CA Unpub Decisions

In this case we are asked whether the mistaken sale of personal property by a self-storage facility that is alleged to cause significant emotional distress to the owner of the personal property is covered under the facilitys comprehensive general liability insurance. Court conclude there was no potential for coverage because no covered event occurred within the policy period. Accordingly, Court affirm the judgment in favor of the insurance company and against the owner of the property who is the insureds assignee.

Appellant Devonne W. admitted one count of residential robbery in concert (Pen. Code, 211, 212.5, subd. (a), 213, subd. (a)(1)(A)) and one allegation that a perpetrator was armed with a firearm (id., 12022, subd. (a)(1)). The court set appellants maximum time of physical confinement at seven years six months.
On appeal, he contends that the negotiated disposition (1) improperly influenced the juvenile courts dispositional decision, and (2) was illegal because it deprived him of effective assistance of counsel. Court affirm the dispositional order.

Marcos Dominguez Lemos (Lemos) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of vehicle theft. He contends the trial court erred in denying his motion for an acquittal based on insufficient evidence. (Pen. Code, 1118.1.) Court affirm the judgment.

Plaintiff Marilou Cotchett Sells appeals a judgment following a court trial denying her contract and fraud claims arising from an alleged failure of respondents to pay her brokers commission. Court affirm.

Following a jury trial, appellant was convicted of using force or violence to resist executive officers in the performance of their duties. (Pen. Code, 69.) Appellant claims the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of misdemeanor resisting arrest. ( 148, subd. (a)(1).) He further argues the trial court erred by failing to instruct the jury sua sponte that a peace officer is not engaged in the performance of his duties if a detention is unlawful or if the officer uses unreasonable or excessive force to make the detention. Court affirm.

After the trial court denied his motion to suppress evidence under Penal Code section 1538.5, appellant David Michael Craver pleaded guilty to a misdemeanor charge of methamphetamine possession and was placed on probation. In this appeal, he argues the suppression motion should have been granted because his detention was unlawful and because the police lacked probable cause to arrest him or search his vehicle. Court affirm.

Counsel for appellant James Claus Mitchell (appellant) has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally. The judgment is affirmed.

This is an appeal from a judgment convicting appellant Robert Pati Masalosalo of voluntary manslaughter and finding true the allegation that he personally used a knife. Appellant claims his conviction should be reversed because: (1) the trial court failed to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter, (2) the jury engaged in prejudicial misconduct by discussing the case outside of deliberations, and (3) the trial court erred by imposing a midterm sentence totaling seven years in state prison, requiring remand for resentencing. Court affirm.

S.T. (Mother) appeals an order entered October 18, 2006, by the Humboldt County Superior Court, Juvenile Division, which terminated her parental rights to her daughter, E. T. (born July 2001). She contends the order must be reversed because she did not receive proper notice of the hearing that resulted in that order, as well as earlier proceedings that led to a dispositional order entered on April 4, 2006, which denied reunification services for her and set a hearing under section 366.26 of the Welfare and Institutions Code[1]to select a permanent plan for E. T. Mother also argues that she received ineffective assistance from her appointed trial counsel, and that the evidence was insufficient to support the courts adoptability finding. Finally, Mother urges that reversal is required due to noncompliance with the notice provisions of the Indian Child Welfare Act (ICWA).
As discussed below, Court reject Mothers claims, except that pertaining to noncompliance with the notice provisions of ICWA. As to that claim, Court direct a limited reversal. On remand the juvenile court shall order the Humboldt County Department of Health and Human Services (Department) to provide notice as required by ICWA. If, after such notice, no tribe intervenes to claim E. T. as an Indian child, the order be reinstated.

Cheryl S. (appellant) appeals the order terminating her parental rights to her daughter, Anna S. (Anna) (Welf. & Inst. Code, 366.26, subd. (b)(1).) She contends the order was erroneous because her significant relationship with Anna satisfied the exception to termination, and because she received ineffective assistance from her original attorney at the earlier hearing at which reunification services and visitation were ordered terminated. The order is affirmed.

Following denial of defendants motion to suppress (Pen. Code, 1538.5), defendant pleaded guilty to possession of heroin. He appeals from the judgment entered against him on November 20, 2006. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende); see Smith v. Robbins (2000) 528 U.S. 259.) Upon an independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Defendant David Fela Iman Hammond pleaded no contest to making a criminal threat (Pen. Code, 422).[1] The trial court sentenced him to the upper term of three years, but suspended execution of the sentence and placed defendant on probation. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the aggravating factor of defendants record of violence was neither admitted by defendant nor submitted to a jury. Court disagree because the other aggravating factor, defendants felony conviction record, is based on recidivism and thus falls outside of the rule of Cunningham. The record in this case supports this aggravating factor as sufficient to justify the upper term.

Appellants Rosemary and Ben Parvizi[1] appeal summary judgment entered in favor of respondents Abraham Hsieh, M.D., and Scott, Hsieh & Associates (the medical group) in their medical malpractice action. They claim that there were triable issues of material fact, and they also raise procedural and evidentiary objections. Court affirm.

Appellant Senteza Pierre Hardin appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.
Upon Court's independent review of the record Court conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The judgment is affirmed.