CA Unpub Decisions

Horacio Naya, also known as Jose Carlos and Samuel Chegue, appeals from the judgment entered upon his conviction by jury of one count of selling cocaine base (Health & Saf. Code, 11352, subd. (a)). The trial court found to be true the allegations that appellant had suffered a prior conviction of a narcotics-related offense within the meaning of Health and Safety Code, section 11370.2, subdivision (a) and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] It sentenced appellant to the upper term of five years for selling cocaine, plus three years for the prior drug-related offense and one additional year for each of the three prior prison terms. Appellant contends that the trial court erred (1) in denying his Pitchess[2]motion, (2) in instructing the jury in accordance with CALJIC No. 2.06, and (3) in ordering appellant to pay attorneys fees in the absence of evidence of his ability to pay, and (4) further contends that imposition of the upper-term sentence based upon facts found by the trial court violated his right to a jury trial of those facts, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Appellant also requests us to review in camera proceedings to determine whether the trial court properly sustained police witnesses assertion of the official information privilege contained in Evidence Code section 1040.
By order dated August 6, 2007, Court authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On August 15, 2007, appellant filed his supplemental brief, and, on October 2, 2007, respondent filed its responding brief. Having reconsidered the matter in light of the above-mentioned recent authorities, Court now reverse with directions.

Charles Jeffrey Bowden appeals from the judgment entered upon his convictions by jury verdict of first degree burglary (Pen. Code 459, count 1)[1]and receiving stolen property ( 496, subd. (a), count 2). Defendant admitted four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of 10 years. Defendant contends that (1) the trial court violated his right to counsel under the United States and California Constitutions by failing to consider his motion to relinquish self-representation and for reappointment of counsel; (2) the trial court violated his right to due process by constructively terminating previously appointed standby counsel; (3) the trial court erred in not staying execution of sentence on the receiving stolen property conviction pursuant to section 654; and (4) imposition of the upper term sentence on the receipt of stolen property count violated his right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court modify the judgment and otherwise affirm.

Plaintiff Michele Noel Pugliese (Michele) filed a marital dissolution petition against her husband Dante Pugliese (Dante). She later joined to the action four non-spousal parties: Dantes mother Florence Pugliese (Florence), Dantes daughter by his first marriage, Jeanette Pugliese (Jeanette), and two corporations, Passport International Productions Inc. of New Jersey and Passport International Productions Inc. of California (collectively the PIP entities). At times in our opinion, we refer to Florence, Jeanette, and the PIP entities collectively as the non-spousal defendants. As explained in greater detail below, Michele filed a first amended complaint against the non-spousal defendants seeking damages and a constructive trust. All parties stipulated to conduct a bifurcated declaratory relief trial to determine whether Michele had a community property interest in the PIP entities. Following trial, the trial court ruled that Florence wholly owned the PIP entities and that Michele had no community property interest. The court entered judgment to that effect, and dismissed Micheles first amended complaint against the non-spousal defendants. Michele appeals, contending that the judgment must be reversed because: (1) the evidence does not support the trial courts finding that Florence alone funded and owned the PIP entities; (2) the trial court erred in excluding opinion testimony by Micheles expert witness as to who owned the PIP entities; (3) Dante and the non spousal defendants failed to serve final disclosures of income and expenses as required by Family Code section 2105, subdivision (a); (4) the non-spousal defendants failed to produce certain UCC filings requested in discovery; and (5) the non spousal defendants failed to comply with a discovery order regarding production of documents, and Micheles subsequent motions to compel and for sanctions improperly went unheard. Addressing the preliminary issue of appealability, Court conclude that as to the non-spousal defendants, the appeal is from a final judgment that resolves all issues between them and Michele. As to Dante, we deem the appeal to be a petition for an extraordinary writ. Concerning Micheles contentions, Court find none persuasive, and therefore affirm the judgment as to the non spousal defendants, and deny the writ as to Dante.

Joe Ezequiel Cortez appeals his conviction, by jury, of the first degree murder of Karl Wenrich, (Pen. Code, 187, subd. (a), 189)[1], first degree burglary ( 459), attempted first degree robbery ( 211), possession of a firearm by a felon ( 12021, subd. (a)), unlawful possession of ammunition ( 12316, subd. (b)(1)), and possession for sale of a controlled substance. (Health & Saf. Code, 11351.) The jury found that three special circumstances applied to the murder: it was committed during the commission or attempted commission of a burglary ( 190.2, subd. (a)(17)(G)), it was committed during the commission or attempted commission of a robbery ( 190.2, subd. (a)(17)(A)), and it was committed while appellant was an active participant in a gang. ( 190.2, subd. (a)(22).) It further found that, during each offense, a principal discharged a firearm causing death and that the offenses were committed for the benefit of a criminal street gang. The jury found that appellant was personally armed with a firearm ( 12022, subd. (c)) and that he possessed 14.25 grams or more of a controlled substance. (Health & Saf. Code, 11352.5, subd. (1).) The trial court sentenced appellant to a total term in state prison of 33 years plus life without possibility of parole. He was also ordered to pay $11,450 in direct victim restitution, a $10,000 restitution fine, and a $32 crime prevention fine. The trial court imposed and suspended a $10,000 parole revocation fine and awarded appellant 997 total days of custody credit. Appellant contends the trial court erred when it relied on the doctrine of forfeiture by wrongdoing to admit into evidence a statement made by the victim to police officers long after the shooting. He further contends the trial court's instructions to the jury on the criminal street gang allegations were improper pinpoint instructions, that California's death penalty law violates the Eighth Amendment to the United States Constitution because it contains too many special circumstances and that the parole revocation fine should be stricken because appellant's sentence does not allow for parole. We modify the judgment to strike the parole revocation fine and to impose $120 in court security fees. In all other respects, the judgment is affirmed.

Devonne Daley appeals from an order denying her special motion to strike under Code of Civil Procedure section 425.16 directed to the first and second causes of action for fraud and conspiracy to commit fraud asserted in the cross-complaint filed by CK Construction and Development Company, Inc. (CK Construction), Chris P. Smith, Kaoruko Smith and 11924 Palms Boulevard Limited Partnership (collectively, the CK defendants). Court affirm.

Jayco Acceptance Corporation (Jayco) recovered a compensatory damages of $25,252 and a punitive damages award of $25,000 against appellant Donald Strong in a bench trial, predicated on the dilapidated and dangerous state of commercial property quitclaimed by Strong to Jayco. court affirm.

Minon Miller lived with Everett K. Kline for nearly 12 years. They raised a family together, but never married. Miller sued Kline for a half interest in the house they bought in 1995, a share of the funds he borrowed against the equity in the house and reimbursement of the sums she contributed for home improvements. She also asserted causes of action for breach of oral and implied contract under Marvin v. Marvin (1976) 18 Cal.3d 660, alleging Kline had promised to support her in return for her efforts in caring for the house and their children, and, alternatively, sought quantum meruit damages for the reasonable value of the services she had provided to him. Following a bench trial, the trial court entered judgment in favor of Kline. Court affirm.

Appellant Lora Lujambio appeals after summary judgment in a trip and fall case was granted in favor of respondents Mept West Hills, LLC and Trammell Crow Services, Inc. The trial court determined the undisputed facts demonstrate that the alleged defect was trivial as a matter of law and constituted a basis for the summary judgment. Appellant contends the trial court erred by disregarding appellants own testimony and the opinion testimony of her expert, and by failing to find a triable issue of material fact existed as to a dangerous or unsafe condition. Court affirm.

Steve Cutter appeals from a judgment entered in favor of respondent Greenwich Insurance Company (Greenwich). The trial court found after a court trial that Greenwich did not breach a duty to defend its insured against appellants complaint in the underlying action, nor did it breach the implied covenant of good faith and fair dealing, under its insureds commercial general liability insurance policy. We conclude as a matter of law that Greenwich had no duty to investigate facts and evidence outside the four corners of the policy and the underlying complaint under the circumstances presented by the evidence. Rather, the trial court properly found that no extrinsic information was presented that would or should have alerted Greenwich of a further need to investigate coverage. Court therefore affirm.

Corey Brown (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of possessing cocaine base for sale (Health & Saf. Code, 11351.5; count 1) and offering to sell a controlled substance (Health & Saf. Code, 11352, subd. (a); count 2). He admitted to having served three separate prison terms for a felony. (Pen. Code, 667.5, subd. (b).)[1] The trial court sentenced him to an aggregate four year term in state prison.
He contends (1) that the evidence is insufficient to support his convictions and (2) he requests that this court review the sealed reporters transcript of an in camera Pitchess discovery hearing (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) in conformity with the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc). The evidence is sufficient to support the convictions, and there are no flaws in the proceedings on the Pitchess discovery. Consequently, Corut affirm the judgment.

Alfonso B. (Father) is the father of Evangelina V., who was born in March 1989. Father appeals from an order entered March 12, 2007: 1) denying his motion to dismiss pursuant to Welfare and Institutions Code section 350, subdivision (c); 2) finding that Father had physically and sexually abused Evangelina, and thus that she was within the courts jurisdiction pursuant to section 300, subdivisions (a), (b), (d), and (i); 3) declaring Evangelina to be a dependent of the court; and 4) issuing custody, visitation, and reunification orders. Court affirm.

Tanita Marie Baker was convicted by plea of evading an officer (Veh. Code, 2800.2, subd. (a) and driving under the influence of alcohol (DUI) with a prior felony DUI conviction (Veh. Code, 23152, subd. (a); 23550.5). The trial court sentenced her to 16 months state prison plus one year on a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). She appeals, contending that the enhancement must be stricken because it was not alleged or admitted when the sentence was first imposed. ( 667.5, subd. (d).) Court affirm.

Defendant was charged with numerous offenses, including attempted murder of his girlfriend, Elida Mejia and her daughter, R., after Mejia reported that defendant had fired several shots into her car while she and her daughter were inside. However, Mejia changed her testimony at trial, claiming neither she nor her daughter had been in the car when defendant fired the shots. As a result, the jury acquitted defendant of the attempted murder charges, as well as a charge of shooting into an occupied vehicle, but found him guilty, inter alia, of assault with a firearm against Mejia, shooting at an unoccupied vehicle, and child endangerment. Defendants arguments on appeal focus on the sufficiency of the evidence presented to support the assault and child endangerment convictions. He also asserts instructional error, and appeals the imposition of the upper term sentence for his firearm use enhancement, arguing the sentence violates his constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham).

Mathew W., a minor, appeals from an order of the juvenile court, Judge Richard Vlavianos, increasing the amount of restitution the minor had originally been ordered to pay four and one-half years earlier by Judge Michael Platt. Court affirm the order.