CA Unpub Decisions

Enrique Cruz appeals from the judgment entered following a jury trial in which he was convicted of robbery (Pen. Code, 211,[1]count 1), assault with a firearm ( 245, subd. (a)(2), count 2), shooting at an occupied motor vehicle ( 246, count 3), carrying a concealed firearm while an occupant of a vehicle ( 12025, subd. (a)(3), count 4), attempted murder ( 664/187, count 5), and carrying a loaded firearm while an active participant in a criminal street gang ( 12031, subd. (a)(1), (2)(C), count 6). In addition, gang enhancements ( 186.22, subd. (b)(1)(A), (1)(C)) were found on counts 1 through 5, firearm enhancements under section 12022.5, subdivision (a) were found on counts 2 and 3, and firearm enhancements under section 12022.53, subdivision (c) were found on counts 3 and 5. Defendant contends that the trial court erred in permitting the filing of amendments to the information to add counts 5 and 6; that his convictions on counts 1, 4, 5 and 6, as well as the street gang findings, were not supported by substantial evidence; that the trial court committed instructional error; that trial counsel rendered ineffective assistance in various respects; and that errors were made in sentencing.

More than 40 years ago, our state Supreme Court was called upon in Insurance Co. of North America v. Electronic Purification Co. (1967) 67 Cal.2d 679 (Electronic Purification) to interpret a commercial general liability insurance (CGL) policy with a products hazard exclusion for bodily injury damages which included both products and completed operations language. Reading the language and formatting of the policy which had been placed before it in Electronic Purification, the Supreme Court ruled that the products and completed operations language in the policy exclusion were related, compelling the interpretation that the exclusion applied only to completed operations involving a product, and not to an insureds business activities that involved only services. In short, the Supreme Court concluded that the policy did not exclude coverage for a claim arising from the insureds rendition of a service which was only remotely related to a product. (Id. at p. 691.)

Appellant John Alcantara was convicted, following a jury trial, of the 1983 first degree murder of Robert Bennett in violation of Penal Code section 187, subdivision (a). The trial court sentenced appellant to 25 years to life in state prison. The court ordered appellant to pay a parole revocation fine of $10,000 pursuant to section 1202.45 and a $10,000 restitution fine pursuant to section 1202.4
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial and by admitting evidence of his potentially intimidating conduct in 1983, blood evidence, photographs of the victim with his family, and the preliminary hearing testimony of witness Al Hatten. Appellant also contends that the parole revocation and restitution fines imposed in this case are improper. Court order the parole revocation fine stricken and the matter remanded for a restitution hearing. Court affirm the judgment of conviction in all other respects.

On appeal, the Shaffers contend: (1) the trial court erred in entering judgment on the jurys ambiguous, incomplete special verdict finding damages in the amount of $1413.12 + Permit Fees; (2) the trial court abused its discretion in awarding costs, including attorneys fees, to the Sassoons because they refused to mediate when requested to do so under the residential purchase agreement; (3) the trial court abused its discretion in awarding attorneys fees under Code of Civil Procedure section 998[2]because the Shaffers obtained a more favorable recovery than the amount the Sassoons had offered to settle; and (4) the Sassoons section 998 offer was not susceptible to valuation because it reserved the Sassoons right to pursue their cross-claims against the Shaffers. We conclude the Shaffers forfeited their claim regarding the special verdict and affirm the judgment on this issue. Court conclude the trial court did not abuse its discretion in finding the Shaffers had not established that the Sassoons ever received a request to mediate and affirm on this issue as well. As the Shaffers obtained a more favorable recovery than was offered in the section 998 offer, we reverse the trial courts award of attorneys fees. Finally, our conclusion that the Shaffers obtained the more favorable outcome obviates the need for us to reach the issue of the offers purported invalidity. On remand, the trial court shall determine the Shaffers costs on proper application and add this sum to the final judgment.

The Board of Parole Hearings (Board) granted respondent Carl Henderson parole. Governor Arnold Schwarzenegger, however, reversed the Boards decision. Henderson then filed a petition for a writ of habeas corpus, which was granted by the superior court. Appellant D.K. Sisto (Warden Sisto or Sisto), the Warden of California State Prison, Solano, where Henderson is incarcerated, appeals the order granting Hendersons petition. Court affirm the superior courts order and reinstate the Boards order granting Henderson parole.

Appellant Anthony Chandler (Chandler) appeals his conviction for one count of possession of cocaine base for sale (Health and Saf. Code, 11351.5), one count of making criminal threats (Pen. Code, 422), and one count of resisting an executive officer (Pen. Code, 69). Chandler contends that the trial court abused its discretion and denied him due process when it admitted evidence of a subsequent assault that Chandler committed against a deputy sheriff while in custody in the county jail. We conclude that the admission of the challenged evidence was neither an abuse of discretion nor a violation of the constitutional right to due process. Accordingly, Court affirm.

Deville Simmons, convicted of attempted murder (Pen. Code,[1] 187/664) and shooting at an occupied vehicle ( 246), appeals his conviction and sentence on the grounds that: (1) the trial court erred in its instructions on provocation and should have given other instructions; (2) the prosecutor committed misconduct; (3) his trial counsel rendered ineffective assistance; (4) the sentence on count 2, for shooting at an occupied vehicle, should have been stayed; and (5) his sentence on count 2 was in error. Court modify the sentence to stay an enhancement on count 2 but otherwise affirm the judgment.

In June 2008, a jury found appellant Ricky Parnell (Parnell) guilty of four counts of assault with a deadly weapon (Pen. Code,[1] 245, subd. (a)(1); counts 14), one count of corporal injury to a spouse or coinhabitant ( 273.5, subd. (a); count 5), one count of false imprisonment by violence ( 236; count 6), and one count of torture ( 206; count 7), all against the same victim, Eleather Shidie (Shidie). It was further alleged as to all seven counts that: (1) Parnell personally inflicted great bodily injury ( 12022.7, subd. (e)); (2) Parnell had one prior prison term ( 667.5, subd. (b)); (3) Parnell had one prior serious felony conviction ( 667, subd. (a)(1)); and (4) Parnell had one prior strike conviction ( 1170.12, subds. (a)(d), and 667, subds. (b)(i)).
In this appeal, Parnell contends: (1) the trial court committed prejudicial error in admitting evidence of a 1989 incident of domestic violence; and (2) the trial court erred in ordering the sentences on counts 1 through 6 to run consecutively to the term imposed on count seven rather than staying the first six sentences pursuant to section 654. Respondent maintains the abstract of judgment must be corrected to properly reflect the sentence imposed on count five. As there was no substantial evidence that Parnell entertained multiple independent criminal objectives on each of counts 1 through 6, we conclude the sentences should have been stayed under section 654. Court order the sentences on counts 1 through 6 stayed and the abstract of judgment corrected and otherwise affirm the judgment.

Nicole Swain appeals the judgment in her action for specific performance of an option sale contract for a condominium in Marina del Rey. The court entered respondent Lawrence K. Wrights default, but at the prove up hearing refused to order specific performance of the contract and awarded damages solely for Swains remodeling costs, prejudgment interest and attorneys fees. Court reverse and remand for the trial court to determine Swains entitlement to specific performance and additional damages as appropriate.

Appellant Fabricante purchased residential property in the City of Oxnard's business district. The residential use predated a change in zoning, thus the city allowed the residential use to continue, subject to the terms of the city's nonconforming use ordinance. Appellant applied for permits to repair the property. The city did not act on the permits and Fabricante filed a petition for writ of mandate and a complaint for declaratory relief and inverse condemnation. The city issued a letter denying the permits and informing Fabricante that the property no longer had nonconforming use status. Fabricante subsequently lost the property through foreclosure. It dismissed its writ petition, but proceeded against the city on the remaining causes of action. The city moved for summary judgment and demurred to a recently added cause of action under 42 United States Code section 1983 (hereafter 42 U.S.C. 1983). The trial court granted the city's motion for summary judgment and sustained its demurrer without leave to amend. Court affirm.

Anne S., mother of Luis S. (now 13 years old) and Kerrie S. (now 10 years old) appeals from the order of the juvenile court that summarily denied her Welfare and Institutions Code section 388[1] petition, filed on December 29, 2008, asking the court to return the children to her custody or increase her visitation. She contends that her claim that the children had disclosed new allegations of physical and sexual abuse constituted prima facie evidence entitling her to a hearing on her petition. Court disagree and affirm the courts order.

Appellants Young Lee and Pro Pac Distributing Company, Inc., doing business as Pro Club, filed an action against respondents Seung Tchul[1]Ahn, Mak T. Pak and PRO 5 APPAREL, Inc., claiming that respondents were passing off T-shirts manufactured by them as T-shirts manufactured by appellants. We will refer to this action as the instant case or action, to distinguish it from other actions that are germane to this appeal. Respondents demurrer to the first amended complaint was sustained without leave to amend on the ground that the instant action is barred by res judicata. Court agree and affirm the judgment.

Gregory Frank Martinez appeals an order revoking his probation following his guilty plea to possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) and his admission that he had served two prior prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced him to three years four months in state prison. He contends the court violated his due process rights by revoking his probation without a hearing. Court affirm.

Shawn Hill appeals a judgment committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO) (Pen. Code, 2962) following his conviction of assault with a deadly weapon ( 245, subd. (a)(1)). We conclude that substantial evidence supports the finding that Hill's severe mental disorder was a cause or an aggravating factor in the commission of his commitment offense. ( 2962, subd. (d)(1).) Court affirm.