CA Unpub Decisions

A jury convicted Francisco Javier Casillas of three counts of attempted premeditated murder, three counts of assault with a semiautomatic firearm and one count of carrying a loaded firearm while an active gang member. The jury also found true the allegations supporting firearm and gang enhancements. Casillas appealed, asserting instructional, sentencing and cumulative errors.
During the pendency of his appeal, the Legislature amended various statutory provisions governing gang enhancements and the requisite proof for gang-related crimes. The parties agree Casillas is entitled to the retroactive benefit of certain of these changes, necessitating the vacatur of his conviction for carrying a loaded firearm while an active gang member and other gang enhancements. The parties also agree the trial court erred in imposing a 15-year minimum parole eligibility period on the attempted murder counts.

1. The crime and the eyewitness testimony
On the afternoon of July 5, 2000, Ricardo Aguilera was visiting Michael and Carlos M. Their home was in the territory of the Marianna Maravilla gang. Michael had been a member of the gang. (Madrigal I.)
Sometime between 3:15 and 3:20 p.m., Aguilera and Michael were outside when a black truck with two men in it drove past and slowed. Michael recognized one of the men as Francisco Olivares, known as “Go-Go,” from the rival Ford Maravilla gang. Aguilera and Michael ran inside to tell Michael’s mother, then went back outside to bring in the mother’s other children. The truck stopped and the passenger asked Aguilera where he was from. Aguilera replied he was from nowhere. The passenger pulled out a gun. Aguilera ran toward the residence. He was shot in the back of the head but survived. (Madrigal I.)
Ricardo Aguilera
At trial, Aguilera testified he had gone outside to move a car. A black truck and a white car passed by.

Appellant Dominic Silvester is a former patient of physician John Kim Niparko, an ear specialist who treated Silvester over several months for tinnitus (ringing in his ears). Silvester contends that while he was in a vulnerable state during treatment, Dr. Niparko, now deceased, improperly solicited Silvester to make charitable donations to Johns Hopkins Hospital. Silvester further asserts Niparko concealed that Silvester’s condition had worsened under Niparko’s care because Niparko wanted Silvester to continue donating large sums of money.
Silvester sued Niparko’s estate and the personal representative of Niparko’s estate for fraud and constructive fraud. After an eight-day trial, the jury entered a general verdict in favor of the personal representative.

Mission Hub LLC (Tenant) leased certain commercial real property (the Property) from Owner. Tenant subsequently contracted with Contractor for construction work on the Property. During the construction, disputes arose between Contractor and Tenant, and Contractor placed a mechanics lien on the Property.
On June 13, 2018, Contractor and Tenant executed two documents. The first was on Contractor’s letterhead with the heading, “Final Change Order – Final Contract Amount and Settlement Agreement Terms” (hereafter, Final Change Order). The Final Change Order stated its “purpose . . . is to memorialize the Final Contract Amount and the Settlement Agreement Terms and Payment schedule.” It also provided the parties agreed “the terms of the settlement shall be incorporated into a separate Settlement Agreement and Mutual Release substantially in the form attached as Attachment 2 to this Final Change Order.”

The parties were married on July 10, 2012 and lived together. They had a child born in 2013. In December 2017, the parties separated. That same month, wife obtained a temporary DVRO against husband and filed a petition for dissolution of the marriage.
On May 29, 2018, the trial court granted wife a one-year DVRO and custody of the child. The court found husband had rebutted the presumption in Family Code section 3044 and allowed him unsupervised visits with the child. Thereafter, on October 25, 2018, the parties reconciled and began living together in the marital residence after entering into a “Spousal Property Agreement” (SPA). As a result of the reconciliation, the trial court issued an order terminating the May 29, 2018 DVRO and the related custody and visitation orders.
Approximately one year later, on November 18, 2019, the trial court issued a temporary DVRO in favor of wife, husband moved out of the marital residence, and the parties again separated.

On the night of April 1, 2020, an argument ensued between 23-year-old defendant and his 64-year-old father. Defendant lived with the father in a studio apartment in Prunedale. Defendant was drunk and the father had consumed a couple of beers.
The father pushed defendant in the chest a few times and “[p]robably” punched defendant in the face. Defendant then hit the father in the face, stomach, and possibly one of his ribs, where he had previously been injured. The father was five feet seven inches tall and weighed about 200 pounds. Defendant was six feet one inch tall and weighed 234 pounds. The father stated that defendant was defending himself when the fight started but that the father was on the defense once “they really got into [it].” At one point while the father was trying to defend himself, he hit defendant on the back of the head with a soup bowl, which broke. The fight ended when the father told defendant to stop and defendant walked away.

In December 2020, defendant pleaded no contest to a single-count felony complaint alleging a violation of Penal Code section 311.11, subdivision (c)(1). The complaint alleged defendant possessed more than 600 images of child pornography, at least 10 of which contained a prepubescent minor or a minor who had not attained 12 years of age. In April 2021, the trial court suspended imposition of sentence and placed defendant on formal probation for three years. The conditions of probation included serving 12 months in county jail and completing an approved sex offender management program. Defendant’s sole argument issue on appeal is that his three-year probation term is unauthorized in light of Assembly Bill No. 1950 (2020 Reg. Sess.), which took effect on January 1, 2021. (Stats. 2020, ch. 328, § 2.) The legislation reduced to two years the maximum probation term for most felony offenses, including the offense at issue here.

Rassaii contends he has stated a valid cause of action by alleging section 41300(f) facially violates the equal protection clauses of the federal and California constitutions. Two standards have been applied in evaluating facial challenges to statutes and regulations. (See T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1117, fn. 6 [noting “uncertainty regarding the standard for facial constitutional challenges to statutes and local ordinances”].) Under one standard, the “legislation is invalid if it conflicts in the generality or great majority of cases.” (Ibid.) Under the narrower standard, “legislation is invalid only if it presents a total and fatal conflict with applicable constitutional prohibitions.” (Ibid.)

A. Detention and Removal
Two-month-old B.Y. came to the attention of the Fresno County Department of Social Services (department) in February 2021 after he was admitted to the hospital for failure to thrive because of insufficient feeding. The hospital staff attributed the baby’s low weight to mother who was inattentive to his needs. The staff encouraged her to participate in caring for the baby but she let him lie in the crib excessively and had to be prompted to feed and change him. She told the nurses it was their job, not hers, to feed the baby. The nurses also had difficulty getting mother to wake up while in the hospital and noticed that she talked to herself. They suspected she had postpartum depression. Mother also suspected she had postpartum depression and was seeing a therapist.
The department offered mother voluntary family maintenance services but she declined. Consequently, the department took the baby into protective custody and placed him in foster care.

Petition, Detention, Jurisdiction, and Disposition
In May 2019, the department received a referral alleging general neglect when six year-old M.M. (not subject to this proceeding) was found wandering alone near a busy street. M.M. and her siblings, then 11-year-old D.M., then eight-year-old K.C.M., then four-year-old K.L.M., then three-year-old K.B.M., and then 10-month-old K.A.M., were all in the care of their 14-year-old sister, S.S., in the motel room where they lived. Law enforcement responded and waited over an hour for the parents to return. When they did, mother reported it was only the second time she had left the children alone and that she home schooled the children. Law enforcement placed a hold on the children. The children reported to the investigating social worker they were left in S.S.’s care for many hours every day and sometimes the parents would not return home until late at night.

The charges in this case all involve sex crimes allegedly committed against two half brothers who defendant often watched while their parents ran errands. Most of the allegations involve the younger five-year-old brother. After the initial allegations came to light, the 11-year-old half brother told his grandmother defendant had also touched him inappropriately.
On June 9, 2021, an amended complaint was filed charging defendant with nine counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)); one count of committing oral copulation/sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)); and one count of failing to register as a sex offender (§ 290, subd. (b)). Special allegations were also alleged under 10 of the counts. For counts 1 through 9, it was alleged defendant committed sex crimes with aggravated circumstances (§ 667.61, subds.

The charges in this case all involve sex crimes allegedly committed against two half brothers who defendant often watched while their parents ran errands. Most of the allegations involve the younger five-year-old brother. After the initial allegations came to light, the 11-year-old half brother told his grandmother defendant had also touched him inappropriately.
On June 9, 2021, an amended complaint was filed charging defendant with nine counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)); one count of committing oral copulation/sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)); and one count of failing to register as a sex offender (§ 290, subd. (b)). Special allegations were also alleged under 10 of the counts. For counts 1 through 9, it was alleged defendant committed sex crimes with aggravated circumstances (§ 667.61, subds.

On September 17, 2020, a first amended information was filed in the Superior Court of Fresno County charging appellant with count 1, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)); and count 2, misdemeanor possession of an injection/ingestion device (Health & Saf. Code, § 11364), with one prior strike conviction.
On October 1, 2020, appellant’s jury trial began with motions. The court heard and denied appellant’s motion to discharge his attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118.
Plea
On October 5, 2020, appellant pleaded no contest to both counts and admitted the prior strike conviction pursuant to a negotiated disposition for an indicated maximum term of four years, and the court’s consideration of a request to dismiss the prior strike conviction.
Presentence Report
On March 5, 2021, appellant filed a sentencing brief and requested dismissal of the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Defendant was arrested and booked on the underlying crimes on June 16, 2016, in the city of Patterson, in western Stanislaus County. He was released on bail on June 18. On June 20, 2016, the Stanislaus County District Attorney filed a complaint charging defendant with criminal threats (Pen. Code, § 422, subd. (a); count 1) and carrying a loaded firearm in a public place (§ 25850, subd. (c)(6); count 2).
Defendant failed to appear on July 6, 2017, and a bench warrant was issued. He was later arrested and booked into the Alameda County jail on September 3, 2017, on active warrants from Alameda and Contra Costa Counties and the July 6, 2017, warrant from Stanislaus County in the present case. He resolved the Alameda probation violation with credit for time-served on September 7, and was transported to Stanislaus on the pending warrant on September 8, 2017.