CA Unpub Decisions

In 2003, Eric Quinton was convicted of making criminal threats (Pen. Code,[1] § 422). He admitted two serious/violent felony prior convictions ("strike priors") within the meaning of section 667, subdivisions (b) through (i). Quinton was sentenced to an indeterminate term of 25 years to life.
Following the passage of Proposition 36 (Three Strikes Reform Act of 2012), Quinton filed a petition to recall his sentence pursuant to section 1170.126. The trial court denied Quinton's petition finding that his 2003 conviction for criminal threats was a serious felony and thus Quinton was not eligible for sentence modification.

Ruben Arroyo appeals from a judgment convicting him of assault with a semiautomatic firearm and other offenses. The key dispute at trial was whether defendant was holding a gun (rather than some other item) when he encountered the victim. On appeal, defendant argues the trial court erred by permitting the prosecution to display or admit into evidence (1) photographs of guns, (2) hearsay testimony that the victim told third parties that defendant had a gun, (3) threats made by defendant's wife to the victim, and (4) gang expert testimony. He also contends the court erred by requiring a defense witness to appear in prison clothes. Further, he asserts there is insufficient evidence to support the jury's finding that he committed an act likely to result in the application of force. Finally, he argues the prosecutor made improper statements during closing arguments.
We reject these contentions, except for the failure to have a defense witness appear in civilian, rather than prison, clothing. We conclude this error was harmless.
The Attorney General concedes, and we agree, the trial court should have stricken defendant's conviction of the lesser included offense of assault with a firearm. We modify the judgment to strike this conviction.

A jury found Robert Martinez guilty of mayhem (Pen. Code,[1] § 203) and battery causing serious bodily injury (§ 243, subd. (d)), both as lesser included offenses of aggravated mayhem (§ 205; count 1). The jury also found Martinez guilty of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2) and found true an allegation he personally inflicted the great bodily injury (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)). Martinez additionally admitted having a prior prison commitment conviction (§ 667.5, subd. (b)). The court subsequently set aside the battery with great bodily injury conviction and sentenced him to a total term of nine years in prison.
Martinez appeals, contending the court erroneously admitted cumulative and prejudicial identification evidence, there was insufficient evidence of disfigurement or disability to support the mayhem conviction, the court erroneously failed to instruct the jury on multiple causation, the court erroneously imposed an excessive fine and fee, and the abstract of judgment does not conform to the court's oral pronouncement of judgment.
The People concede the latter two errors and we shall direct the court to modify the abstract of judgment to correct them. We affirm the judgment in all other respects.

Dante Pacely appeals from a judgment convicting him of firearm-related offenses and a failure to appear offense. He argues the judgment in the firearm case must be reversed due to instructional error. We find no error in this regard.
Pacely also challenges the trial court's calculation of conduct credits for his presentence custody. We conclude the trial court's calculation was incorrect, and modify the judgment to award the correct amount of conduct credits. As so modified, the judgment is affirmed.

Scorpio Demar Purnell appeals the judgment sentencing him to prison for five years four months after a jury found him guilty of two counts of pimping. Purnell contends the trial court prejudicially erred by admitting three hearsay statements at trial. We affirm.

Plaintiffs TetraVue, Inc. (TetraVue) and Paul Banks appeal from a judgment entered in favor of defendant St. Paul Fire & Marine Insurance Company (St. Paul) after the trial court granted St. Paul's motion for summary judgment and denied the plaintiffs' cross-motion for summary judgment. TetraVue and Banks sued St. Paul in a declaratory relief action, seeking a determination that St. Paul owed them a duty of defense in an underlying lawsuit against Banks and TetraVue brought by third party General Atomics by way of a cross-complaint in an action that Banks originally filed against General Atomics. TetraVue and Banks contended that the General Atomics cross-complaint raised claims that were potentially covered by the property damage provision and/or the advertising injury provision of a general liability policy that TetraVue had purchased from St. Paul. The plaintiffs and St. Paul filed cross-motions for summary judgment. The trial court granted St. Paul's motion for summary judgment and denied TetraVue and Banks's joint motion for summary judgment after determining that there was no potential for coverage of the claims under either the property damage provision or the advertising injury provision. The court thereafter granted judgment in favor of St. Paul.
On appeal, TetraVue and Banks argue that the trial court erred in entering judgment in favor of St. Paul because General Atomics's cross-complaint suggests a claim that is potentially covered by the St. Paul policy under the coverage for advertising injury. We conclude that TetraVue and Banks demonstrated the existence of a potential for coverage under the policy under the advertising injury provision, and that St. Paul failed to establish the absence of any potential for coverage. St. Paul thus had a duty to defend TetraVue and Banks in the underlying action. We therefore reverse the judgment of the trial court, and direct the trial court to enter judgment in favor of TetraVue and Banks.

Plaintiffs TetraVue, Inc. (TetraVue) and Paul Banks appeal from a judgment entered in favor of defendant St. Paul Fire & Marine Insurance Company (St. Paul) after the trial court granted St. Paul's motion for summary judgment and denied the plaintiffs' cross-motion for summary judgment. TetraVue and Banks sued St. Paul in a declaratory relief action, seeking a determination that St. Paul owed them a duty of defense in an underlying lawsuit against Banks and TetraVue brought by third party General Atomics by way of a cross-complaint in an action that Banks originally filed against General Atomics. TetraVue and Banks contended that the General Atomics cross-complaint raised claims that were potentially covered by the property damage provision and/or the advertising injury provision of a general liability policy that TetraVue had purchased from St. Paul. The plaintiffs and St. Paul filed cross-motions for summary judgment. The trial court granted St. Paul's motion for summary judgment and denied TetraVue and Banks's joint motion for summary judgment after determining that there was no potential for coverage of the claims under either the property damage provision or the advertising injury provision. The court thereafter granted judgment in favor of St. Paul.
On appeal, TetraVue and Banks argue that the trial court erred in entering judgment in favor of St. Paul because General Atomics's cross-complaint suggests a claim that is potentially covered by the St. Paul policy under the coverage for advertising injury. We conclude that TetraVue and Banks demonstrated the existence of a potential for coverage under the policy under the advertising injury provision, and that St. Paul failed to establish the absence of any potential for coverage. St. Paul thus had a duty to defend TetraVue and Banks in the underlying action. We therefore reverse the judgment of the trial court, and direct the trial court to enter judgment in favor of TetraVue and Banks.

Plaintiff and respondent, GSF Enterprises, Inc. (Plaintiff or GSF), sued Victorville Mediterranean Gardens, LLC ("VMG"), Executive Information Services and Investment Group, LLC ("EISIG"), and the majority owner of those companies, Larry D. Gonzales (Gonzales; sometimes together, Defendants), over Defendants' defaults in repaying two notes that were collateralized by two pledge agreements for stock in VMG and EISIG. Plaintiff sought rescission and damages on fraud, breach of contract, and other theories. (Civ. Code, § 1689, subd. (b)(1), (2); all further statutory references are to the Civil Code unless noted.)
After a bench trial, Plaintiff obtained judgment in its favor on the cause of action for rescission of the notes and their related pledge agreements, due to fraud, and it also prevailed on two causes of action for declaratory relief, to establish Gonzales was the alter ego of VMG and EISIG. Judgment was entered for $250,000 collectively against Defendants.
Defendants appeal, arguing there was insufficient evidence presented to establish that Plaintiff "was actually deceived by the concealment or misrepresentation of any material fact or that [Plaintiff] actually relied upon the fraudulent representation when it consented to the funding agreements." The record is otherwise. The judgment is affirmed.

Defendant Jeffery Crayton Yelverton, Sr., was involved in a fatal car accident. As a result, the People filed an information charging defendant with voluntary manslaughter ( ADDIN BA xc <@st> xl 27 s HPOJUA000001 xpl 1 l "Pen. Code, § 192, subd. (a)" Pen. Code, § 192, subd. (a))[1] and hit and run ( ADDIN BA xc <@st> xl 18 s HPOJUA000002 xpl 1 l "Veh. Code, § 20001" Veh. Code, § 20001, subd. (b)(2)). Following trial, a jury found defendant guilty of both crimes. Finding the offenses were committed pursuant to separate criminal objectives, the trial court sentenced defendant to a term of six years on the voluntary manslaughter and a consecutive eight months on the hit and run. Defendant appeals the sentence imposed, contending: (1) his sentence for hit and run should have been stayed under ADDIN BA xc <@osdv> xl 11 s HPOJUA000023 l "section 654" section 654; and, (2) the trial court abused its discretion in imposing consecutive sentences. We find no error and affirm the judgment.

A modification decision.

In this delinquency case, the juvenile court permitted the district attorney, on the day of adjudication and over the objection of defense counsel, to amend the petition to allege a second felony, assault by force likely to produce great bodily injury, in addition to the original allegation of second degree robbery. The court found both allegations true. On appeal, the minor’s counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436) requesting this court’s independent review of the record.
We requested additional briefing and now reverse the true finding on the assault allegation under the authority of In re Robert G. (1982) 31 Cal.3d 437, 445 (Robert G.) (“a wardship petition . . . may not be sustained upon findings that the minor has committed an offense or offenses other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge”). We find no other arguable issues, and affirm the true finding on the allegation of second degree robbery.

Ferial Broyles appeals from a judgment of conviction after pleading guilty to one count of grand theft. The trial court suspended imposition of appellant’s sentence and ordered probation for five years. After a contested restitution hearing, the court ordered appellant to pay restitution in the total amount of $80,252.43. We ordered this appeal was limited to sentencing and other noncertificate issues. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal. We have reviewed the entire record and find no arguable issue. We affirm.

In this delinquency case, the juvenile court permitted the district attorney, on the day of adjudication and over the objection of defense counsel, to amend the petition to allege a second felony, assault by force likely to produce great bodily injury, in addition to the original allegation of second degree robbery. The court found both allegations true. On appeal, the minor’s counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436) requesting this court’s independent review of the record.
We requested additional briefing and now reverse the true finding on the assault allegation under the authority of In re Robert G. (1982) 31 Cal.3d 437, 445 (Robert G.) (“a wardship petition . . . may not be sustained upon findings that the minor has committed an offense or offenses other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge”). We find no other arguable issues, and affirm the true finding on the allegation of second degree robbery.

Ferial Broyles appeals from a judgment of conviction after pleading guilty to one count of grand theft. The trial court suspended imposition of appellant’s sentence and ordered probation for five years. After a contested restitution hearing, the court ordered appellant to pay restitution in the total amount of $80,252.43. We ordered this appeal was limited to sentencing and other noncertificate issues. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal. We have reviewed the entire record and find no arguable issue. We affirm.