CA Unpub Decisions

In 1991, a jury convicted defendant and appellant Pedro Alberto Diego (defendant) on murder and attempted murder charges, among others. More recently, defendant petitioned the trial court to vacate his first degree murder conviction and both of his attempted murder convictions pursuant to Penal Code section 1170.95 and related amendments made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court appointed counsel for defendant and denied his petition. We consider whether the trial court correctly concluded defendant is ineligible for section 1170.95 relief as a matter of law, and this reduces to two specific questions: (1) could the jury have found him guilty of first degree murder on a natural and probable consequences theory, and (2) does section 1170.95 authorize relief not just for murder convictions but for attempted murder convictions?

Defendant James Leonard Ricalls was sentenced to a prison term of 85 years to life following his conviction for kidnapping, domestic partner abuse, false imprisonment by violence, and criminal threats. Defendant refused to appear in the courtroom during the trial. He now contends, however, that he is entitled to a new trial because the trial court failed to obtain a written waiver of presence from him under Penal Code section 977. Defendant also argues the court abused its discretion by failing to strike one or more of his prior felony convictions for purposes of sentencing under the Three Strikes Law. Finding no error, we affirm.

APPEAL from an order of the Superior Court of Los Angeles County, Steven J. Kleifield, Judge. Affirmed.
Littler Mendelson, Sophia Behnia and Andrew M. Spurchise for Defendants and Appellants.
Outten & Golden, Jahan C. Sagafi, Rachel W. Dempsey; Merill, Shultz & Bennett, Stephen J. Shultz and Mark T. Bennett for Plaintiff and Respondent.

This is the third time we confront an appeal in this case. (People v. Ware (May 30, 2017, B271291) [nonpub. opn.] [reversing the judgment for instructional error and permitting the People to accept a reduction of a criminal threats conviction to an attempted criminal threats conviction]; People v. Ware (Feb. 19, 2019, B287995) [nonpub. opn.] [affirming denial of a People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) motion brought on remand but remanding again to give the trial court the opportunity to consider exercising its discretion to strike two five-year prior serious felony conviction enhancements].) We are now asked to decide whether reversal is required because the trial court declined to decide whether defendant James Ware (defendant) is entitled to retroactive consideration for mental health diversion (see generally People v. Frahs (2020) 9 Cal.5th 618 (Frahs)) and whether the trial court abused its discretion when opting not to strike the two sentencing enhancem

In 2014, appellant Michael Grant was convicted of robbery. The trial court doubled his sentence under the Three Strikes law and added a five-year enhancement based on a prior conviction for first-degree burglary.
Five years later, in 2019, Grant moved to set aside his sentence as unauthorized. He argued the trial court had engaged in improper fact-finding when it found that his prior burglary conviction was in the first degree. The trial court denied the petition, and Grant appealed. We conclude that Grant’s sentence was not unauthorized and, therefore, the trial court had no jurisdiction to rule on the petition. We dismiss the appeal.

Jim Pinedo appeals the judgment entered after a jury convicted him of attempted second degree murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), three counts of inflicting corporal injury on a spouse or partner (§ 273.5, subd. (a); counts 3, 8, and 12), threatening a witness (§ 140, subd. (a); count 4), dissuading a witness (§ 136.1, subd. (b)(2); count 5), false imprisonment (§ 236; count 9), simple assault (§ 240; count 11), and battery (§ 243, subd. (e)(1); count 13). The jury further found that in committing the attempted murder appellant intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)), and that in committing counts 2 through 5 he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (e)). Appellant also pleaded no contest to unlawful possession of a firearm (§ 29800, subd. (a)(1); count 6), violating a domestic

Defendant and appellant Joel Vincent Childress (defendant) appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95. Defendant contends that the trial court was required to appoint counsel and permit briefing prior to finding defendant eligible or ineligible for relief. Finding no merit to defendant’s contention, we affirm the order.

Defendant and appellant Paul T. Gordy (defendant) appeals from the judgment awarding plaintiff and respondent Renita Turner (plaintiff) $226,784 in compensatory damages and $170,000 in punitive damages following a court trial in this action for breach of contract, fraud, and other claims. We affirm the judgment.

Plaintiff Otto Randle appeals from a judgment of dismissal entered in a lawsuit he brought against an individual, Rita Gayle Farris-Ellison, and three entities, Cenlar F.S.B. d/b/a Central Loan Administration and Reporting (Cenlar), Mortgage Electronic Registration Systems, Inc. (MERS), and the Federal National Mortgage Association (Fannie Mae). The judgment at issue was entered in favor of the three entities after the trial court granted their motion for judgment on the pleadings. We conclude the court did not err in entering judgment in favor of the entities because the statutes of limitation had run and Randle failed to allege (and appears unable to allege) facts sufficient to support application of the discovery rule. Accordingly, we affirm the judgment.

The State of California (State) entered into a 20-year lease agreement (lease) regarding real property (property) owned by 5401 Associates, L.P. (Landlord) that contained a provision allowing the State to convert the lease to a lease with purchase option (lease-option) agreement and purchase the property for $1 at the end of the lease term. The State occupied the property for the full lease term and attempted to make the conversion and exercise the purchase option. But Landlord refused to sell the property, claiming the State did not fully comply with certain lease provisions relating to the conversion of the lease. Those provisions require compliance with Government Code section 14669 which, in turn, requires the State to obtain specific authorization from the Legislature and engage in a competitive bidding process before entering into a lease-option agreement.
Landlord filed a complaint alleging the State breached the lease and sought declaratory relief to the effect that the sale of

In 2019, when appellant J.J., was almost 17 years old, the juvenile court ordered him committed to the Division of Juvenile Facilities (DJF) for a maximum term of confinement of eight years for several offenses he committed between 2015 and 2019. J.J.’s appellate counsel initially requested this court independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, 744 (Anders). (See In re Kevin S. (2003) 113 Cal.App.4th 97, 99 [Wende procedure applies in juvenile delinquency appeals].) J.J.’s counsel also informed J.J. of his right to file a supplemental brief and he did not file one.
Upon our independent Wende/Anders review, we found no arguable appellate issues requiring further briefing other than what we referred to in a supplemental briefing order to the parties. We requested further briefing regarding whether the eight-year maximum period of J.J.’s confinement in DJF set by the juvenile court must be reduced

Defendant Justin Garner pled no contest to the unlawful taking or driving of a vehicle, felony failure to appear, and grand theft of a bicycle. The trial court suspended imposition of his sentence, imposed fines and fees, and placed him on probation. The court subsequently revoked defendant’s probation and sentenced him to local prison (Pen. Code , § 1170, subd. (h)). In this appeal, defendant argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and under the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution, the trial court erred by failing to hold an ability to pay hearing before imposing certain fines and fees when it granted him probation. He also contends that his counsel was ineffective for failing to object to the imposition of the fines and fees. Defendant did not appeal from the order granting him probation and imposing the fines and fees at issue, so his claims are untimely and not cognizable i

An electrical fire originating in a Quizno’s Corporation (Quizno’s) sandwich store damaged it and neighboring stores, spawning several lawsuits against Quizno’s. After a jury found Triton Subs, Inc. (Triton), a Quizno’s agent, performed actions that were a substantial cause of the fire but within the scope of its agency relationship, Quizno’s settled the lawsuits. Its insurer, Fireman’s Fund Insurance Company (FFIC) paid over $7 million in satisfaction of the settlement. FFIC then filed a complaint against Triton for indemnification, and a jury returned a verdict in favor of FFIC. On appeal, Triton primarily argues that FFIC was collaterally estopped from litigating its indemnification claim, that the trial court improperly interpreted Triton’s indemnity obligations, and that the evidence was insufficient to support the jury’s verdict. We affirm.

Defendant Edward Gene Wilson appeals from his conviction by a jury of assault with a firearm (Pen. Code, § 245, subd (a)(2) ). The jury also found true allegations of personal use of a firearm (§ 12022.5, subd. (a)) and infliction of great bodily injury (§ 12022.7, subd. (a)). The jury found defendant not guilty of attempted murder.
Defendant asserts the prosecutor committed misconduct while cross-examining a defense expert and compounded that misconduct in closing argument by assertedly leading the jury to believe defendant had a duty to retreat from his perceived assailant. We affirm.