CA Unpub Decisions

Defendant Yanira Barajas Alcaraz was convicted of two counts of second degree robbery, and one count of using tear gas and a tear gas weapon. She challenges her conviction, arguing on appeal that the trial court erred by admitting evidence that defendant had taxed individuals in territory claimed by the Lopers criminal street gang. We conclude there was no error in admitting the evidence. The evidence was relevant to defendant’s claim that she acted under duress when committing the robberies. Even if there had been error, it was not prejudicial, given the weakness of the evidence supporting defendant’s duress defense. We therefore affirm.

This is an appeal by a state prisoner, in propria persona, from orders denying his “Petition for Writ of Replevin (Claim and Delivery)” and his motion for reconsideration of that denial. Plaintiff and appellant Lester Yocum contends he adequately stated a claim for relief in his initial petition and that, in any event, he cured any defects by submitting additional materials with the petition for reconsideration. We conclude the trial court properly evaluated the sufficiency of the pleadings. Accordingly, we affirm the judgment.

Appellant Henderson Prospect Partners, L.P., challenges the trial court’s ruling that respondents, C. Mark Anderson and Charles Zandberg, were not personally liable for performance of a lease entered into by appellant and Apple Annie’s of Porterville, Inc., a corporate tenant. This lease was signed by four individuals on behalf of Apple Annie’s, William T. Brown, as president, Paul D. Beilstein, as secretary, and Anderson and Zandberg. Because Anderson and Zandberg did not identify themselves as agents of the corporation, appellant contends that they are personally liable under the lease. Appellant further argues that the lease is unambiguous and therefore the trial court erred in admitting extrinsic evidence regarding Anderson’s and Zandberg’s capacity.
Contrary to appellant’s position, the signatures on the lease were ambiguous. Therefore, the extrinsic evidence was admissible. Further, the trial court’s finding that Anderson and Zandberg signed the lease on behalf of the corporation is supported by substantial evidence. Accordingly, the judgment will be affirmed.

Appellant, Alfredo Nunez, pled no contest to transportation of a controlled substance (count 1/Health & Saf. Code, § 11379, subd. (a)), possession for sale of a controlled substance (count 2/Health & Saf. Code, § 11378), being a felon in possession of a firearm (count 3/Pen. Code, § 12021, subd. (a)(1)),[1] and false personation (count 4/§ 529). Nunez also admitted two prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)) and an arming enhancement (§ 12022, subd. (c)) in each of counts 1 and 2 and three prior prison term enhancements in each of the four counts (§ 667.5, subd. (b)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we will make certain modifications to the judgment and affirm it as modified.

E.G. (Father) and M.A. (Mother) appeal after the termination of their parental rights to Baby Girl A. (the baby) at a Welfare and Institutions Code section 366.26 hearing.[1] Father, joined by Mother, claims that the juvenile court erred by denying his section 388 petition.

Defendants, the Governing Board of Education of Nuview Union School District and the Nuview Union School District (collectively the District), terminated plaintiff James Kelton, a teacher. The District allegedly selected him for termination because he lacked authorization to teach English learners, even though he had emergency authorization, and even though the District retained at least one younger teacher who likewise had only emergency authorization.
Kelton filed this action against the District, asserting one cause of action for a writ of administrative mandate and a second cause of action for age discrimination. These causes of action were bifurcated. The trial court denied Kelton’s mandate claim. The case was then set for a jury trial on his age discrimination claim.
The District filed a motion for summary judgment. The earliest available hearing date for the motion, however, was after the trial date. The District therefore brought an ex parte application to specially set the hearing on the motion, which the trial court granted. Later, Kelton brought an ex parte application to continue the hearing on the motion for summary judgment, which the trial court denied. The trial court then proceeded to grant the motion for summary judgment.
Kelton appeals, contending the trial court erred by:
1. Granting the District’s application to specially set the hearing on the motion for summary judgment.
2. Denying Kelton’s application for a continuance of the hearing on the motion for summary judgment.
3. Granting summary judgment.
Kelton has failed to demonstrate any prejudicial error. Accordingly, we will affirm.

Marsha S., mother of dependent children T.F., Corey F., Kelly F. and Z.F. (collectively, the minors), appeals a juvenile court order summarily denying her petition for modification under Welfare and Institutions Code section 388,[1] by which she sought to have the minors returned to her custody, or alternatively, to have further reunification services. Marsha also appeals orders terminating her parental rights to the minors, contending no substantial evidence supports the court's findings that the beneficial parent-child relationship exception to adoption did not apply. We affirm the orders.

Clifford Dishmon pled guilty to felony child abuse and admitted to inflicting great bodily injury on a child under the age of five. At the time of the plea, the court indicated it would place a seven-year "lid" on Dishmon's sentence. However, after considering Dishmon's remarks at the sentencing hearing, the court withdrew the indicated sentence and stated it intended to impose a nine-year term. The court gave Dishmon the opportunity to withdraw his guilty plea based on the new intended sentence. Dishmon declined to withdraw his plea. The court then imposed the nine-year sentence.
On appeal, Dishmon contends the trial court abused its discretion in sentencing him to nine years because it was greater than the initial seven-year-maximum indicated sentence. We reject this contention and affirm.

A jury convicted Jerry Louis Wright of the lesser included offense of misdemeanor assault (Pen. Code,[1] §§ 240/241, subd. (a); count 1) and battery with serious bodily injury (§ 243, subd. (d); count 2). It found true allegations that he inflicted great bodily injury on count 2 (§ 1192.7, subd. (c)(8)). The jury acquitted Wright of the greater offense of felony assault in count 1 and making criminal threats in count 3. As to count 2, the jury found not true allegations that he personally used a metal rod as a deadly weapon. In a bifurcated proceeding, Wright admitted, among other prior convictions, he had suffered one serious felony and strike prior conviction (§§ 667, subd. (a)(1), 1170.12) that occurred in 1988. After granting Wright's motion to dismiss his strike prior conviction, the trial court sentenced Wright to 7 years in state prison, consisting of a two-year lower term on count 2, a concurrent six-month term on the count 1 misdemeanor, and five years for a serious felony prior. It ordered him to pay restitution fines and various fees.
Wright contends cumulative errors denied him his constitutional rights to due process and a fair trial. Specifically, he argues he was prejudiced by the trial court's error in admitting his previously excluded prior 1988 robbery conviction for the purpose of permitting the prosecution to impeach certain trial testimony and the prosecutor's subsequent misconduct in attempting to elicit irrelevant underlying facts concerning the robbery prior, and arguing to the jury that Wright responded in a deceptive manner when cross-examined about that prior conviction. We affirm the judgment.

A jury found Jonathan Ayala-Vega guilty of first degree residential burglary and found true the allegation that a person other than an accomplice was present at the time. After finding unusual circumstances, the trial court suspended the imposition of sentence and placed him on formal probation for three years. It also imposed various fines, fees and assessments. Vega does not challenge his conviction, but contends that the trial court abused its discretion in imposing probation conditions (1) prohibiting him from being around any firearms, (2) requiring him to obtain the probation officer's approval as to where he lives and works, and (3) prohibiting or regulating his access to alcohol. He also asserts the trial court erroneously failed to orally pronounce fines, fees and assessments included in the judgment (order granting probation) and that some of the fees are incorrect.
As discussed below, some of Vega's contentions have merit. Accordingly, we affirm the judgment (order granting probation) as modified and remand the matter to the trial court for resentencing limited to the imposition of the fines, fees and assessments.

Plaintiff and appellant Valley Casework, Inc. (Valley), a cabinet maker and installer, appeals from a summary judgment in favor of defendant and respondent Lexington Insurance Company (Lexington) on Valley's second amended complaint for breach of contract and breach of the implied covenant of good faith and fair dealing. Valley alleged Lexington owed a duty to defend it against a claim of liability arising out of Valley's installation of cabinets, after one cabinet fell from the wall and broke a faucet causing water damage to a home in August 2008. Lexington had denied coverage under a commercial general liability (CGL) insurance policy issued for the period February 20, 2007, to February 20, 2008. Valley contends Lexington cannot meet its burden of proving there is no conceivable theory raised by the underlying lawsuit bringing it within the operative provisions of the Lexington's CGL policy. Valley also contends there is a triable issue of material fact as to whether a continuous loss endorsement in the policy deems the alleged property damage to have occurred during the policy period.
We reverse the summary judgment on Valley's breach of contract cause of action because Valley raised triable issues of material fact via the declaration of its founder Ronald Raymond, which was erroneously excluded in its entirety by the trial court. However we conclude Lexington is entitled to summary adjudication of Valley's claims for breach of the covenant of good faith and fair dealing and punitive damages. We remand with directions that the trial court enter a new order accordingly.

Appellant Cheri Olvera and respondent Brian Giles lived together from April 2003 to June 2008. When the relationship ended, Olvera sued Giles for breach of contract, seeking $10 million in damages, and for domestic violence, among other tort theories. Giles cross-complained for damages for domestic violence, for return of a diamond engagement ring he alleged was valued at almost $108,000 and for conversion of personal property.
After several days of trial, the jury returned a verdict awarding Giles the engagement ring and denying both parties all other relief. In so doing, the jury found that both Olvera and Giles "intentionally or recklessly" caused or attempted to cause bodily injury to each other, or to place the other "in reasonable apprehension of imminent serious bodily injury," but that neither Giles's nor Olvera's actions or conduct caused the other "to suffer injury, damage, loss or harm."
Olvera does not challenge, at least directly, any of the jury's findings. Instead, she attacks a single evidentiary ruling of the trial court, contending the court erred when, pursuant to Evidence Code[1] section 352, it excluded evidence regarding the source of a surveillance video played in part for the jury concerning an alleged domestic violence incident captured on the video involving her and Giles that took place in 2006 in a bar in Phoenix.
According to Olvera, because witnesses called by Giles testified that Olvera previously had told them she had a copy of a video that, if necessary, she would use against Giles, Olvera contends she should have been allowed to testify that she received a copy of the video from Arizona prosecutors with whom she refused to cooperate, who had charged Giles with misdemeanor domestic violence arising from the 2006 bar incident. Olvera further contends that if this evidence had been admitted, it would have rebutted Giles's argument that Olvera possessed the video in order to get money from him and would have led to a contrary finding that she was in fact harmed by Giles's acts of domestic violence.
As we explain, we reject Olvera's contentions and affirm the judgment.

On March 25, 2012, Butte County Police Officer Stephen Dyke responded to a report of “a domestic violence situation” at an apartment in Chico, California.
At the apartment, Officer Dyke spoke with S. P. S. P. told Officer Dyke that earlier that night she and defendant argued. The argument became physical. S. P. attempted to get away from defendant but was unsuccessful and defendant punched her in the face with a closed fist. According to S. P., when defendant punched her, she lost consciousness and fell to the ground. People heard S. P. screaming for help; they went outside and saw defendant walking away from the victim who was on the ground just in front of her apartment door.
Officer Dyke saw that S. P. had “abrasions” on the palms of her hands and two scratches on her right arm. When defendant was arrested two days later, the arresting officer saw a bruise on the victim’s face. The victim dismissed the bruise on her face as excess make up.

About 11:13 p.m. on June 2, 2012, Glenn County Deputy Sheriff Barry Corbin and Detective Dan Blair were on patrol in Afton. Thefts of fuel and equipment had been recently reported in the agricultural area. The officers noticed a pickup truck without a front license plate and turned to follow. The truck sped away and the officers activated overhead lights. The truck failed to stop immediately and proceeded to turn on a gravel road. It finally stopped. Deputy Corbin recognized the truck as matching the description of a truck related to the thefts in the area. Defendant Chasity Lynn Buetler was driving. She was on parole. Morgan Marengo sat in the passenger seat. Bolt cutters were on the ground next to the truck. Marengo denied knowing anything about the bolt cutters. In the truck bed, Deputy Corbin noticed a large diesel-type pump with diesel fuel leaking from it, a metal fuel tank, and pieces of hose. Deputy Corbin contacted a victim of several thefts. The victim reported that his cousin had a pump that matched the description. Deputy Todd Ross went to the cousin’s property and discovered that a pump was missing and a padlock had been cut. Defendant and Marengo were arrested. The victim identified the metal fuel tank as belonging to him. The fuel tank worth $800 had been taken several days before the officers arrested defendant and her cohort. The cousin identified the fuel pump worth $900 as belonging to him.
Defendant pled no contest to an added count of grand theft and admitted two prior prison term allegations (1995 receiving stolen property and 1998 possession of a controlled substance) in exchange for dismissal of the remaining counts and allegations.
The court sentenced defendant to a term of five years, two years to be served in county jail and a suspended three years on mandatory supervision pursuant to Penal Code section 1170, subdivision (h)(5)(B). The court awarded 151 actual days and 151 conduct days for a total of 302 days of presentence custody credit.