CA Unpub Decisions

Defendant and appellant Barbara A. Allotey pleaded guilty to one count of CALFRESH or Supplemental Nutrition Assistance Program (SNAP) fraud (count 3) in violation of Welfare and Intuitions Code section 10980, subdivision (g)(2). In return, the remaining eleven counts were dismissed and defendant was placed on probation for a period of three years. Following a restitution hearing, the trial court awarded $1,051,036 in restitution to the United States Department of Agriculture (USDA). Defendant’s sole contention on appeal is that the trial court abused its discretion in awarding $1,051,036 in victim restitution because there was insufficient evidence to support that amount. We disagree and affirm the restitution order.

Defendant and appellant Lawrence Anthony Nash was with a group of friends when they confronted the victim, who was visiting his uncle’s house next door. One of defendant’s cohorts, Anthony Barrow, sucker punched the victim in the face. Barrow pushed the victim into a nearby SUV, shattering the window. Defendant jumped over the fence between the two properties and rushed at the victim with a sharp object that the victim and his mother identified as a knife. Defendant told the victim that he was going to kill him, and then stabbed the victim in the head causing a puncture wound.
Defendant claims in his opening brief on appeal that (1) insufficient evidence was presented to support his conviction of assault with a deadly weapon other than a firearm as there was no substantial evidence that he had a knife; (2) his criminal threat conviction must be reversed because there was no substantial evidence the alleged threat caused the victim to fear for his safety;

In 2016, plaintiff Stephanie Hargrove initiated this action against defendants and respondents San Bernardino Convalescent Operations, Inc., dba Legacy Post-Acute Rehabilitation Center (Hargrove’s former employer; SBCO), Indio Nursing & Rehabilitation Center, Inc. (another skilled nursing facility where Hargrove was never employed; INRC), and Legacy Healthcare, Inc. (managerial and support services corp.; Legacy) under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). Approximately four years later, in 2020, Hargrove died. Her attorneys requested leave to file an amended pleading to substitute movant and appellant Makiya Cornell in place of Hargrove to prosecute the PAGA claims; however, on October 6, 2020, the trial court denied the request, dismissed the action, and stated that Cornell “is free to file her own claim and her own causes of action.”

Defendant Sandra Burns sought approval to build a wall across her front yard, and when her homeowners association said no, she built it anyway. After multiple attempts to get her to stop construction (and later to mediate the issue) failed, the association sued Burns, seeking a permanent injunction requiring her to remove the wall. Following a two-day bench trial, the judge found Burns had willfully violated her community’s declaration of covenants, conditions, restrictions and reservations (CC&R’s) and issued the injunction.
On appeal, Burns asserts two grounds for reversal. She argues the trial judge erred by failing to find that: (1) the affirmative defense of equitable estoppel applied to justify her construction of the wall, and (2) the association acted unfairly and discriminatorily because they have allowed other homeowners to build walls in their front yards. We conclude these contentions lack merit and affirm.

In 2015, defendant Rashid Deary-Smith was found guilty of, among other things, attempted murder and sentenced to prison. In 2020, following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to Penal Code section 1170.95. The trial court denied the petition based on what it then deemed to be controlling authority standing for the proposition that individuals convicted of attempted murder, as opposed to murder, were not eligible for Senate Bill 1437 relief. The court further concluded defendant failed to make the requisite prima facie showing. Defendant appealed. After the matter was initially fully briefed, we directed the parties to submit supplemental briefing on the effect, if any, of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, on defendant’s appeal.

Defendant Charles Thomas Cross appeals from the trial court’s denial of his request to recall his sentence and resentence him pursuant to former Penal Code section 1170, subdivision (d)(1) (section 1170(d)(1)). He argues the trial court abused its discretion in denying said request. He also argues the case should be remanded due to the recent enactment of Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719) (Assembly Bill 1540). The Attorney General concedes defendant is entitled to reversal and a resentencing hearing consistent with the provisions of Assembly Bill 1540. We accept the Attorney General’s concession and shall reverse and remand.

Paige M. appeals from the juvenile court’s order under Welfare and Institutions Code section 366.26 terminating her parental rights to her son, H.A., who is now almost two years old. She argues the juvenile court made an “unclear” or “ambiguous” finding, and may have considered improper factors, in ruling the parental-benefit exception under section 366.26, subdivision (c)(1)(B)(i), did not apply. She also argues the Los Angeles County Department of Children and Family Services failed to conduct an adequate inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) and related California law. We conclude that the juvenile court erred by failing to follow the test in In re Caden C. (2021) 11 Cal.5th 614 for determining whether the parental-benefit exception applies, but that the error was harmless. We also conclude the court failed to ensure the Department complied with its duty of inquiry under ICWA and related California law.

The juvenile court terminated the parental rights of S.C (mother) and J.S. (father) to their child I.S. under Welfare and Institutions Code section 366.26. Both parents appealed from the termination order, contending that it should be conditionally reversed and remanded for compliance with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901, et seq.) and related California statutes (§ 224 et seq.) No interested party filed a respondent’s brief; instead, the parents and the Department of Children and Family Services (the Department) filed a joint application and stipulation for conditional reversal and remand to the juvenile court for compliance with ICWA and the issuance of an immediate remand.
This case involves reversible error because the parties agree, and we concur, there was noncompliance with the inquiry requirements of ICWA and related California provisions.

Elmer Moreno Mendoza appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95. His appellate counsel filed a brief asking this court to proceed under People v. Wende (1979) 25 Cal.3d 436. We affirm.
On December 9, 1996, following a jury trial, Mendoza was convicted of one count of first degree murder (§ 187, subd. (a)) with a true finding on the allegation that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). He was sentenced to a term of 25 years to life, plus 10 years. A different panel of this division affirmed the judgment of conviction in People v. Mendoza (June 24, 1998, B108845) [nonpub. opn.].
On February 22, 2021, acting in propria persona, Mendoza filed a petition for resentencing pursuant to section 1170.95. In his handwritten petition, Mendoza alleged that he was charged with, and convicted of, first degree murder under the natural and probable consequences doctrine.

During dependency proceedings involving father P.G.’s children P., R., I., and C., father advised the court and the Los Angeles County Department of Children and Family Services (DCFS) that he was or may be a member of a non-federally recognized Indian tribe. Although the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) applies only to federally recognized tribes, DCFS sent the tribe notice of the proceedings prior to the permanency planning hearing. The tribe responded with a letter stating the children may be eligible for enrollment, explaining the enrollment process, and expressing interest in providing the children with cultural resources and services. The letter also stated that the tribe participates in dependency cases involving tribal children and requested further information about the case, including contact information for DCFS social workers and counsel.

Belkis R. and Rene B. appeal from the juvenile court’s jurisdiction findings and disposition orders declaring their children, seven-year-old Aiden B., six-year-old Adalynn B., and three-year-old Jose B., dependent children of the court under Welfare and Institutions Code section 300, subdivision (b)(1). Belkis and Rene contend substantial evidence did not support the court’s finding their children faced a substantial risk of serious physical harm as a result of the parents’ history of domestic violence and Rene’s substance abuse. Although the juvenile court did not remove the children from their parents, Belkis and Rene challenge the court’s orders requiring them to live separately and participate in domestic violence programs and counseling. Rene also challenges the order requiring him to submit to drug testing. We affirm.

Eugene R. and Bria S., parents of now six-year-old Lorissa R. and five-year-old Alexandria R., appeal separately from the juvenile court’s jurisdiction findings and disposition order declaring Lorissa and Alexandria dependent children of the juvenile court under Welfare and Institutions Code section 300. Bria does not contest jurisdiction, but she argues substantial evidence did not support the order removing the children from her custody. Eugene contests every basis of jurisdiction, as well as the orders removing the children from him and implementing a case plan that required monitored visitation, individual counseling, and domestic violence education. Bria and Eugene also contend the Los Angeles County Department of Children and Family Services did not comply with the inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law.

Bridgett Butler (Mother) appeals from a family law order modifying child support. She contends the family court erred in granting a downward deviation from the $16,319 per month guideline amount to $12,000 per month based on the high earner exception. Mother argues the family court erred in refusing to modify the parties’ 2015 stipulation that imputed $7,000 per month to her and asserts there was insufficient evidence to support a downward deviation from the guideline amount. We affirm.

Sandra Ortiz appeals from a judgment entered after the trial court granted the summary judgment motion filed by the City of Santa Clarita (City). Ortiz was hit by a vehicle while walking across the Sierra Highway in Santa Clarita at night after leaving a market alongside the highway. The location where Ortiz crossed was more than 400 feet from an unmarked crosswalk and 0.7 miles from a marked crosswalk. Ortiz sued the City for a dangerous condition of public property under Government Code section 835.
On appeal, Ortiz contends there were triable issues of fact whether the location of Ortiz’s accident was in a dangerous condition. Ortiz also argues in her supplemental briefing that she presented evidence showing the City knew or should have known the accident location constituted a dangerous condition in sufficient time to prevent the accident. We affirm.