CA Unpub Decisions

Defendant Gary Glen Fox appeals from his sentence in three criminal cases. Specifically, defendant contends that we must remand for resentencing because the trial court’s imposition of an upper term sentence on the principal count does not satisfy the new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which took effect while his appeal was pending and applies retroactively to his case. The People agree.
We conclude Senate Bill 567 is an ameliorative statute that applies retroactively to defendant’s nonfinal case and defendant is entitled to resentencing under the amended statute. We accordingly vacate the sentence and remand the matter to the trial court to resentence defendant.

Defendant William Dan Chambers pleaded no contest to felony escape after the trial court denied his motion to reduce the charge to a misdemeanor. He appeals the denial but did not obtain a certificate of probable cause. We dismiss the appeal.

In 1989, a jury found defendant Guillermo Velazquez guilty of second degree murder and found true the allegation that a principal in the murder was armed with a firearm. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95 arguing the trial court improperly conducted a factual analysis at the prima facie stage. The Attorney General concedes the error. We reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).

In 2015, defendant Dajuan Spears (defendant) pled no contest, pursuant to a plea agreement, to two counts of assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245(d)(2)). Defendant admitted, in connection with one of these counts, that he personally discharged a firearm within the meaning of section 12022.53(b). On October 30, 2015, the trial court sentenced defendant to 17 years in prison.
In February 2021, defendant filed a petition asking the trial court to resentence him pursuant to section 1170.91. That statute “allows a person convicted of a felony who may have certain kinds of trauma as a result of his or her military service to petition for resentencing.” (People v. Pixley (2022) 75 Cal.App.5th 1002.) The trial court denied defendant’s request for section 1170.91 relief.
Defendant noticed an appeal from the trial court’s order. After examining the record, counsel filed an opening brief raising no issues.

In 2002, a jury convicted defendant and appellant Nora Andaya Bonnaudet of one count of first degree murder (Pen. Code, § 187, subd. (a)) for the death of her husband, Georges Bonnaudet. The jury also found true a special circumstance allegation that she committed the offense for financial gain. (§ 190.2, subd. (a)(1).) The trial court sentenced her to life in prison without the possibility of parole.
We described the facts of the case in detail in our opinion in Bonnaudet’s direct appeal, People v. Bonnaudet (July 27, 2004, B164987) [nonpub. opn.], and we will summarize them only briefly here: In 1989, Georges executed a will leaving almost all his possessions to Bonnaudet. The relationship later soured, and Bonnaudet began having an affair at some point before December 2000. In the year before his death in 2001, Georges told friends that he wanted to divorce Bonnaudet and did not want her to receive any of his money.

Mary Andrenetta Anderson (Anderson) underwent surgery at PIH Health Hospital–Whittier (PIH) to implant a medical device that prevents a pulmonary embolism. She sued PIH for medical malpractice for failing to obtain her informed consent and causing her to suffer years of pain from the implantation. The trial court granted summary judgment, finding Anderson failed to create a triable issue of fact in response to PIH’s expert opinions. Anderson appealed. Finding no error, we affirm.

In 1981, defendant and appellant Pamela Osborne pleaded nolo contendere to the second degree murder of Benjamine Quiroz (Pen. Code, § 187 ) and the trial court sentenced her to 15 years to life in state prison. On May 29, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. After an evidentiary hearing, the court denied the petition. On appeal, defendant contends the court failed to state the burden of proof it used to consider the prosecution’s evidence and erred in admitting into evidence her probation report and the transcript of her May 3, 2012, parole hearing during which she admitted she was the actual killer. We affirm.

Anthony Mendoza-Lopez (Mendoza-Lopez) was shot and killed at a party in 2018. Following a joint trial using two juries, defendant and appellant Justin Castaneda (defendant Castaneda) was found guilty of conspiracy to commit murder and defendant and appellant Emilio Delgado (defendant Delgado) was found guilty of conspiracy to commit murder and a substantive first degree murder charge. Defendants raise a multiplicity of issues on appeal, but, as we will explain, only their arguments concerning gang enhancements the jury found true in connection with the murder and conspiracy charges gain any traction—and that as a result of changes in law worked by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333).

A jury convicted defendant and appellant Dixon Zambrana-Aleman of child molestation and multiple related offenses. He contends the court violated Kelly-Frye when it admitted expert testimony about the Child Sexual Abuse Accommodation Syndrome (CSAAS), and that the court erred when it allowed the expert to “vouch” for the victim’s credibility and denied his motion for new trial based on juror misconduct. Appellant’s arguments are meritless, so we affirm the judgment.

In 2015, appellant Jovan Strong was sentenced to 25 years to life in prison after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)) for his involvement in the robbery of a convenience store during which his cousin, Diovanni Whitmire, shot and killed the store clerk.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which amended the felony murder rule “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life” (Stats. 2018, ch. 1015, § 1, subd. (f)), and added section 1170.95 to provide a procedure for vacating prior murder convictions that could not be sustained under the new definition of felony murder.
In 2019, appellant filed a petition under the new law to have his murder conviction vacated.

Defendant Lisa Chantel Ybarra pleaded no contest to manufacturing a controlled substance. (Health & Saf. Code, § 11379.6, subd. (a).) The trial court sentenced Ybarra to three years in county jail and suspended execution of two years six months in jail, during which time she would be under mandatory supervision. The court also imposed an “acceleration clause” specifying that if Ybarra was released from actual jail custody before completing the imposed custody period, the period of mandatory supervision would begin on the date of her actual release.
After 91 actual days in custody, Ybarra was released from jail, but she failed to report to the probation department as required under the terms of her mandatory supervision. The probation department filed a notice of violation, and Ybarra admitted the violation, whereupon the trial court revoked her mandatory supervision.

Plaintiff and appellant Hieu M. Nguyen appeals an order of dismissal with prejudice following his failure to appear at a mandatory settlement conference and trial in this action alleging fraud and related claims stemming from an apparent business dispute. Nguyen has not provided an adequate record or opening brief to enable meaningful appellate review. Accordingly, we affirm.
It is well settled that a judgment is presumed correct and “ ‘error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) For that reason, an appellant bears the burden of providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 (Maria P.).) Where the appellant fails to do so, a reviewing court is required to resolve the matter against the appellant. (Id. at pp. 1295 1296.) We are not permitted to speculate as to the contents of missing portions of the record or issues appellant may have raised below.

The present appeal is one of two before us relating to an ongoing parenting conflict between the parents of a 12-year-old boy. Said litigation is the subject of a companion appeal, Douglas S. v. Jennifer E., case No. G058880 (the companion case), for which we have written a separate opinion. This appeal is significantly narrower in scope than that one. Here we must determine whether the family law court erred in denying appellant’s request for a contribution by the respondent toward her attorney fees and costs so she can mount the companion case’s appeal. She also seeks fees and costs to help her bring claims under the Domestic Violence Prevention Act (DVPA). We conclude the trial court was within its discretion to deny appellant’s request for attorney fees for the appeal, but we reverse and remand its ruling on the DVPA issue for further consideration.

The parties in this matter are parents to an adolescent son. Sadly, for most of his young life, they have been locked in conflict over paternity, custody, and child support for him. The record in this case is replete with evidence of not only antagonism between the parties, but outright acrimony, marring their relationship and corroding their ability to communicate, even for their own son’s benefit. Indeed, it seems the child has been used by both parents as a means for inflicting pain or grief on each other.
The latest front in the parties’ battle opened up in December 2015, when both sides sought modifications of custody and support orders in the judgment rendered two years prior. The dispute managed to persist over four years; the debate over whose fault that was will likely continue long into the future. Suffice it to say, when the smoke cleared, the parents were ordered to share joint legal custody and the mother was awarded a modification to her monthly child support.