CA Unpub Decisions

Question: When an insurance company issues a liability policy, agreeing to indemnify its insured against a third party claim for damages covered under the policy, and to defend the insured against any such claim, does the insurer have a duty to defend the insured against a third party lawsuit seeking injunctive relief but no compensatory damages? Answer: No. The third party’s failure to seek compensatory damages against the insured means the dispute is not a claim for damages under the policy. The insurer’s defense obligation requires it to provide the insured with a defense against a claim seeking damages potentially payable under the policy, not to defend the insured’s honor or otherwise assist it in resolving a nonmonetary dispute.

In defendant Clyde Lee Mallett’s original appeal from his conviction for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), we rejected his contention that his sentence of 28 years to life under the “Three Strikes” law constituted cruel and unusual punishment. However, we conditionally reversed the judgment and remanded the matter to the superior court with directions to conduct another in camera hearing on defendant’s Pitchess[1] motion and to create a record of the files reviewed. (People v. Mallett (Dec. 22, 2011, G045094) [nonpub. opn.].) On remand, the trial court held the in camera hearing and found no discoverable information. The court then reinstated the judgment. Defendant again appeals and asks that we independently review the in camera hearing to determine whether the trial court properly denied his Pitchess motion. We conclude the trial court did not abuse its discretion in finding no discoverable material in the officers’ personnel files.
Defendant also argues he is entitled to be resentenced under the Three Strikes Reform Act of 2012 (Reform Act), enacted as part of Proposition 36, because his conviction was not final at the time the Reform Act became effective and the offense for which he was convicted is neither a serious nor violent felony. The Reform Act amended the Three Strikes law to generally require a new felony offense (the commitment offense) must be a serious or violent felony before a defendant may be sentenced to an indeterminate term of 25 years to life in state prison under the Three Strikes law. (Pen. Code, §§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C); all statutory references are to the Penal Code unless otherwise stated.) The Attorney General counters that defendant was serving an indeterminate life term under the Three Strikes law at the time
the Reform Act was enacted and must therefore petition the trial court to recall his sentence pursuant to section 1170.126, also enacted a

Appellant, Ronnie Neil Garcia, pled no contest to residential robbery (Pen. Code, § 212.5, subd. (a))[1] and admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)).
On appeal, Garcia contends: 1) the court abused its discretion when it denied his motion to withdraw plea; and 2) the imposition of a $240 restitution fine violates ex post facto principles.[2] We will find merit to this last contention and modify the judgment accordingly. In all other respects, we affirm.

On July 11, 2011, appellant Pablo Garcia Linares filed a petition for writ of habeas corpus in the Tulare County Superior Court. In his petition, Linares represented that he was sentenced, on May 18, 2000, to 28 years to life in prison under the “Three Strikes” law for a current offense of auto theft (Veh. Code, § 10851) with two prior strike convictions. Linares alleged that his 1995 robbery conviction did not qualify as a strike because there was no gun use enhancement; hence, his current sentence was unauthorized. Linares provided a copy of the abstract of judgment in his 1995 case; it showed he pled to one count of second degree robbery with no firearm enhancement.
On July 18, 2011, the petition was summarily denied. The trial court found Linares failed to state a prima facie case for relief, in that, under Penal Code section 1192.7, subdivision (c)(19), robbery of either degree constitutes a serious felony and, therefore, a strike; the issue could have been raised on appeal; and Linares delayed filing the petition unreasonably and without legitimate excuse.
On August 26, 2011, Linares filed a petition for writ of habeas corpus with this court, reiterating his allegations.[1] On September 8, 2011, his petition was summarily denied by order.
On or about May 14, 2012, Linares submitted a petition for writ of error coram nobis to the Tulare County Superior Court, in which he reiterated the allegations and claims made in his earlier habeas petition and asked to be resentenced. On May 23, 2012, the petition was denied on the same grounds as the habeas petition. Linares filed a timely notice of appeal.

Defendant was charged with, and convicted of, second degree murder with a gang enhancement. He contends that the enhancement was not supported by substantial evidence at trial. He further argues that the court erroneously and prejudicially denied his motion to bifurcate the gang enhancement. We disagree.
Defendant also argues that he was improperly sentenced to a 10-year prison term on the gang enhancement, and is entitled to five more days of custody credits. Respondent concedes both issues, and we agree.
We strike the 10-year prison term and order the abstract of judgment be modified to reflect an additional 5 days of presentence custody credits. As modified, we affirm the judgment.

A.M. (mother) appeals from an order terminating parental rights to her preschool-aged son I.M. (sometimes child). She argues that the juvenile court should have applied the “beneficial parental relationship” exception to termination. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) She also appeals from an order made at the same hearing denying her “changed circumstances” petition pursuant to Welfare and Institutions Code section 388 (section 388). We find no error. Hence, we will affirm.

Defendant and appellant R.G. (Father) appeals from the juvenile court’s jurisdictional and dispositional findings as to his six-year-old son M.G. He contends that (1) there was insufficient evidence to support the court’s order sustaining the petition as to him under Welfare and Institutions Code section 300, subdivision (b); and (2) the court erred in removing M.G. from his custody. We reject these contentions and affirm the judgment.

P.A. appeals a juvenile court order denying her reunification services in the dependency case of her daughter, Mariah T. She contends the court reversibly erred because it would be in Mariah's best interests to provide reunification services to her. We affirm the order.

A jury convicted Jason James Garman of one count of mayhem (Pen. Code,[1] § 203) and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found Garman personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The court thereafter found true two prison priors within the meaning of section 667.5, subdivision (b); one prison prior within the meaning of section 667.5, subdivision (a); and one strike prior within the meaning of section 667, subdivisions (b) through (i).
The court denied probation and sentenced Garman to a determinate term of 20 years in prison. Garman filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Garman the opportunity to file his own brief on appeal. Garman has filed a letter brief which we will address below.

Following a contested jurisdictional hearing in 2011, the juvenile court found that in 2004, the minor,[1] T.H., committed first degree felony murder (Pen. Code, § 187, subd. (a)),[2] first degree robbery in concert (§§ 211/213, subd. (a)(1)(A)) and first degree burglary (§§ 459/460). The minor contends the burglary adjudication must be reversed because it was barred by the statute of limitations. The People respond: (1) the record discloses evidence that would toll the statute of limitations; or (2) in the alternative, the matter should be remanded to the juvenile court for a determination of whether the prosecution was timely. The minor also contends the disposition minute order and commitment order must be corrected as they reflect an incorrect date of birth and presentence custody credits. The People concede these points. The petition shows on its face the prosecution of the burglary charge was time-barred and we cannot determine from the record on appeal whether the statute of limitations was tolled; accordingly, we must reverse and remand the matter to the juvenile court for a hearing on the statute of limitations. We also direct the juvenile court to ensure the correct date of birth and presentence custody credits are reflected in the disposition and commitment orders.

Farmers Insurance Exchange (Farmers) petitions this court for a writ of mandate directing the trial court to set aside its order denying Farmers’ motion for summary adjudication. Farmers brought this action for declaratory relief and sought summary adjudication on the ground there was no potential for coverage under the homeowners insurance policy it issued to its insureds, real parties in interest Jose Luis Cervantes Bautista and Sara Bautista. We agree with Farmers and grant the petition.

Matthew Rodriguez appeals his conviction by jury of one count of possession of marijuana for sale (Health & Saf. Code, § 11359). The trial court sentenced him to the midterm of two years to be served in county jail (Pen. Code,
§ 1170, subd. (h)(1), (2)), and awarded 38 days of presentence credits.
On May 15, 2012, undercover police officers observed a man enter appellant’s residence in Sun Valley, only to exit a couple minutes later. The officers detained and searched the man, discovering a plastic bag containing marijuana in his pocket.

Defendant and appellant, Erica Denise Dabney, appeals from the judgment entered following revocation of probation previously granted after entry of her plea of no contest to the serious felony of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),[1] during the commission of which she inflicted great bodily injury on the victim, not an accomplice to the offense (§ 12022.7, subd. (a)). The trial court sentenced Dabney to four years in state prison. We affirm.

An amended information, filed on August 9, 2012 and further amended by interlineation on January 14, 2013, charged Irvin Sanchez with two counts of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a))[1] (counts 1 and 2) and one count of shooting at an occupied motor vehicle (§ 246) (count 3) and contained criminal street gang allegations pursuant to section 186.22, subdivision (b)(1)(A), (b)(1)(C) and (b)(4), and firearm use allegations under section 12022.5, subdivision (a), and 12022.53, subdivisions (b), (c) and (e)(1). Sanchez pleaded not guilty to the charges and denied the special allegations.