CA Unpub Decisions

This case returned to us from the California Supreme Court with directions to vacate our prior opinion and reconsider the matter in light of recent legislation. As we will explain, external events have rendered the appeal moot and we now order it dismissed.

Defendant Greg Eugene Carter was convicted by jury of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and was sentenced to the upper term of four years in prison. On appeal, defendant contends that the trial court committed prejudicial error by instructing the jury that a knife may be an inherently deadly weapon. He also argues that his conviction must be reversed because the prosecutor committed misconduct in rebuttal argument and violated his constitutional rights to counsel and due process. Lastly, defendant contends that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which amended Penal Code section 1170, subdivision (b) (section 1170(b)) effective January 1, 2022, to make the middle term the presumptive sentence unless certain circumstances exist, applies retroactively to him and requires remand for resentencing.
For reasons that we will explain, we will remand the matter for resentencing under amended section 1170(b).

This appeal arises from orders granting two postjudgment motions for attorney fees filed by Trabuco Highlands Community Association (Association). Finding no error, we affirm the postjudgment orders.

In December 2018, the City of Los Angeles (the City) adopted ordinance No. 185931 (the Short-term Rental Ordinance) which places restrictions on short-term rental units in the City. In June 2019, Lance Jay Robbins Paloma Partnership (Paloma) and Lance Robbins brought a petition for writ of mandate (the Petition) alleging the Short-term Rental Ordinance was illegal on its face within an area called the Venice coastal zone because the City had violated the California Coastal Act of 1976 (the Coastal Act) (Pub. Resources Code, § 3000 et seq.) by not first obtaining a coastal development permit (CDP).

Plaintiffs William Young and Jennifer Young were in the business of exporting vehicles to China, but the legitimacy of their business is unclear. They apparently avoided import duties by purchasing vehicles in the United States and selling them to people who shipped them to China, where they ultimately were sold to dealers. To acquire the vehicles in the United States, plaintiffs used brokers who acted as straw purchasers.
In 2016, plaintiffs purchased a Mercedes-Benz from a third-party broker, Source Specialist, LLC (Source Specialist). Unknown to plaintiffs, Source Specialist acquired the vehicle by recruiting another straw purchaser to lease the vehicle from defendant Keyes European, LLC (Keyes European), a Mercedes-Benz dealership. Source Specialist sold the vehicle to plaintiffs but did not deliver the title to it.

Clyde R. (father) appeals the juvenile court’s order terminating his parental rights to C.R. (born September 2020) pursuant to Welfare and Institutions Code section 322.26. He contends the juvenile court erred by finding that the Stanislaus County Community Services Agency (agency) adequately investigated C.R.’s possible Indian ancestry as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related state statutes. We find no error and affirm.

Defendant Vong Phomvilay previously appealed his convictions of second degree murder (count 1), attempted murder (count 2), and unlawful possession of a firearm (count 3). Our court reversed the attempted murder and unlawful possession of a firearm convictions and remanded for resentencing. This is an appeal from the resentencing hearing held in February 2021.
At resentencing, defendant was resentenced on count 1 and the court reimposed the same court security fee and criminal conviction assessment fee previously imposed. The abstract of judgment from the resentencing hearing also lists the same amount of credit for time served calculated at the original sentence hearing (932 days of actual time).
On appeal, defendant contends the court erred in imposing the same fees previously imposed because he is now only convicted of one charge. He also contends the abstract of judgment must be amended to reflect his updated custody credits.

L.C. (Mother) appeals from the juvenile court’s order terminating her parental rights as to her 20-month-old son E.T. Mother’s sole contention on appeal is that the order must be reversed because the Riverside County Department Public Social Services (the Department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and with Welfare and Institutions Code section 224 et seq. The Department agrees. For the reasons explained herein, we conditionally reverse the judgment and remand the matter with directions the Department and the juvenile court comply with the inquiry and, if applicable, the notice provisions of the ICWA statutes. If after such compliance the juvenile court finds the child is not an Indian child, the judgment terminating parental rights shall be reinstated.

A jury found defendant and appellant Kevin Bryan Johnson guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 & 2) and one count of misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). Defendant was sentenced to a total term of five years in state prison as follows: the upper term of four years on count 1, plus a consecutive term of one year (one-third the middle term) on count 2; and a concurrent term on count 3. On appeal, defendant contends (1) the trial court erred when it denied his request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta); (2) the trial court erred by not sua sponte instructing the jury on simple assault as a lesser included offense of assault with a firearm; and (3) the matter must be remanded for a new sentencing hearing under newly enacted sentencing laws. The People agree the matter should be remanded for a new sentencing hearing, but disagree with defendant’s remaining contentions.

In 2013, defendant and appellant Maria Lopez pled no contest to attempted second degree murder (Pen. Code, §§ 664/187, subd. (a)), and admitted the personal use of a firearm (§ 12022.5, subd. (a)) allegation. In exchange for her plea, the remaining allegations were dismissed, and defendant was sentenced to a stipulated term of 13 years in state prison.
In April 2021, after she was released from custody, defendant filed a petition to expunge her case under Assembly Bill No. 2147 and section 1203.4b, which gives trial courts the discretion to grant such relief to certain defendants, such as those who have successfully participated in the California Conservation Camp Program (fire camp). The trial court thereafter appointed counsel and held a hearing on the petition. Following an in-chambers conference, the court denied the petition, believing it did not have discretion to grant defendant relief due to her attempted murder conviction.
On appeal, defendant contends the trial court er

A jury convicted Andres Ybarra of second degree murder after his girlfriend Ruby L. was found dead lying in bed with visible bruising on her arm and forehead, a swollen nose, and blood on the pillow. The autopsy indicated that Ruby died from strangulation and complications from multiple blunt force trauma, but potentially fatal levels of prescription drugs were also found in her system.
Ybarra raises three broad evidentiary challenges on appeal. He contends the trial court erred in admitting previously suppressed evidence found on Ruby’s cell phone, excluding evidence that the pathologist who did Ruby’s autopsy had a prior misdemeanor DUI conviction, and excluding various evidence probative of Ruby’s alleged past prescription drug abuse. We reject each of these claims, finding either no error or no prejudice. We likewise conclude there was no cumulative error depriving Ybarra of a fair trial.

A jury convicted Steve Sengphachanh of a lewd act on Jane Doe, the 12-year-old daughter of his best friend, and found true the allegation he had “substantial sexual conduct” with Jane, making him ineligible for probation. (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8).) The jury deadlocked on the charge that Sengphachanh committed aggravated sexual assault of Jane. (§ 269, subd. (a).) The trial court declared a mistrial as to that charge and later dismissed it on the People’s motion. The court sentenced Sengphachanh to the upper term of eight years in state prison and imposed various fines and fees.
On appeal, Sengphachanh asserts several errors deprived him of his constitutional right to a fair trial and mandate reversal of his conviction.

This case arises out of a business dispute between several parties to licensing agreements to operate sandwich restaurants under the trademark “Sourdough & Co.” We are presented with the question of whether a cause of action for fraud and deceit, raised in a cross-complaint, is subject to an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court denied the anti-SLAPP motion filed by GSD Foods, Inc., Davinder Singh, Powerglide Holdings, LLC, Kaldeep Uppal, and SD-Folsom, Inc. (collectively GSD) to strike the cause of action for fraud and deceit in a cross-complaint filed by Sourdough & Co, Inc., SFSE of EDH, Inc., Lowell Steven Presson, R. Gordon Ross, and David Bagley (collectively Sourdough). The trial court reasoned that the claim for fraud and deceit related to statements inducing Sourdough to enter the agreements rather than to any protected activity related to the right of access to the courts.

Mother Tracy J. appeals from the juvenile court’s order terminating her parental rights to her daughter S.S. (born November 2019). Mother contends the order must be reversed because the Los Angeles County Department of Children and Family Services (Department) failed to comply with its duty of initial inquiry under state law (Welf. & Inst. Code, § 224 et seq.) implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it did not ask certain extended family members if the child had Indian heritage. We conclude substantial evidence supports the juvenile court’s finding that ICWA does not apply and affirm.