CA Unpub Decisions

On July 9, 2020, the Merced County District Attorney filed an information charging defendant with the premeditated murder of Santiago Perez Mantar (Pen. Code, §§ 187, subd. (a), 189; count 1), premeditated attempted murder (§§ 664, 187, subd. (a), 190.2, subd. (a)(1); count 2), two counts of second degree robbery (§ 211; counts 3 & 5), three counts of assault with a firearm (§ 245, subd. (a)(2); counts 4, 6, & 7), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8). The information further alleged that defendant had suffered three prior “strike” convictions within the meaning of the Three Strikes law §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as prior serious felony convictions (§ 667, subd. (a)(1)).

On July 10, 2017, Carbajal battered his girlfriend, R.V., held her at knifepoint in her own house, hit her repeatedly, threatened to cut out her eyes and chop her up, and threatened to kill her family. As she fled, he urged her not to call law enforcement. After Carbajal was incarcerated, he contacted R.V. by telephone and letter numerous times, urging her not to talk to anyone outside of his own attorney, stating things like “if there’s no victim there’s no crime” and later telling her he would only get out if she testified “nothing happened.”
Carbajal was charged with two counts of inflicting corporal injury on a person in a dating relationship (counts 1 & 2; Pen. Code, § 273.5, subd. (a)) ; one count of making a criminal threat (count 3; § 422); one count of felony false imprisonment (count 4; § 236); one count of dissuading a witness (count 5; § 136.1, subd. (b)(1)) and eight counts of attempting to dissuade a witness (counts 6-12; § 136.1, subd. (b)(2)).

A detailed discussion of the facts is unnecessary to our resolution of the appeal. Briefly, Darelle Robertson was found dead in an alley behind the home of his aunt, T.S., a close friend of Embry’s. Robertson had been shot once in his upper left back. It was undisputed that Embry, who was visiting T.S., shot Robertson after numerous confrontations between the two that preceded the shooting. Robertson’s girlfriend, J.W., happened to be in the vicinity of the shooting.
Robertson, who did not like Embry, aggressively initiated the confrontations. He stood at six foot four, weighed 275 pounds, and was approximately 35 years old. He had a blood alcohol content of .263 at the time of his death. Embry was 60 years old, weighed 180 pounds, and was recovering from rotator cuff surgery and therefore only had the full use of one arm when he shot Robertson. Embry attempted to turn himself in prior to his arrest.

Grant and Kendra married on February 14, 2009, and separated on August 16, 2018. Together, they had three children. In addition, Grant had one child from a prior relationship and Kendra had two children from a prior relationship. Grant was a stay-at-home father, caring for the children while Kendra worked a full-time job.
On November 5, 2018, Kendra petitioned for dissolution of her marriage (divorce petition) to Grant in the Tulare County Superior Court. In her divorce petition, she sought legal and physical custody of the children with supervised visitation rights for Grant, an order terminating the court’s jurisdiction to award support to Grant, confirmation of their residence and certain specified assets as Kendra’s separate property, and a determination of the parties’ rights to specified community and quasi-community assets and debts including, without limitation, the parties’ residence. In her petition, Kendra valued the residence at $325,000 with debt of $243,105.

Defendant was convicted of a violation of Penal Code section 290.018(b) (failure to register). He was released on parole after serving one year nine months of a two-year eight-month sentence. On July 20, 2020, he was given a document entitled Special Conditions of Parole, which he signed in the presence of his parole agent, Agent Q. One of the conditions required defendant to have continuous Global Positioning System (GPS) monitoring. Another condition provided, “You shall charge the GPS device at least two times per day (every 12 hours) for at least one full hour each charging time. You shall contact your parole agent immediately if and when the device vibrates and/or makes and audible tone.”
A petition for revocation of parole was filed on November 29, 2021, alleging that defendant failed to keep his GPS unit charged.

On April 18, 2017, defendant was convicted of lewd acts on a child under 14 years old (Pen. Code, § 288, subd. (a)) and was sentenced to three years in state prison. Three years later, defendant was released from prison under various terms and conditions, including reporting to his parole officer within 24 hours for placement of a global positioning system (GPS) monitor pursuant to Penal Code section 3010.10, subdivision (a). Defendant signed and acknowledged his parole terms and conditions upon release.
On October 27, 2021, defendant’s parole agent received information that defendant was released from custody in Blythe. After defendant failed to report to obtain a GPS device by the following day to the jail facility nearest to where he was originally arrested (in this case the Robert Presley Detention Center in Riverside), a petition to revoke defendant’s parole was filed.

In October 2018, McCurdy pled guilty in San Diego County to first degree burglary and inflicting corporal injury on his spouse. (Pen Code, §§ 459, 273.5.) The trial judge sentenced him to five years but suspended execution of the sentence and placed him on probation. The judge also issued a criminal protective order prohibiting McCurdy from contacting the victim directly or through a third party. In 2019, McCurdy successfully transferred his probation to Riverside County. In 2020, McCurdy and his victim were involved in a family law matter in San Diego County involving the custody of their two children.
In August 2020, the district attorney alleged McCurdy had violated the terms of his probation. Relevant here, they alleged he had failed to follow reasonable directives of the probation officer by (1) leaving Riverside County in April 2020 without permission from his probation officer and (2) sending a Mother’s Day card to his domestic violence victim in May 2020.

A. DEMURRER
Descriptions of the administrative case and writ petition are provided ante, so we begin this section with the demurrer. In the demurrer, the AG contended, “[The Finanders] cannot sue the []AG in order to challenge the ALJ’s order denying Marlene’s request that Brian be allowed to represent her. [The Finanders] seek unavailable relief from an improper party.” The AG continued, “If [the Finanders] believe the ALJ misinterpreted the [Administrative Procedure Act], they should have sought relief against [the Office of Administrative Hearings] or CalSTRS.”
B. OPPOSITION
In the Finanders’ opposition to the demurrer, they asserted, “[T]he []AG says that it is the wrong party in this matter—but strangely, it admits that the only other official who—in theory—could rule on this—has already issued an order simply denying this! So, in theory, if this petition has merit . . .—who is it that will issue any ‘order’ [or ‘writ’] confirming/allowing this?

Defendant and another man tried to rob a marijuana dispensary on May 2, 2014. Both men were armed. A dispensary employee was also armed, and when he drew his gun, one of the intruders shot at the employee, and he returned fire. The intruders and the employee continued to exchange gunfire until the intruders fled in a vehicle.
On January 30, 2015, a jury found defendant guilty of attempted murder (§§ 664, 187, subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), attempted robbery (§§ 664, 211, count 3), and burglary (§ 459, count 4). Defendant admitted he had served four prior prison terms. (§ 667.5, subd. (b).) On September 18, 2015, a trial court sentenced him to a total term of 13 years in state prison.
Defendant appealed, and this court affirmed the judgment. (People v. Majied, supra, E064830.)

Eldereiny invested in a date palm growing operation run by the Fejleh brothers. His close friend Ahmed explained that for a $1,000 investment per tree, he could reap returns of $5,000 in 9 or 10 years through sales of dates and mature palm trees. In 2007, Eldereiny invested in ten trees, offering free school tuition for Ahmed’s two children worth $10,000. Four years later, Eldereiny invested in another 45 trees, paying $40,000 after a 5-tree discount.
A decade passed, but Eldereiny never received any share of the profits. When he approached Ahmed, he was told the companies had no money. Ahmed said that costs were higher and yields lower than expected. Eldereiny received a $25,000 check for a “Loan Payoff,” but the check did not clear.
Searching the internet, Eldereiny learned that the Fejlehs were selling dates and date trees at substantial prices. He concluded he was owed $500,000 under the joint venture agreement.

On July 24, 2020, Fleer was charged with 20 sex offenses involving four minor victims. The complaint alleged three counts of contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a)), six counts of sending harmful matter with intent to seduce a minor (§ 288.2, subd. (a)), two counts of attending an arranged illicit meeting with a minor (§ 288.4, subd. (b)), one count of oral copulation by a person over 21 with a person under 16 (§ 287, subd. (b)(2)), two counts of lewd act upon a child 14 or 15 years old (§ 288, subd. (c)(1)), three counts of pandering for prostitution (§ 266i, subd. (a)(6)), one count of attempted lewd act upon a child (§§ 664, 288, subd. (a)), and two counts of arranging a meeting with a minor for lewd and lascivious behavior (§ 288.4, subd. (a)(1).)
Fleer pled guilty to all counts on May 7, 2021. On the plea form and a written addendum, Fleer admitted the factual basis for each of the charged crimes.

In late summer, early fall of 2020, defendant and his victim were at home. The victim was 12 years old. After drinking alcohol to intoxication, defendant told the victim it was “bedtime,” then followed her into her bedroom. When she laid down on the bed, defendant removed the victim’s underwear, grabbed her breast, licked her vagina, and put his fingers inside her vagina.
After that initial assault, defendant grabbed his victim’s bare breasts on multiple occasions, until February 21, 2021, when the victim confronted defendant about the conduct in front of her mother, and victim’s mother then reported defendant to law enforcement. Following an investigation, defendant was arrested and charged with continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)), forcible oral copulation with a minor under the age of 14 (§ 287, subd. (c)(2)(B)), and sexual penetration by a foreign object of a minor under the age of 14 (§ 289, subd. (a)(1)(B)).

Following a jury trial, defendant was convicted of first degree murder of a fetus (Pen. Code, § 187, subd. (a)), infliction of corporal injury on the mother of his child (§ 273.5), and assault with a deadly weapon (§ 245, subd. (a)(1)). In addition, the jury found true that defendant personally used a knife in the commission of each count (§ 12022, subd. (b)(1)), personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and personally inflicted injury resulting in the termination of a pregnancy as to both the domestic violence and assault with a deadly weapon counts (§ 12022.9, subd. (a)). (People v. Poplin (Feb. 16, 2012, C064754) [nonpub. opn.].) In 2010, the trial court sentenced defendant to state prison for a determinate term of 13 years, plus an indeterminate term of 50 years to life.

The facts underlying defendant’s offense are immaterial to this appeal. It suffices to say that in June 2020, while incarcerated in the Butte County Jail, defendant spat into the face of a correctional officer. Regarding that conduct, in May 2021, defendant pled no contest to the offense of battery by gassing, a violation of Penal Code section 243.9, subdivision (a).
In a presentencing report, a probation officer recommended imposition of the upper term of four years of imprisonment. The probation officer noted aggravating circumstances for sentencing purposes, including: “[D]efendant’s prior convictions . . . are numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)); and “[t]he defendant has served [a] prior prison term[]” (id., rule 4.421(b)(3)).