CA Unpub Decisions

A jury convicted defendant Leondre Paige of first degree murder (Pen. Code, § 187, subd. (a)) and also found he personally used and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)–(d)). On appeal, he contends multiple statements the prosecutor made during the course of the trial constituted misconduct, or alternatively that his trial counsel was ineffective for failing to object to those comments. He also contends the trial court erred by failing to conduct a Marsden hearing. In supplemental briefing, defendant further asks that his sentence be reversed and the matter be remanded to permit the trial court to exercise its discretion as to whether to strike the firearm enhancement pursuant to Senate Bill No. 620. The Attorney General agrees section 12022.53 applies retroactively and that the matter should be remanded. We affirm the judgment, but remand for the trial court to consider resentencing under amended section 12022.53, subdivision (h).

The conservatee, A.L. (Allen), was involuntarily committed by the superior court in early 1984 in proceedings under the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000 et seq.; LPS Act or Act), the court finding Allen gravely disabled under the Act. Allen’s sister, P.L. (Pamela), was named conservator of the person. Pamela remained as Allen’s conservator over the next 32 years, with both of them living in California and, for 10 years, in Nevada. In the summer of 2016, Pamela, as conservator, filed separate petitions for least restrictive placement and for reappointment as conservator for an additional year. After multiple hearings, and after the removal of Allen from institutional care and his placement in Pamela’s home, the court on August 19, 2016, over Pamela’s objection, dismissed both petitions and terminated the LPS conservatorship.

A jury found defendant Lee Vincent Cottone liable on several tort causes of action for sexually abusing his niece, plaintiff B.C., when she was between eight and 10 years old. Cottone challenges the sufficiency of the evidence to support his ability to pay the jury’s award of $300,000 in punitive damages, primarily citing a lack of evidence regarding his financial liabilities. B.C. cross-appeals from the court’s award of $95,000 in attorney fees, asserting the court failed to apply the lodestar method in determining statutory attorney fees (Code Civ. Proc., § 1021.4). For the reasons expressed below, we reverse the award of punitive damages and remand for retrial on that issue, including Cottone’s liabilities. We affirm the attorney fee award.

Jerry L. (father) appeals from the juvenile court’s order denying his Welfare and Institutions Code section 388 petition, by which he sought to reinstate his reunification services. Father contends the juvenile court abused its discretion in denying the petition without an evidentiary hearing. He also contends the juvenile court erred in failing to address whether active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., and there is no substantial evidence to support an implied active efforts finding. We reject father’s contentions and affirm.

Appellants Larry and Jeanette S. are the maternal grandparents of Taylor S. and W.S., now eight- and one-year-old, respectively. In June 2017, while the children were dependents of the juvenile court, appellants filed a modification petition (Welf. & Inst. Code, § 388) seeking placement of the children and increased visitation. The juvenile court granted appellants’ request as to visitation but declined to consider placement because they had not completed the application process. Appellants in propria persona contend the court erred in not considering their request for placement. We affirm.

In this conservatorship case in which the Fresno County Public Guardian (the Public Guardian or conservator) was appointed as conservator of the person and estate of Benjamin H. Smith (Benjamin or conservatee), appellant Michael H. Smith, Jr. (Butch), appeals from an order directing payment from the conservatorship estate of approximately $18,000 in attorney fees to respondent Catherine A. Amador of the law firm of Pascuzzi, Pascuzzi & Stoker. Amador did not represent the Public Guardian in the proceedings below, but was attorney of record for Michael H. Smith, Sr., (Michael) and Jenna R. Smith (Jenna). Nevertheless, the trial court granted Amador’s petition for a fee award under Probate Code section 2642 to compensate her to the extent that she performed legal services of assistance to, or in cooperation with, the Public Guardian in its role as Benjamin’s conservator.

Petitioner K.M. (the child) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.456, challenging the juvenile court’s order removing her from her de facto parents’ home and placing her with the paternal grandmother, at a Welfare and Institutions Code section 366.26 hearing. We find no error and deny the writ petition.

In January 2014, defendant and appellant Tony Terell Bradford pled no contest to inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a)). In return, defendant was placed on formal probation for a period of three years on various terms and conditions of probation. Defendant repeatedly violated the terms and conditions of his probation. In May 2017, after being reinstated on probation several times, the trial court terminated defendant’s probation and sentenced him to four years in state prison with 532 days of credit for time served. Defendant appeals from the trial court’s finding he violated the terms of his probation and sentencing him to four years in state prison. Based on our independent review of the record, we find no error and affirm the judgment.

C.T. and D.A. appeal the juvenile court's order terminating C.T.'s parental rights to her minor daughter, C.A., and earlier orders finding the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to C.A.'s presumed father, D.A., or C.A.'s biological father, D.R. We reject these challenges and affirm the orders.

Yvette Cooper appeals an order denying her petition to reduce to a misdemeanor her felony conviction for three counts of first degree residential burglary. (Pen. Code, §§ 459, 460.) She sought relief under section 1170.18, the Safe Neighborhoods and Schools Act, which was enacted by California voters in November 2014 pursuant to Proposition 47. The trial court denied Cooper's petition on the basis her residential burglary conviction was ineligible for resentencing under Proposition 47.
Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Cooper an opportunity to file a supplemental brief on his own behalf, but she did not do so. After independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable appellate issues and affirm.

Ernest Orozco pled guilty to one count of unlawfully driving a vehicle of another without permission, and one count of receiving a stolen vehicle. Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act of 2014, which among other things, established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.)
In a previous unpublished opinion, we affirmed the trial court's denial of Orozco's petition for resentencing under Proposition 47. In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017). We affirm the trial court's order denying Orozco's petition without prejudice to consideration of a subsequent petition providing evidence of eligibility.

Plaintiff Clyde Hendrix, born in 1934, brought this action in July 2016 for elder abuse and negligent infliction of emotional distress against defendant Aloe Holdings, LLC (Aloe), which operates the Auburn Oaks Care Center (Auburn Oaks), and other defendants who are not parties to this appeal. In an exchange of letters soon afterward, the parties disputed whether the matter was subject to arbitration.
After the superior court set a trial date of August 2017, Aloe filed a petition to compel arbitration in December 2016. A commissioner of the trial court concluded that Aloe had failed to establish that Hendrix was a party to arbitration agreements, which his wife had executed in connection with her husband’s admission to Auburn Oaks. Two months later, Aloe filed its notice of appeal in March 2017. The trial court thus vacated the trial date and stayed the matter pending appeal. We granted calendar preference. Briefing was completed in November 2017.

Following a jury trial, defendant Paul Keola was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), false imprisonment by force or violence (§§ 236, 237, subd. (a)), and cohabitant abuse (§ 273.5, subd. (a)) with enhancements for personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally using a deadly weapon (§ 12022, subd. (b)(1)). The jury sustained allegations of a prior prison term (§ 667.5, subd. (b)) and a prior domestic violence conviction (§ 273.5, subd. (f)(1)) in a bifurcated proceeding. The trial court sentenced defendant to a 12-year state prison term.
On appeal, defendant contends the trial court prejudicially erred in admitting hearsay statements made by the victim to the police. Finding the majority of the statements admissible as prior consistent or inconsistent statements and the admission of any other statements to be harmless error, we shall affirm.

Following a joint trial, a jury found the four codefendants guilty and sustained allegations as follows: Sandy George (Sandy), first degree murder with a felony-murder (burglary) special circumstance, burglary, and conspiracy to commit burglary; Kevin Moreno (Kevin), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; Michael Moreno (Michael), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; and Peaches Alexis Moreno (Peaches), first degree murder with a felony-murder (burglary) special circumstance, petty theft as a lesser offense of robbery, burglary, and conspiracy to commit burglary. The jury declined to return a verdict on any count based on the commission of a robbery.