CA Unpub Decisions

Defendant Brian Jerome Patton was charged by an information filed on April 1, 2010, with the crimes of possession of a firearm by a person previously convicted of a felony and possession of ammunition by a person previously convicted of a felony, in violation of Penal Code sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1). The information also alleged as to both of these counts that defendant previously suffered a conviction for a serious or violent felony and that he served a term in prison and did not remain free of custody for a period of five years thereafter, pursuant to Penal Code sections 1170.12, subdivision (a) through (d), 667, subdivision (b) through (i), and 667.5, subdivision (b).
Defendant was convicted of the charged offenses, and sentenced to a total of five years in state prison. He timely appealed his conviction.

Plaintiff and appellant Ulta Salon, Cosmetics & Fragrance, Inc. (Ulta) appeals an order of dismissal following the sustaining without leave to amend of a demurrer interposed by defendant and respondent Travelers Property Casualty Company of America (Travelers) to Ulta's first amended complaint.[1]
The essential issue presented in this insurance coverage action is whether the trial court properly held Travelers had no duty to defend or indemnity Ulta, its insured, in an underlying action against Ulta alleging violations of Proposition 65, the California Safe Drinking Water and Toxic Enforcement Act of 1986. (Health & Saf. Code, § 25249.5 et seq.)[2] [3]
We conclude Travelers did not owe Ulta a defense because neither the pleadings nor the extrinsic evidence in the underlying action revealed a possibility the Proposition 65 claim being asserted against Ulta might be covered by the Travelers policy. Therefore, the order of dismissal is affirmed.

Plaintiffs and appellants Michael D. Scott (Scott) and Earle W. Robitaille (Robitaille) (collectively, plaintiffs), individually and on behalf of all others similarly situated, appeal an order denying their motion for class certification of their action against defendants and respondents California Public Employees' Retirement System (CalPERS), Graphic Center (Graphic), and Direct Mail Services, Inc. dba American Mail Service (Direct) (collectively, defendants).[1]
In August 2007, CalPERS sent an election brochure to approximately 391,000 retired members. All or part of the retirees' social security numbers were printed on the address labels, in an unspaced and unhyphenated form, above their names. The brochures were created by Graphic and were mailed by Direct. Plaintiffs filed suit against CalPERS, Graphic and Direct and sought to certify a class of all CalPERS members whose privacy rights were violated by this disclosure of their social security numbers.

Plaintiffs and appellants Michael D. Scott (Scott) and Earle W. Robitaille (Robitaille) (collectively, plaintiffs), individually and on behalf of all others similarly situated, appeal an order denying their motion for class certification of their action against defendants and respondents California Public Employees' Retirement System (CalPERS), Graphic Center (Graphic), and Direct Mail Services, Inc. dba American Mail Service (Direct) (collectively, defendants).[1]
In August 2007, CalPERS sent an election brochure to approximately 391,000 retired members. All or part of the retirees' social security numbers were printed on the address labels, in an unspaced and unhyphenated form, above their names. The brochures were created by Graphic and were mailed by Direct. Plaintiffs filed suit against CalPERS, Graphic and Direct and sought to certify a class of all CalPERS members whose privacy rights were violated by this disclosure of their social security numbers.

In 2009, the Legislature amended Penal Code[1] section 4019 to increase the presentence custody credits available to convicted offenders, but the amendment denied the increased credits to offenders who were required to register as a sex offender or had a prior serious felony conviction. Defendant Alfredo Ortiz was subject to both disqualifications.
The prosecution alleged defendant's prior convictions in the information, but it did not submit them to the jury or otherwise prove them formally. Nonetheless, on stipulation of defendant's attorney, the trial court denied him the increased custody credits available under the amendment to section 4019. Defendant contends the prosecution was required to prove the prior convictions because the denial of additional custody credits constituted an increase in his period of incarceration. Finding no legal basis for his contention, we affirm.

Narsi Samii and Dounia R. Samii (the Samiis) appeal from a judgment (1) restoring possession of a restaurant space they formerly leased at a shopping mall to the mall owner, and (2) dismissing the Samiis' consolidated action for declaratory relief against the mall. Respondents Codding Enterprises, LP, and Coddingtown Mall, LLC (Coddingtown or the Mall), and Simon Property Group, LP (Simon) operate the mall.
The Samiis contend the trial court erred by not ruling (1) the conditions precedent to terminating their lease were never satisfied, (2) the mall owner was estopped by its own conduct from enforcing the provision of the lease under which their tenancy was purportedly terminated, and (3) the mall owner's notice of termination was fatally defective. We find no error in the trial court's determinations, and affirm the judgment.

A modification decision.

A modification decision.

Appellant, Mark Anthony Flanagan, stands convicted of possession of a controlled substance for purposes of sale (Health & Saf. Code, § 11378) with enhancements for each of two prior convictions of drug-related offenses (Health & Saf. Code, § 11370.2, subd. (b)). In January 2007, the court imposed a prison term of eight years, consisting of the two-year midterm on the substantive offense and three years on each of the two prior-drug-offense-conviction enhancements; suspended execution of sentence for a period of five years; and placed appellant on five years' probation.
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Appellant/defendant Grant Sutton pleaded guilty to transportation of methamphetamine (Health & Saf. Code,[1] § 11379, subd. (a)) and admitted one prior narcotics-related conviction (§ 11370.2, subd. (c)). He was sentenced to five years in prison.
On appeal, defendant contends the superior court should have granted his motion to suppress the methamphetamine that was found during a warrantless search of his vehicle, based on Arizona v. Gant (2009) 556 U.S. __ [129 S.Ct. 1710] (Gant). Gant was decided a few days after the search in this case, and held a vehicle could be searched incident to the occupant's arrest only if the arrestee was unsecured and within reaching distance of the passenger compartment at the time of the search. (Gant, supra, 129 S.Ct. at pp. 1714, 1719.)
The People assert that even if the search in this case would have been illegal under Gant, the good faith exception to the exclusionary rule applies because the deputy searched defendant's truck in accordance with the then-existing authority of New York v. Belton (1981) 453 U.S. 454 (Belton), which permitted a vehicle search incident to an arrest even if the arrestee was secured and not capable of reaching into the vehicle's interior. The People further argue the search itself was valid based on the automobile exception to the warrant requirement, as set forth in United States v. Ross (1982) 456 U.S. 798 (Ross). We will affirm.

This is an appeal from an order denying appellant's application for issuance of an order to show cause in a proceeding for writ of mandate. We vacate the order of the trial court.

Defendant Laura Catheline Hernandez persuaded the victim to drive her and her boyfriend to get cigarettes. Her boyfriend then put a knife to the victim's throat and started telling him where to drive. The victim escaped only by grabbing the knife -- thus sustaining a severe slash wound to his hand -- and jumping out of the car.
Defendant was found guilty of kidnapping for the purpose of carjacking (Pen. Code, § 209.5, subd. (a)), carjacking (Pen. Code, § 215, subd. (a)), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). She was sentenced to a total of 10 years to life in prison.
Defendant contends that she could not be convicted of both carjacking and kidnapping for the purpose of carjacking, because the former is a lesser included offense of the latter. The People concede the error. Hence, we will vacate the carjacking conviction.
Defendant also contends that sentencing her for both kidnapping for the purpose of carjacking and assault with a deadly weapon violated Penal Code section 654 (section 654). We agree. Hence, we will stay the sentence for assault with a deadly weapon. Otherwise, we will affirm.

In December 2009 Robert Jorgensen entered a negotiated guilty plea to receiving stolen property (Pen. Code, § 496, subd. (a)). In February 2010 the court suspended imposition of sentence and placed him on three years' probation. In November the court revoked probation and sentenced Jorgensen to prison for the two-year middle term. Jorgensen appeals. We affirm.

A modification decision.