CA Unpub Decisions

A jury found defendant Michael D. Reed guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), together with true findings on various sentencing enhancements. He received an aggregate sentence of seven years in prison, which included one year for a prior prison term. On appeal, he argues (1) the trial court erred by failing to declare a mistrial on grounds of juror misconduct, (2) the one-year component of his sentence for a prior prison term must be stricken in light of the recent enactment of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), which he contends applies retroactively to nonfinal cases on appeal, and (3) the abstract of judgment erroneously states that he is entitled to 1376 days of custody credits, which he contends conflicts with the court’s oral pronouncement of sentence awarding him 1378 days of custody credits.

On December 7, 2018, the Santa Clara County Department of Family and Children’s Services (Department) filed separate petitions under Welfare and Institutions Code section 300 concerning the minor, E.L. (born in February 2018). Petitioner M.L. is the minor’s father. R.L. is the minor’s mother. The minor was removed from Mother’s care in January 2019 due to prior instances of domestic violence between Mother and Father, that reportedly occurred between March 2016 and August 2018. The minor has been a dependent of the juvenile court since May 2019.
After a lengthy contested proceeding that was a combined 12-month and 18-month review hearing, the juvenile court on December 1, 2020, terminated Father’s (as well as Mother’s) reunification services. The court found that there would be a substantial risk of detriment if the minor were returned to the care of Father; Father had “not exhibited adequate insight and accountability regarding his actions,” including his denial of a

Under Penal Code section 1170, subdivision (d)(1) (hereafter section 1170(d)(1)), the trial court may “at any time upon the recommendation of the secretary or the Board of Parole Hearings” recall an inmate’s sentence and resentence that individual. Appellant Charles Ray Martinez was the subject of such a recommendation. The trial court declined to recall Martinez’s sentence, and Martinez argues the trial court abused its discretion in so doing. For the reasons explained below, we agree and therefore vacate the order and remand the matter to the trial court for it to exercise its informed discretion under the statute.

A jury found defendant Kelly Preston Freeman guilty of criminal threats, false imprisonment, and domestic violence battery. In a second case, Freeman pleaded no contest to first degree residential burglary. In both cases, he admitted he had suffered a prior serious felony conviction. The trial court imposed an aggregate term of 11 years eight months in state prison.
Freeman raises three claims on appeal. First, he contends his right to conflict-free counsel was violated because his trial counsel had previously represented a witness for the prosecution. Second, he contends he was denied the right to be present at a critical stage in the proceedings because he was excluded from discussions in which his attorney disclosed her prior representation of the prosecution witness. Third, he contends the trial court erred by admitting evidence of prior domestic violence acts under Evidence Code section 1109.
For the reasons below, we conclude these claims are without merit and we affirm the judgm

Appellant Lonnie Cummings seeks review of custody and visitation orders concerning the parties’ then-minor child, issued by the trial court in October 2018. The subject child turned 18 in November 2020, such that the trial court no longer has jurisdiction to make custody and visitation orders.

A jury found defendant David Allen Garris guilty of carjacking (Pen. Code, § 215), attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)), and assault with a deadly weapon (§ 245, subd. (a)(1)) and found true the allegation that defendant personally used a dangerous or deadly weapon during the commission of the assault (§§ 667, 1192.7). Defendant admitted the allegations that he had two prior strike convictions (§§ 667.5, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). After the trial court denied defendant’s Romero motion to strike the prior strike convictions, it sentenced defendant to an aggregate term of 37 years to life.
Defendant contends that the case must be conditionally remanded for a mental health diversion eligibility hearing pursuant to section 1001.36; remand is required to give the trial court an opportunity to exercise its newfound discretion to strike his serious fe

This appeal centers on the trial court’s obligations when it receives a recommendation to recall a defendant’s sentence from the Secretary of the California Department of Corrections and Rehabilitation (Secretary). Appellant contends such recommendations automatically trigger the right to a hearing and the appointment of counsel. However, we join People v. Frazier (2020) 55 Cal.App.5th 858 (Frazier) and People v. McCallum (2020) 55 Cal.App.5th 202 (McCallum) in concluding otherwise.
We thus affirm the trial court’s decision not to afford appellant those rights after receiving a recommendation for recall in this case.

S.I. (mother) appeals the juvenile court’s order terminating her parental rights as to her minor son, P.E. (Welf. & Inst. Code, § 366.26). Mother contends the juvenile court’s finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to the proceedings was not supported by substantial evidence because the Kern County Department of Human Services (department) failed to comply with ICWA inquiry and notice provisions. Appointed counsel for D.E. (father) filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 contending there were no arguable issues. Father submitted his own letter brief joining in mother’s arguments. We conditionally reverse the juvenile court’s order terminating parental rights and remand for proceedings to ensure ICWA compliance.

Appointed counsel for appellant Michael Alcala asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Alcala was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. This court did not receive a supplemental brief from him. Finding no arguable error that would result in a disposition more favorable to appellant, we affirm.

Appellant and defendant Masayoshi Mukai admitted he had consumed “ ‘unknown’ amounts” from a “ ‘pile’ of drugs” on the night before and morning of December 26, 2017, and then drove to Fresno with a friend, 20-year-old Maya Isabel Thone (Ms. Thone). While on State Route 152, he drove in excess of 100 miles per hour, weaved in and out of traffic, and his vehicle overturned. Ms. Thone was pronounced dead at the scene. Defendant tested positive for methamphetamine, cocaine, and opiates.
Defendant pleaded guilty as charged to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and three other offenses. He was sentenced to the upper term of 10 years.
On appeal, defendant argues the court abused its discretion when it imposed the upper term, relied on aggravating factors that were elements of the offense, and failed to consider mitigating factors. Defendant also argues the court improperly ordered him to pay a restitution fine and assessments without

Appellant Mark William Leyva appeals from an open plea of guilty. His plea included a waiver of his right to appeal from the trial court’s sentence. Following sentencing, defense counsel filed a notice of appeal on Leyva’s behalf, but did not apply for a certificate of probable cause. On appeal, Leyva contends the trial court abused its discretion in denying him probation, and the court punished him three times for a single act in violation of Penal Code section 654. If these issues are held waived, he submits defense counsel rendered ineffective assistance of counsel by failing to object to the appellate rights waiver and by failing to seek a certificate of probable cause. We will order his sentence on count 4 stayed. In all other respects, we affirm the judgment.

A jury found defendant and appellant Arthur Armando Alvarez guilty of murder (Pen. Code, § 187, subd. (a), count 1), evading a police officer and driving in willful and wanton disregard to the safety of others (Veh. Code, § 2800.2, count 2), being the driver of an automobile involved in an accident resulting in injury or death and failing to stop at the scene (Veh. Code, § 20001, subd. (a), count 3), unlawful taking or driving of a vehicle with a prior conviction of vehicle theft (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a), count 4), receipt of a stolen vehicle with a prior conviction of vehicle theft (Pen. Code, §§ 496d, subd. (a), 666.5, subd. (a), count 5), driving under the influence (Veh. Code, § 23153, subd. (f), counts 6-8), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a), count 9). The jury also found true the allegation the accident in count 3 resulted in death. (Veh. Code, § 20001, subd. (b)(2).) On the court’s own motion, i

Peter Law Group, Arnold Peter and Eyal Farahan, for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Fred M. Plevin, Corrie J. Klekowski and Karyn R. Moore, for Defendant and Respondent.

Peter Law Group, Arnold Peter and Eyal Farahan, for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Fred M. Plevin, Corrie J. Klekowski and Karyn R. Moore, for Defendant and Respondent.