CA Unpub Decisions

This appeal arises from the subsequent round of litigation between JPI and its primary insurance carrier, Transcontinental Insurance Company (Transcontinental) and RJS and its excess carrier, Great American Insurance Company (Great American), over contributions to the settlement of the underlying action. On stipulated facts, the trial court ruled in favor of RJS and Great American, and against JPI and Transcontinental, on four separate motions for summary judgment. We shall affirm the trial courts summary judgment rulings for reasons more fully explained below. In doing so, we address an issue involving principles of indemnity and subrogation that may be stated as follows: Assuming JPIs contractual right to indemnity by RJS is triggered under the facts presented here, then does the indemnity clause control the payment obligations of the parties respective insurers, or are such obligations determined by the language in the applicable policies of insurance? The judgment is affirmed.

Defendant Frederick Stewart challenges the trial courts order revoking his probation. He argues that there was insufficient evidence that he violated the terms of his probation. Court disagree and affirm.

Defendant Craig Griffin appeals from a judgment imposed after revocation of probation. In October 2005, defendant pleaded no contest to transportation of cocaine (Health & Saf. Code, 11352, subd. (a)), and admitted three-year (Health & Saf. Code, 11370.2, subd. (a) [prior drug conviction]) and one-year (Pen. Code, 667.5, subd. (b) [prior prison term]) enhancement allegations. In November 2005, imposition of sentence was suspended and defendant was placed on probation for five years, subject to conditions that included submitting to warrantless searches, and staying at least 100 yards away from the 10100 block of Walnut Street in east Oakland. In September 2006, the court found that defendant had violated probation by committing drug and weapon possession offenses, and sentenced him to nine years in state prison, representing the upper term of five years for the Health and Safety Code section 11352 offense, plus four years for the enhancements.
The issue in this appeal is whether the probation violation finding was supported by substantial evidence. We hold that the finding was adequately supported and affirm the judgment.

Plaintiff Luis M. appeals from the entry of an adverse summary judgment on his personal injury claim against the Hayward Unified School District (the district). He claims the district was negligent in failing to provide adequate supervision of the hallway at his high school during the period between classes and that, as a result, he was injured when attacked in the hallway by a group of other students. The trial court held that the districts evidence negated the elements of both negligence and causation, and that plaintiffs evidence failed to create a triable issue of fact with respect to either. Court conclude that the districts evidence was not sufficient to shift the burden of presenting contrary evidence to plaintiff and, therefore, that the motion should have been denied.

Defendant pleaded guilty to felony possession of a stolen vehicle (Pen. Code, 496d, subd. (a)), imposition of sentence was suspended, and he was placed on probation for three years. He maintains that the community service condition of probation must be stricken because the condition is unreasonable or because it violated the plea agreement. Court disagree and affirm the probation order.

L.L. (Father) appeals from an order of the juvenile court adjudging his daughter, D.L., a dependent child as described in Welfare and Institutions Code section 300, subdivisions (a) and (d).[1] Father also appeals from orders of the juvenile court adjudging his children, L.L. Jr. and M.L., dependent children as described in section 300, subdivision (j). He contends that an allegation in one of the dependency petitions fails to state a cause of action and that the jurisdictional findings were not supported by substantial evidence. Court affirm the orders of the juvenile court.

Curtis Kekoa, Jr. (Husband), in propria persona, appeals the order awarding Christina Sagonowsky (Wife) sanctions of $50,000 pursuant to Family Code section 271. He contends the sanctions were improper because they were imposed by a commissioner who lacked jurisdiction to impose them.
The November 28, 2006 order awarding sanctions is affirmed.

Petitioner Curtis Lee seeks a writ of habeas corpus to compel his release from prison. Petitioner alleges that the Governor improperly reversed his grant of parole by the Board of Parole Hearings (the Board). The Governor based his decision on the gravity of petitioners crime. Because the Governors conclusion that petitioners offense was an especially grave second degree murder is unsupported by some evidence in the record, Court grant the petition for writ of habeas corpus. But Court not order petitioners release. Instead, we remand this case to the Board for further proceedings consistent with this opinion.

Defendant David Michael Arreola pleaded guilty to one count each of reckless driving while evading a police officer (Veh. Code, 2800.2, subd. (a)) and battery on a peace officer with injury (Pen. Code, 243, subd. (c)(2)). The trial court sentenced defendant to the upper term of three years on the Vehicle Code offense and a consecutive eight months on the Penal Code offense, for a total of three years eight months.
In imposing the upper term, the trial court relied on three aggravating factors, all related to recidivism: (1) defendant had a number of prior convictions both as an adult and sustained petitions as a juvenile which are numerous and of increasing seriousness; (2) defendant was on probation at the time the crime was committed; and (3) defendant had mixed results in terms of his performance on probation. The judgment and sentence are affirmed.

This case raises only a sentencing issue.
Pursuant to a negotiated disposition, defendant Matthew Gabriel Susmilch pleaded guilty to unlawful possession of a firearm (Pen. Code, 12021, subd. (c)(1)), count 1, and misdemeanor resisting arrest (Pen. Code, 148, subd. (a)(1)), count 4. The trial court placed defendant on probation. Several months later, the probation officer alleged that defendant had violated his probation by leaving a Salvation Army rehabilitation program without completing it, and failing to inform his probation officer of his whereabouts. Defendant admitted the probation violation. The judgment and sentence are affirmed.

Kimberlee S. seeks writ review of the respondent courts order denying her reunification services with her one-year-old son and setting a permanency planning hearing. She contends that there is insufficient evidence to support the courts jurisdictional finding under Welfare and Institutions Code[1] section 300, subdivision (b) that there is a substantial risk that her son will suffer serious physical harm or illness as a result of her failure or inability to adequately supervise or protect him. Court disagree.

Richard Flores appealed from a judgment entered following a jury trial in which he was convicted of first degree burglary (Pen. Code, 459) with the finding within the meaning of Penal Code section 667.5, subdivision (c) that another person, other than an accomplice, was present in the residence during the commission of the offense. He admitted he had suffered a prior conviction for a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667, subdivision (a)(1) and two prior convictions within the meaning of Penal Code section 667.5, subdivision (b). Sentenced to prison for 17 years, he contended the trial court committed prejudicial error when it allowed his supposed confession to be read into evidence. Additionally, he claimed that imposition of an upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 and his federal constitutional rights to a jury trial under the Sixth Amendment to the United States Constitution and due process pursuant to the Fourteenth Amendment, and that he was entitled to an additional day of pre sentence custody credit. On August 24, 2006, Court issued an opinion modifying appellants pre sentence custody credits and in all other respects affirmed the judgment.

Defendant and appellant Kenneth Moore appeals from the judgment entered following a jury trial that resulted in his conviction for grand theft of personal property. Moore was sentenced to a prison term of 10 years.
Moores sole contention on appeal is that the trial court violated his Sixth Amendment and due process rights to have a jury determine the facts upon which the court relied to impose an upper term sentence (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856]). Court affirm.

A modification decision.