CA Unpub Decisions

Appellants Phillip Achilles, Theos Fedro Holdings LLC (“Theos Fedro Holdings”), and American Airporter Shuttle (“AAS”) (collectively the “Achilles Defendants”) contend the trial court erroneously entered judgment against them in favor of respondent Labor Commissioner of the State of California (“Labor Commissioner”) after the Labor Commissioner successfully moved the court to enforce the settlement agreement reached by the parties. The Achilles Defendants argue the trial court erred because the parties’ underlying settlement agreement was improperly signed and the motion to enforce the settlement agreement was based on inadmissible evidence. They also contend the provision in the judgment ordering them to pay the settlement amount in full, rather than in installments, was improper absent an acceleration clause in the agreement. We disagree on all points, and therefore affirm.

Margot B. appeals from the trial court’s denial of her request for attorney fees under Family Code section 2030. She contends the trial court had a mandatory duty to award her fees because it found both a disparity in the parties’ financial resources and the ability of her former husband, Ian W., to pay her fees. She argues in the alternative that the trial court abused its discretion by finding Ian W. was not able to pay her fees. We disagree with both arguments and affirm.

On July 8, 2019, the trial court issued an order granting plaintiff Bertha Dodson’s motion for attorneys’ fees and costs and denying defendant Security Officers & Investigations, LLC’s (SOI) motion for attorneys’ fees and costs (order). On July 11, 2019, plaintiff filed and served a notice of entry of the order. On September 3, 2019, SOI served Dodson with a notice of appeal from the order, but the notice of appeal was not filed in the superior court until September 13, 2019, 64 days after the notice of entry of the order was served. We lack jurisdiction over this appeal because the notice of appeal was not timely filed. Accordingly, we must dismiss the appeal.
The time limits for filing a notice of appeal are jurisdictional, and an untimely appeal must be dismissed. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666–667.)

Monica R., the mother of minor Nadia L., appeals from an order of the juvenile court terminating her parental rights under Welfare and Institutions Code section 366.26. Her sole issue on appeal is that she provided sufficient evidence to forestall termination under the parental-benefit exception of section 366.26, subdivision (c)(1)(B)(i). The court found that she had not met her burden of proof as to the first two elements of the exception – regular visitation and continuing benefit – and so did not make findings relating to the third element – detriment to the child.
We affirm the order. Monica’s evidence supporting the exception was not uncontradicted and unimpeached, as it must be when an appellant disputes a trial court’s finding that a party did not carry an assigned burden of proof. Of the three elements of the parental benefit exception, Monica failed to establish two: regular visitation and continuing benefit to the children.

Plaintiff appeals the denial of her request for a restraining order against defendant, her ex-husband, pursuant to the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200, et seq.) The trial court stated it could consider only matters presented at the hearing and, based on that evidence, found plaintiff did not meet her burden for the issuance of a restraining order.
The DVPA addresses the scope of the evidence a trial court must consider when evaluating a request for restraining order. The trial “court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” (§ 6301, subd. (c).) Furthermore, the court may issue a restraining order “based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a).)

Defendant Eddie Serna Cordero stands convicted of possession of a firearm and ammunition as a felon, misdemeanor obstructing an officer, and misdemeanor reckless driving. On appeal, he contends (1) the evidence was insufficient to support the convictions because his identity as the perpetrator of the offenses was not credibly established, and (2) defendant’s trial counsel was ineffective for failing to emphasize the best evidence tending to show that defendant was not the perpetrator. The People disagree on both accounts.
We ordered the parties to submit supplemental briefing on the question of whether any remaining balance on the probation report fees imposed pursuant to former Penal Code section 1203.1b should be vacated because they are uncollectable and unenforceable pursuant to Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1896). The parties agree that we should order any remaining balance on the probation report fees vacated.

Defendant Antonio Rosa, Jr., was convicted by jury trial of first degree murder, attempted robbery, and robbery. Defendant was prosecuted on an aider and abettor theory of felony murder. Defendant filed a petition for resentencing, pursuant to Penal Code section 1170.95, based upon the changes to the felony-murder rule and the natural and probable consequences doctrine of aider and abettor liability effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). The trial court summarily denied defendant’s petition. On appeal, defendant contends the trial court’s summary denial was error and the People agree. We reverse the order and remand the matter for further proceedings pursuant to section 1170.95.

Appellant Josiah David Silveira was convicted following a jury trial of seven counts of identity theft (Pen. Code, § 530.5, subd. (a); counts I, VII, XI, XIII, XVI, XVIII & XX ); four counts of forgery related to identity theft (§ 470, subd. (d); counts II, VIII, XII & XIV); four counts of forgery relating to a check not exceeding $950 in value (§ 470, subd. (a); counts XVII, XIX, XXI & XXII); two counts of conspiracy to commit shoplifting, forgery, and/or identity theft (§ 182, subd. (a)(1); counts X & XXIII); and four counts of misdemeanor shoplifting (§ 459.5, subd. (a); counts III, VI, IX & XV). He admitted to suffering two strike priors (§ 667, subds. (b)-(j)). The court sentenced him to an aggregate prison term of 12 years.
Appellant appeals from the judgment, contending the trial court violated his federal and state due process rights and section 654 by failing to stay sentence on count XI because it was one of the objects of the conspiracy charged in count X.

The Kern County District Attorney charged defendant with (among other conduct) attempted murder (Pen. Code, §§ 664, 187, subd. (a), 189), assault with a semiautomatic firearm (§ 245, subd. (b)) and two counts of criminal threats (§ 422). (Undesignated statutory references are to the Penal Code.)
Prior to trial, defendant requested pretrial mental health diversion pursuant to section 1001.36. Defendant cited his history of opioid abuse and resulting psychiatric disorders as grounds for this relief. The trial court determined defendant was not eligible under the statute and denied his motion.
A jury convicted defendant of the lesser included offense of attempted voluntary manslaughter, assault with a semiautomatic firearm, false imprisonment, criminal threats, and felony child abuse. The trial court sentenced defendant to a determinate term of 32 years 8 months.
Defendant raises several issues on appeal.

In this qui tam action, relator Gilbert Ellinger brought suit on behalf of the People of the State of California against Zurich American Insurance Company (Zurich), ESIS, Inc. (ESIS), and Stephanie Ann Magill under Insurance Code section 1871.7, a provision of the Insurance Frauds Prevention Act (IFPA). (Undesignated statutory references are to the Insurance Code.) The trial court sustained defendants’ demurrers without leave to amend. Ellinger appeals from the judgment. We affirm.

In an open plea to the court, defendant and appellant Joseph Foster Ramey pled guilty to the sheet as charged to numerous felony offenses. He also admitted that he had one prison prior (Pen. Code, § 667.5, subd. (b)) and that he committed most of the offenses while out on bail (§ 12022.1). A trial court denied probation and sentenced defendant to a total term of 17 years four months in state prison. It also ordered him to pay various fees and fines.
Defendant filed a timely notice of appeal, challenging the sentence or other matters occurring after the plea. We affirm.

Defendant and appellant, Louis Robert Martinez, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the court summarily denied. On appeal, defendant contended the court erred in summarily denying his petition without affording him the opportunity “to brief the issues, or allow[] [defendant] to develop the record and to marshal evidence bearing upon whether an Order to Show Cause . . . should issue.” We affirmed.
On December 22, 2021, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On January 3, 2022, we vacated our opinion and provided that any party could file a supplemental brief within 15 days. Both parties have filed briefs maintaining the matter must be reversed and remanded. We reverse and remand the matter for reconsideration.

Defendant and appellant, Ronnie Cruz Reaza, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the superior court summarily denied. On appeal, defendant contended the court erred in summarily denying his petition without affording him the opportunity to file a reply to the People’s opposition. We affirmed.
On December 22, 2021, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On December 29, 2021, we vacated our opinion and provided that any party could file a supplemental brief within 15 days.
Defendant continues to maintain that the court erred in denying his petition as to his murder conviction. As to his attempted murder conviction, defendant contends the matter must be reversed due to the amendments to section 1170.95 rendered by Senate Bill No. 775.

In 2012, defendant and appellant Tyrell James Rainey was convicted of first degree attempted murder (Pen. Code, §§ 664/187, subd. (a)) as an aider and abettor based on the natural and probable consequences theory. About seven years later, in 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition finding section 1170.95 did not apply to attempted murder, which was the correct result at the time. In a prior nonpublished opinion, People v. Rainey (Apr. 28, 2020, E072758), we affirmed the trial court’s order. The Legislature, however, since has passed and the Governor has signed Senate Bill No. 775 (2020-2021 Reg. Sess.), which makes clear that persons convicted of attempted murder could be eligible for resentencing relief. (Stats. 2021, ch. 551, § 1.)
Following the issuance of our prior opinion upholding the trial court’s order, defendant filed a petition for review in the California Supreme Court (S262396).