CA Unpub Decisions

On March 4, 2003, an information was filed alleging appellant and Robert Lynn Upchurch committed murder. Appellant was ultimately convicted of second degree murder after a jury trial.
In appellant’s direct appeal from his conviction, this court provided a factual background regarding the evidence presented at trial and noted that the prosecution had proceeded only upon a charge of second degree murder, relying on an implied malice theory and a second degree felony murder theory. (People v. Wedel (May 3, 2005, F044476) [nonpub. opn.].)
On June 11, 2020, appellant petitioned for resentencing under Penal Code former section 1170.95 by submitting a preprinted form.

Adrian and Magdalena, in consultation with their respective counsel, stipulated to numerous facts in advance of trial including, without limitation, the duration of their marriage. They married on February 18, 1995, and separated on November 27, 2008. On April 8, 2009, Magdalena petitioned for dissolution of her marriage to Adrian. A default judgment of marital dissolution was entered in the Tulare Superior Court on October 29, 2009.
The default judgment contained provisions for child custody and visitation; child support; division of the parties’ assets, debts, and obligations; and equalizing payments. No spousal support was ordered but the Tulare Superior Court reserved jurisdiction to make such an order in the future.
Among the assets addressed by the default judgment was real property located in Terra Bella, California (36 Acres), which was gifted to the parties by Adrian’s parents in 2003 and 2004.

Defendant shot the victim, Wallace Varela, in the early morning hours of August 25, 2013. At trial, the prosecution argued the shooting was premeditated and that defendant had the intent to kill. The defense argued defendant shot the victim in self-defense.
Prosecution
On August 25, 2013, Alberto S. and his brother, Wallace, went to a party in Lindsay at around 9:00 or 10:00 p.m. They were there for about 30 minutes and the police arrived. Alberto and Wallace then left the party and went to their cousin’s house. Their other cousin Mark heard about another party in Porterville; Wallace, Alberto, and Mark decided to go. As they were entering the house, an individual standing outside asked Mark about his hat, which made Mark uncomfortable. When they were inside the house, Alberto saw nine people in the living room who Alberto described as having the “demeanor” of “gang bangers” based on the way they talked, dressed, and acted. Defendant was among those nine people.

When this homicide occurred, appellant and Keel were cellmates at Kern Valley State Prison, a level IV maximum security prison. Appellant and Keel chose to live together, and they had resided in the same cell for about seven months. At trial, appellant told the jury that Keel had been his friend. According to appellant, Keel had been a good cellmate.
Both at trial and in the present appeal, appellant admits that he killed Keel. During opening statements below, the defense conceded that appellant had killed Keel using his hands and feet, and it was bloody. The jury learned that Keel had been badly beaten inside the cell he shared with appellant. Keel died as a result of blunt force trauma to his head. He had multiple fractures to his skull and forehead, and one of his eyes was detached. Keel had aspirated blood in his lungs. He had a postmortem ligature injury to his neck, and the thyroid cartilage in his neck was fractured.

On April 5, 2019, personnel from the San Bernardino County Children and Family Services (the department) received a referral alleging physical abuse by mother and J.K. (father) (collectively, the parents) to H.H. (born Nov. 2005), general neglect by mother to R.Y. (born Feb. 2007) and H.H., emotional abuse by mother to all the children, and emotional abuse by father to minor. Father was alleged to be a chronic opioid user due to a back injury. Father had stated on multiple occasions that he wanted H.H. out of the house, and H.H. was ruining their family. The parents acknowledged that father had been trying to get H.H. arrested for the past one-and-a-half years so that H.H. would be out of the house and the parents would no longer be responsible for him. H.H. said he was locked in his room “fulltime.” He said that as part of his punishment, the parents did not send him to school. He reported sleeping on the floor with a jacket and blanket. H.H. said he had no heat in his room.

On February 21, 2020, B.T.’s son, plaintiff and respondent K.J.T. (Son1), requested an elder abuse protective order against Tzankov, protecting B.T.; B.T.’s adult son K.T. (Son2); and Son2’s wife. Tzankov was B.T.’s live-in caretaker for over 15 years. Son1 asserted that, over the years, Tzankov “used guilt and intimidation” to gain control of B.T.’s finances. B.T.’s money was used to purchase Tzankov a $77,000 motorhome and three Audi sedans. In January 2020, Tzankov allegedly stole $10,000 in cash from B.T.’s safe. Tzankov was the beneficiary of a $100,000 life insurance policy on B.T.’s life.
On January 24, 2020, B.T. called Son1, who is a physician, and complained of feeling dizzy and feverish and having low blood pressure. Son1 told B.T. to go to the emergency room. Tzankov delayed B.T. going to the hospital by one day. When B.T. arrived at the hospital, she had “signs of life threatening sepsis/bacteremia, pneumonia, and . . . dangerously altered cardiac rhy

On April 18, 2008, defendant and appellant Adrian Gilbert Federico entered a plea agreement and pled guilty to assault with a firearm. (Pen. Code, § 245, subd. (a)(2), count 1.) He also admitted that he personally used a firearm in the commission of the offense (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), personally inflicted great bodily injury (GBI) (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). In accordance with the agreement, the trial court sentenced him to a total term of 20 years in state prison, consisting of three years on count 1, plus the midterm of four years on the personal firearm use enhancement, three years on the GBI enhancement, and 10 years on the gang enhancement.

In July 2010, a jury convicted Joel Elias Sanchez of second degree murder (Pen. Code, § 187, subd. (a)) and found Sanchez personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). Sanchez was sentenced to an indeterminate term of 40 years to life in prison.
Sanchez appealed and this court affirmed the judgment in an unpublished opinion. (People v. Sanchez (June 4, 2012, D060315).)
In 2019, Sanchez filed his first petition for resentencing under section 1170.95. After appointment of counsel and a hearing, the court found the record demonstrated Sanchez was the actual killer and that the jury was not instructed on natural and probable consequences or felony murder. Sanchez appealed and this court affirmed the order denying his petition. (People v. Sanchez (July 1, 2020, D077326) [nonpub. opn.].)
In February 2022, Sanchez filed another petition for resentencing under section 1170.95.

A. Family History
Mother and Father are legally married and have multiple children together. The family has a long history of involvement with child welfare agencies. Over the years, the Agency received multiple reports about Mother’s untreated mental health conditions and concerns that the children were not properly fed or cared for. There were also reports of domestic violence and verbal abuse between the parents and excessive physical discipline of the children. The family has struggled with housing instability, accessing and participating in services, and maintaining sufficient aid levels to meet minimum standards for food, clothing, and shelter.
B. J.Y.’s Detention
In October 2019, J.Y.’s umbilical cord tissue tested positive for both marijuana and cocaine at birth, which indicated Mother used drugs during the last trimester of her pregnancy. Nursing staff fed J.Y. in the hospital when Mother did not respond to the newborn’s cues.

In 1997, a jury convicted Lee Vert Quillar of causing a fire in an inhabited structure (Pen. Code, § 452, subd. (b); count 1), arson of the property of another (§ 451, subd. (d); count 2), assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), and false imprisonment by violence involving the personal use of a deadly weapon (§§ 236, 237; count 4). The jury found true an allegation that Quillar committed count 4 using a knife as a deadly weapon. (§ 12022, subd. (b).)

As the parties do, we take our summary of the relevant facts from this court’s prior opinion in Bragg’s direct appeal. (People v. Bragg (June 13, 1994, C015773) [nonpub. opn.].)
Sometime after 11:00 p.m. on May 5, 1992, gun shots were fired at a car occupied by Rachelle Jones and her boyfriend, Alfonso, from another car as they were driving on a freeway in Stockton. One of the shots struck Jones, causing her car to leave the freeway and come to rest against a cyclone fence. Jones died from a gunshot wound to the chest.
Alfonso testified that Jones had picked him up outside M.M.’s apartment complex on the night of the shooting. As Alfonso waited for Jones at a parking stall at the rear of the complex, M.M. pointed to a car that was leaving a nearby alley. Alfonso recognized the car as belonging to defendant. After Jones arrived and picked up Alfonso, she drove down the same alley that defendant’s car had driven through.

In February 2020, Naomie and her husband Erik filed for divorce. In May 2020, Naomie and Hopkins, who met in second grade, rekindled their friendship with each other. In early July 2020, Naomie and Hopkins had a brief physical relationship. Thereafter, on July 6, Naomie sent an e-mail to Hopkins in which she apologized and said she was “in no way ready to provide anything more than friendship” to Hopkins. Hopkins assured Naomie she need not apologize, and offered to “back off” if needed. They continued their friendship.
In September 2020, Naomie sent Hopkins a text message saying that although she enjoyed their friendship, it was apparent they were “not quite on the same page,” because she wanted only friendship while he seemed to want more. Shortly thereafter, Naomie told Hopkins there was no possibility of a dating relationship. Hopkins responded with a lengthy e-mail seeking to define the terms of their relationship, to which Naomie did not respond.

The prosecutor filed an information charging defendant with felony criminal threats (count 1) and misdemeanor corporal injury on a spouse or child’s parent (count 2) and with enhancement allegations of a prior strike conviction and a prior serious felony conviction. As part of the plea agreement, the information was amended to add a count 3, felony willful infliction of corporal injury on a spouse or child’s parent causing a traumatic condition and defendant would plead no contest to count 1 and count 3. The plea agreement called for the court to release defendant for six weeks with a waiver of his sentencing rights under People v. Cruz (1988) 44 Cal.3d 1247, 1254, and the requirement he report to the probation department. If he complied with the terms of his release, defendant would be able to withdraw his plea to the criminal threats charge and would be sentenced to no more than the middle term on the remaining count.

Because the sole issue raised in mother’s and father’s respective appeals is ICWA compliance, we focus primarily on the facts and procedural background relevant to that issue. In June 2018, the Department filed a petition under section 300, alleging minor and her older half-sister were dependents, based on mother’s and father’s domestic violence, substance use and abuse, and mental and emotional problems. Mother told a social worker she had no knowledge of any Indian ancestry, and both parents filed ICWA-020 forms stating that they had no Indian ancestry as far as they knew. Also in response to questioning from the court at each of their first appearances, both parents verbally denied any knowledge of Indian ancestry. On July 20, 2018, the court found no reason to know ICWA applied.
During its investigation, the Department interviewed a maternal aunt and a paternal aunt, but did not ask either whether they had any information about possible Indian ancestry of the minor.