CA Unpub Decisions

June Taylor died in September 2014. She was 90 years old. Eight weeks after her death, her son filed a complaint seeking to partition residential property in Ben Lomond she had purchased in 1992. He alleged a tenancy-in-common with his sister, defendant Lea Taylor Babcock, with each holding a 50 percent interest in the property. Plaintiff later filed an amended complaint claiming a 75 percent interest in the property, with his sister holding the remaining 25 percent interest.

S.S. was sexually abused twice by her father (Father). After each incident, S.S.’s mother (Sherrie L.; Mother) let Father back in the family home. After Father was found back in the home the second time, he was arrested, convicted and incarcerated, and S.S. was removed from Mother’s care. After 18 months of reunification services, the juvenile court found S.S. could not safely be returned to Mother’s care, terminated her services, and scheduled a Welfare and Institutions Code section 366.26 permanency planning hearing. Mother filed a writ petition challenging the juvenile court’s decision, arguing there was insufficient evidence that S.S. would suffer physical or emotional detriment if returned to her care. We deny the petition.

Peter Lad Tallo (appellant) appeals from a judgment entered after a jury convicted him of receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a) ) and misdemeanor possession of burglar tools (§ 466). The trial court found true an alleged prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and an alleged prior prison term commitment (§ 667.5, subd. (b)) and sentenced him to six years in state prison. Appellant contends the judgment must be reversed because he was provided with ineffective assistance of counsel. We reject the contention and affirm the judgment.

Brittany Navarra (defendant) stands convicted, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a); count 1), first degree burglary (§ 459; count 2), and conspiracy to commit murder (§ 182, subd. (a)(1); count 3). The jury further found true a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) with respect to count 1. Defendant was sentenced to life in prison without the possibility of parole (LWOP) and ordered to pay various fees, fines, and assessments.

This is the second appellate proceeding arising from the same order issued by the superior court. After the order at issue here was entered by the trial court, Kevin Mallard filed a notice of appeal on November 2, 2016. On November 18, 2016, Mallard also filed a petition for writ of habeas corpus in case D071345. Thereafter this court issued an order to show cause why the relief should not be granted in the habeas proceeding.
On January 12, 2017, Mallard filed his opening brief on appeal. On January 27, 2017, this court issued a published opinion in the habeas corpus proceeding in which the court denied the petition and addressed all the grounds for relief now raised in the current appeal. (In re Mallard (2017) 7 Cal.App.5th 1220 (Mallard).) We have granted the respondent's request to take judicial notice of the file in Mallard.

A jury convicted Robert Samson Lopez of first degree murder in connection with the shooting death of his nephew. He was sentenced to 50 years to life in prison. On appeal, Lopez argues that a standard jury instruction on perfect self-defense (CALCRIM No. 505) misstates the law and should not have been given below. He further contends that the trial court neglected a sua sponte duty to explain how provocation can negate premeditation and deliberation. In the alternative, Lopez claims ineffective assistance of counsel based on his trial attorney’s failure to request such an instruction. We find no error, and thus affirm the judgment.

Olaf Gustav Karlsen filed a petition for resentencing pursuant to the provisions of Proposition 47, the Safe Neighborhoods and Schools Act (hereafter the Act). The trial court denied the petition, concluding Karlsen was ineligible for resentencing. We agree and affirm the order denying Karlsen’s petition.

In 2014, Robert J. Johnston pleaded guilty to one count of attempted murder, with the personal use of a deadly weapon (Pen. Code, §§ 664/187, 12022, subd. (b)(1)); and one count of second degree burglary (§ 459). The remaining counts and allegations were dismissed. Johnston was sentenced to a determinate term of eight years eight months in prison.
In 2015, Johnston filed a petition pursuant to Proposition 47 (§ 1170.18, the Safe Neighborhoods and Schools Act) to resentence his burglary conviction as a misdemeanor. The trial court denied the petition stating: "Convictions for PC 664/187 and residential burglary-ineligible."

Defendant Michael Ruben James was serving an indeterminate term of 25 years to life under the Three Strikes law for a conviction of grand theft when Proposition 36 took effect in November 2012. Proposition 36, known as the Three Strikes Reform Act of 2012, added section 1170.126 to the Penal Code. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, §§ 1, 6, pp. 105, 109-110.) Section 1170.126 permits eligible persons “presently serving an indeterminate term of imprisonment” as a third strike offender for a felony offense that was not a serious felony (§ 1192.7, subd. (c)) or a violent felony (§667.5, subd. (c)) to “file a petition for a recall of sentence,” within the specified window period, for resentencing in accordance with the Three Strikes law as amended by Proposition 36. (§ 1170.126, subds. (a), (b), (c), (e).) A court receiving such petition must resentence “unless the court, in its discretion, determines that resentencing the petitioner

Following a jury trial, defendant and appellant Jessie Ray Jackson, Jr., was convicted of kidnapping (Pen. Code, § 207, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that he suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to state prison for a total term of 10 years. On appeal, he contends there was insufficient evidence of kidnapping, the trial court erred in instructing the jury, the prosecutor committed misconduct during closing argument, defense counsel was ineffective, and the cumulative error doctrine applies. Rejecting these contentions, we affirm.

A jury found defendant and appellant, Jariquel Hernandez, guilty as charged of two felony offenses: domestic violence inflicting injury on J.S., defendant’s cohabitant and the father of her three children (Pen. Code, § 273.5, subd. (a); count 1) and assaulting J.S. with a deadly weapon, a beer bottle (§ 245, subd. (a)(1); count 2). The court deferred pronouncing judgment and granted defendant three years’ supervised probation subject to terms and conditions.

In 2002, Samir Hanna (Hanna) was convicted of violating Penal Code section 289, subdivision (d), a felony offense. Hanna has long since served his one-year jail term on that conviction and successfully completed probation in 2004. In 2012, this court handed down People v. Lyu (2012) 203 Cal.App.4th 1293 (Lyu). Based on Lyu, Hanna contended he was factually innocent of the section 289 offense and asked the trial court to set aside his conviction. Specifically, Hanna requested that the trial court dismiss his case in the interest of justice under section 1385. The trial court denied Hanna’s motion. As section 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation, we affirm.

Mario Gutierrez appeals from the denial of a petition for recall of sentence and resentencing under the Three Strikes Reform Act of 2012, also known as Proposition 36. The trial court deemed him ineligible for relief based on its finding that the underlying offense, battery against a custodial officer (Pen. Code, § 243.1), was committed with intent to cause great bodily injury. Gutierrez claims the trial court exceeded its authority because (1) inmates who seek resentencing under Proposition 36 have a Sixth Amendment right to a jury determination regarding the existence of disqualifying factual circumstances, and (2) the trial court impermissibly relied on hearsay by basing its findings on information contained in an appellate court opinion and/or a preliminary hearing transcript. The case law is against him on both issues. We therefore affirm the challenged order.

A jury convicted Jason Andrew Gutermuth of attempted second degree robbery. (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (c); all further statutory references are to the Penal Code) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The court found he had a prior serious felony conviction (§ 667, subd. (a)(1).)
Gutermuth asserts the court misdirected the jury on the mens rea required for attempted robbery, and his attorney rendered ineffective assistance of counsel by failing to request a pinpoint instruction on the defense of accident or mistake. He does not challenge his conviction for resisting a peace officer. We affirm.