CA Unpub Decisions

Robert Deane appeals from the civil harassment restraining order issued against him, protecting petitioner Bernie Hendrix. Deane argues that the parties were in a labor dispute and that the trial court erred when it did not apply the Labor Code’s heightened evidentiary standards. He also asserts the court erred in (1) failing to grant his request for a continuance, and (2) not giving him notice of hearings. Finally, he argues the restraining order was not supported by evidence of a threat of future harm to Hendrix. We affirm.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michelle Williams Court, Judge. Reversed and remanded with directions.
LTL Attorneys, James M. Lee, Joedat H. Tuffaha, Prashanth Chennakesavan for Defendant and Appellant.
Rogari Law Firm, Ralph Rogari; Law Offices of Mary Lee, Mary Lee for Plaintiff and Appellant.
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This case involves two competing claimants’ efforts to retrieve stolen money.
DAS, a Korean corporation, claimed Kyung Joon Kim stole $14 million from DAS In 2000.
In 2001, Kim stole more than $30 million from Optional Capital, Inc., a corporation he controlled, spending heavily on luxury items and transferring money to several accounts.
One of those transfers included $12.6 million that Kim deposited in a Swiss bank account.
DAS sued Kim.
Optional sued Kim.
In 2010, DAS settled its lawsuit against Kim for $12.6 million and in 2011, with Kim’s permission, withdrew that amount from Kim’s Swiss account.
In 2013, Optional obtaine

The trial court denied defendant and appellant Jonathan Daveilo Duke’s petition under Penal Code section 1170.95 for resentencing on his murder conviction. We affirmed the decision, but after the Legislature enacted Senate Bill No. 775 (2021−2022 Reg. Sess.) (Senate Bill No. 775), which changed the rules of evidence and the standard of proof for determining resentencing petitions, the Supreme Court ordered us to vacate our opinion and reconsider the case in light of the new law. We now reverse the trial court’s decision and remand for a new hearing.

Between 2017 and 2018, appellant Ismael Sesam Osorio, who was over 30 years old, had a sexual relationship with a minor female.
On March 4, 2020, the San Mateo District Attorney filed an information charging Osorio with seven felony offenses: unlawful sexual intercourse with a minor more than three years younger than him (Pen. Code, § 261.5, subd. (c), counts 1, 4, 5, and 6); oral copulation of a person under 18 (Pen. Code, § 287, subd. (b)(1), count 2); forcible oral copulation of a minor victim over 14 (Pen. Code, § 287, subd. (c)(2)(C), count 3); and possession of child or youth pornography (Pen. Code, § 311.11, subd. (a), count 7).

The San Francisco Human Services Agency (agency) filed a dependency petition on behalf of nine-year-old Natalie R. after receiving reports that she had been sexually abused by her stepfather. Natalie was detained and placed with her father. Following mediation and a contested dismissal hearing, the juvenile court dismissed the case and granted father sole physical and legal custody of Natalie. Mother was granted supervised visitation and access to Natalie’s education and health records. On appeal, Audra D. (mother) challenges the award of sole legal custody to father.

In 2018, the Legislature amended Penal Code section 1170.91 to authorize defendants sentenced for a felony conviction before January 1, 2015 to petition for a resentencing hearing at which the court could consider mitigating factors resulting from the defendant’s military service.
Robert Eugene Smith appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.91. Smith’s court-appointed counsel filed a brief which raised no legal issues and asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel represented that he advised Smith of his right to file a supplemental brief within 30 days and to request that the court relieve his counsel. Smith did not file a supplemental brief. We affirm.

An Uber driver who was transporting four passengers parked his car along the street in front of a San Francisco hotel rather than in the hotel’s driveway. Moments later, one of his rear passengers attempted to exit on the driver’s side of the vehicle and opened the car door just as a garbage truck drove past. Plaintiff William J. Mason, who was standing on the back of the garbage truck, was knocked to the ground, and suffered serious physical injuries.
Mason and his wife sued defendants Francisco Ballesteros Madamba and Uber Technologies, Inc. (Uber) for negligence. The trial court granted defendants’ motion for summary judgment, concluding that Madamba did not owe plaintiffs a legal duty as a matter of law to control the conduct of Madamba’s passenger or to warn her the garbage truck was approaching. The trial court also determined that defendants did not owe plaintiffs a heightened duty of care as a common carrier because any such duty was owed only to passengers, not third

Appellant Donisha Allen filed a petition for resentencing under Penal Code 1170.95, which was denied on the grounds that she was not entitled to relief because she was convicted of attempted murder rather than murder. The Legislature subsequently clarified that persons convicted of attempted murder are entitled to seek resentencing under the statute. We reverse the trial court’s order finding that appellant had failed to make a prima facie case for relief under section 1170.95 and remand the matter to the trial court for an evidentiary hearing.

In 2009, a jury convicted Andrew Valdivia of two counts of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury found true firearms enhancements under sections 12022.5, subdivision (a) and 12022.53, subdivisions (b), (c), (d) and (e)(1) and found that Valdivia personally inflicted great bodily injury (§ 12022.7, subd. (a)). In addition, the jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Valdivia was sentenced to a total term of 85 years to life in prison.
Valdivia appealed, and this court affirmed the judgment in an unpublished opinion. (People v. Valdivia et al. (Aug. 12, 2011, D057386) [nonpub. opn.].)
In 2021, Valdivia filed a petition for resentencing under section 1170.95. The trial court summarily denied the petition without appointing counsel, receiving briefing, or conducting a hearing.
Valdivia filed a timely notice of appeal.

Michael Levy (Michael) appeals from the March 18, 2020 judgment on reserved issues in his dissolution of marriage case against his now former wife Allison Levy Lin (Allison).
Michael raises seven issues on appeal. We address only three of his seven contentions, as he did not provide sufficient argument, legal authority, and an adequate record on appeal to support his remaining contentions.
We affirm the judgment on reserved issues.

In 2015, defendant Juan Carlos Fonseca was convicted of multiple offenses including kidnapping to commit extortion (Pen. Code, § 209, subd. (a)). Fonseca appealed his convictions, and we reversed and remanded the matter for resentencing. On remand, the trial court resentenced Fonseca to a term in prison that included a sentence of life without the possibility of parole (LWOP). Fonseca appealed again. In this second appeal, Fonseca argues that his LWOP sentence is unconstitutional, and he is entitled to a youth offender parole hearing under section 3051. He claims that section 3051 violates his right to equal protection under the law because it categorically excludes him from the right to have a youth offender parole hearing. He further argues that insufficient evidence supports the trial court’s finding that he had the ability to pay the $10,000 restitution fine imposed under former section 1202.4 and that the trial court erred in calculating the court security fee (§ 1465.8) and c

Appellant Jackson Arion Dapont pleaded no contest in two criminal cases to burglary (Pen. Code, § 459) and unlawful access card activity (Pen. Code, § 484i, subd. (c)) and was sentenced to a stipulated aggregate term of six years in prison. Upon notification by the California Department of Corrections and Rehabilitation (CDCR) of several errors in the imposition of the stipulated sentence, the trial court resentenced Dapont—in his absence and without his consent—to a differently structured six-year term, during which he would be definitively ineligible for early parole consideration under Proposition 57, the Public Safety and Rehabilitation Act of 2016. Because we are unable to conclude beyond a reasonable doubt that Dapont was not prejudiced by the denial of his constitutional right to be present, we reverse and remand the matter for a new resentencing hearing.

Defendant Scott Michael Conway, Jr., appeals from a judgment entered after a jury found him guilty of attempted murder (Pen. Code, §§ 664, 187; count 4), two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 2, 5), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). The jury also found true gang enhancement allegations under section 186.22, subdivision (b)(1) on the attempted murder and assault counts.
Defendant originally contended: (1) the jury instructions on murder and attempted murder misled the jury on the necessary mental state for attempted murder; (2) the prosecutor committed misconduct when he misstated the elements of attempted murder during argument; (3) the trial court erred when it removed a juror without good cause; (4) the trial court erred when it instructed the jury that it could consider the certainty of the eyewitnesses who identified him; (5) the trial court erred when it denied

Defendant was conducting a one-man, belligerent political protest at an intersection. The victim (who we refer to as John) stopped his car at a red light at the intersection and was confronted by defendant. After some back and forth, the defendant retreated to the sidewalk and retrieved a club-like improvised weapon. For reasons that are unclear in the record, John, who is much larger than defendant, got out of his vehicle and approached defendant on the sidewalk. Defendant swung the weapon at John. Grainy surveillance footage shows John attempting to block the swing and then stepping into defendant as if to punch him. The two got tangled up and fell to the ground with John on the bottom. John was rendered unconscious, and defendant began raining punches down on John’s face. Fortunately, a police officer happened to be nearby and quickly broke up the altercation. John had a large bruise on the back of his head, a broken nose, and cuts on his face.
Defendant was charged with three cou