 2004 alleging that the District docked the p

A jury convicted defendant Martin Tapia of rape, making criminal threats, and simple kidnapping. The court sentenced him to state prison for a term of 55 years to life. (People v. Tapia (Dec. 11, 2006, C050402 [nonpub. opn.] (Tapia).) In 2019, California’s Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court indicating two ways in which the sentence might be incorrect and requesting clarification of the sentence. CDCR advised the court that: (1) there was a discrepancy between the statutory designation of the rape charge as reflected in the abstract of judgment and alleged in the information, and the description of the charge by the court at sentencing; and (2) the One Strike allegation used to increase the sentence on the rape charge was not alleged in the information and not reflected in the abstract of judgment. The trial court found the discrepancy in the statutory designation of the rape charge was a clerical error and ordered the abstract of judg

April W. (Mother) appeals from a juvenile court order terminating her parental rights over K.K. (minor) pursuant to Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred when it determined the Los Angeles County Department of Children and Family Services (the Department) satisfied its inquiry and notice obligations under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law in connection with minor’s possible Indian heritage. Counsel for mother, minor, and the Department, have stipulated to a limited reversal and a remand to the juvenile court to permit proper compliance with ICWA and related California law. We accept the parties’ stipulation.
Our ability to accept a stipulated reversal and remand in the dependency context is discussed in In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382. The present case involves reversible error because the parties agree, and we concur, there was noncompliance with I

Gerald “Gerry” Spence appeals from an order staying the present litigation pending resolution of a related matter previously filed in United States District Court in Wyoming. Spence’s chief contention on appeal is the trial court abused its discretion by ordering a stay because the two lawsuits do not involve the same issues or parties. We affirm.

In 2002, a jury convicted defendant and appellant Jose De La Cruz of first degree murder. (Pen. Code, § 187, subd. (a) .) The jury found true the allegations that defendant personally used and personally discharged a firearm. (§ 12022.53, subd. (b) & (c).) The trial court sentenced defendant to 25 years to life plus 20 years in state prison. On October 8, 2003, a prior panel of this division affirmed defendant’s judgment. (People v. De La Cruz (Oct. 8, 2003, B158884) [nonpub. opn.].)
On March 20, 2020, defendant filed a petition for resentencing pursuant to Senate Bill No. 1437 and section 1170.95.
On April 21, 2020, the trial court appointed counsel to represent defendant.
On November 10, 2020, the Los Angeles County District Attorney filed an opposition to defendant’s petition that included as exhibits the appellate opinion referenced above and a transcript of the oral jury instructions given at defendant’s trial. The District Attorney argued, among other things, that defenda