CA Unpub Decisions

Defendant Larry Ray Richey punched 85-year-old Lawrence Windham multiple times after he parked close to defendant’s car at a gas station. Windham died five hours later from a heart attack. The pathologist that performed the autopsy of Windham testified he died from a heart attack precipitated by defendant’s attack. Defendant was found guilty of elder abuse likely to produce great bodily injury or death (Pen. Code, § 368, subd. (b)(1)) and battery with serious bodily injury (§ 243, subd. (d)), with the special allegation for the elder abuse charge that defendant personally inflicted great bodily injury on the victim who was 70 years of age and older (§ 12022.7, subd. (c)).

Following a trial, a jury found defendant Joseph Oscar Rodriguez, Sr., guilty of one count of attempted criminal threats and one count of unlawful possession of a dirk or dagger. In a separate proceeding, the trial court found that defendant suffered a prior serious felony conviction. (Pen. Code, § 667, subd. (a)(1).) His aggregate sentence included five years for the prior serious felony conviction. On appeal, he contends: (1) there was insufficient evidence to sustain his conviction for attempted criminal threats, and (2) remand is required to allow the trial court to exercise its discretion whether to strike the enhancement pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1-2). We remand the matter to permit the court to exercise its newfound discretion. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Marisol T. (mother), challenges a juvenile court order following a permanency review hearing (Welf. & Inst. Code, § 366.22), wherein the court set a section 366.26 hearing and suspended her visitation after determining that continued visitation would be detrimental to her children. Mother contends that despite the specific statutes specifying the procedures for status review and permanency review hearings (§§ 366.21, 366.22), the court was required sua sponte to file an application or petition to modify its prior order granting her visitation under sections 388 and 385, and to give her notice of the application or petition. Alternatively, mother contends that the court’s order suspending visitation is not supported by sufficient evidence. Finding no error, we deny the petition.

Defendant and appellant Dewitt Johnson appeals from order entered on remand after the sentencing court declined to exercise discretion to strike either five-year recidivist enhancements under the 2019 amendments to Penal Code sections 667 and 1385. We reverse the order and direct the court to schedule a hearing at which defendant can be present with counsel.

Kevin Christopher Waters petitioned the trial court seeking resentencing under Penal Code section 1170.95, alleging that he was not the actual shooter, that his murder conviction was based on the felony murder rule or murder under the natural and probable consequence doctrine, and that because of changes in the definition of murder promulgated by Senate Bill No. 1437, he could not now be convicted of first or second degree murder. The trial court denied the petition, finding that Waters would have been so convicted because he was a major participant in the robbery who acted with reckless indifference to human life during that offense. The People concur that the trial court erred, and the case should be remanded for the trial court to issue an order to show cause and to conduct an evidentiary hearing on his petition. We agree.

A jury convicted Dameon Miller of various crimes, and the trial court sentenced him to an aggregate prison term of 35 years, which included a five-year term for a prior serious felony conviction under Penal Code section 667, subdivision (a)(1). Miller appealed and asked this court to remand the matter to allow the trial court to exercise its discretion whether to strike the five-year enhancement under section 667, subdivision (a)(1), and to give him an opportunity to request a hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) on his ability to pay the fines and assessments the trial court imposed. This court affirmed Miller’s convictions, vacated his sentence, and directed the trial court to consider whether to exercise its discretion to strike the five-year enhancement and to allow Miller to request a hearing on his ability to pay. (People v. Miller (Jan. 27, 2020, B294274) [nonpub. opn.].)

Appellants Sandra P. (mother) and Sergio P. (father) appeal from orders establishing dependency jurisdiction over their children, Sofia (born 2015) and Samantha (born 2018). Father also appeals from the dispositional order removing the children from his custody and releasing them to mother under the supervision of the Los Angeles County Department of Children and Family Services (the Department).
Father contends there was insufficient evidence to support the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j) that father sexually abused Sofia and that the children were at risk of harm. Mother contends there was insufficient evidence that she knew of the sexual abuse and failed to protect the children. We affirm the juvenile court’s jurisdictional and dispositional orders.

Defendants and appellants Lawyers for Employees and Consumer Rights, APC (Lawyers) and Robert Byrnes (Byrnes) (collectively Lawyers) appeal an order in a legal malpractice action that requires them either to pay plaintiff and respondent Luz Frausto’s (Frausto) costs and administrative fees of arbitration in excess of $1,000, or to waive arbitration of the matter.

J.M. (mother) appeals from the order of the juvenile court terminating its jurisdiction over her son N.J. after placing the child with his father, T.J., under Welfare and Institutions Code section 361.2, subdivision (b)(1). We reject most of mother’s contentions but agree that the court erred in failing to establish the rate and length of her visits with N.J. in the exit order.
In a separate appeal, D.Z. (father) challenges the order taking jurisdiction over his and mother’s son and daughter based on father’s substance abuse. (§ 300, subd. (b)(1).) We decline to address the contention as father has not challenged the other basis for jurisdiction namely, the parents’ domestic violence.
Accordingly, we reverse the exit order and remand it with directions to the juvenile court to specify the frequency and duration of mother’s visits with N.J. In all other respects, the orders are affirmed.

Simona Denise Demery appeals from the superior court’s order denying her petition under Penal Code section 1170.95. That statute allows certain defendants convicted of murder under a natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Here, the court properly determined Demery was not tried for or convicted of murder under the natural and probable consequences doctrine and, accordingly, she is not eligible for resentencing. We affirm.

Defendant Benjamin Paschal’s petition for resentencing under Penal Code section 1170.95 was summarily denied. As defendant was not ineligible for relief as a matter of law, we reverse.

In this consolidated appeal, Radka and Josef Kroul (plaintiffs) appeal from judgments of dismissal entered in favor of WS Investment Property LLC (WS) after the trial court sustained its demurrers without leave to amend to their two practically identical complaints. Plaintiffs’ claims arise out of the foreclosure of three adjoining properties they owned—their house was located on one and the other two were adjoining vacant lots. Their claims relate to the two adjoining lots. We agree with the trial court and conclude plaintiffs’ claims are barred by the doctrine of collateral estoppel. To the extent the doctrine does not apply, they also are time-barred. We affirm.

Defendant Robert E. Zaki was convicted of forcible oral copulation and assault with intent to commit forcible oral copulation. On appeal, Zaki contends: (1) the court erred in admitting evidence of his prior uncharged acts of sexual misconduct; (2) insufficient evidence supports both convictions; (3) the prosecutor committed prejudicial misconduct during oral argument; and (4) a technical defect in the verdict form requires reversal of his conviction for forcible oral copulation. As we explain, all these arguments lack merit. We therefore affirm.

Defendant and appellant Glenn Matthew Tracchia, Jr. (defendant) appeals from the summary denial of his petition for resentencing pursuant to Penal Code section 1170.95, based upon the trial court’s finding that the statute was unconstitutional. Respondent agrees and joins defendant in requesting reversal. We reverse the trial court’s order and remand with instructions.