CA Unpub Decisions

Defendant and appellant Harvey G. Ottovich (Ottovich) challenges, on various grounds, the trial courts entry of default judgment in favor of plaintiff and respondent County of Alameda (County) in respondents action against him for ejectment, nuisance, trespass and quiet title. Court affirm.

In this appeal, claimant Danco Valve Company (Danco) seeks relief from a judgment denying its application for an order to show cause against the Insurance Commissioner of the State of California, as conservator of Golden Eagle Insurance Company (Golden Eagle). Danco challenges the trial courts determination that the relevant policies absolve Golden Eagle of a duty to defend sexual harassment claims brought by a bookkeeper at Dancos workplace. Like the trial court, Court conclude the policies exclude coverage for such claims. Accordingly, Court affirm the judgment.

David Clark and David Furia appeal from a judgment entered in a real property dispute. They contend the trial court interpreted the underlying sale and deed of trust documents incorrectly. Court conclude the courts interpretation is supported by substantial evidence and affirm.

Court deny a motion to dismiss an appeal upon concluding that appellant has standing to appeal as a party aggrieved by the judgment. (Code Civ. Proc., 902.) Court express no opinion on the merits of the appeal.

Defendant was convicted of aggravated kidnapping and other charges after he and a codefendant, Dontae Warfield, displaying a pellet gun, carjacked a man and forced him to drive them in his car for about an hour. During the drive, defendant left the car once for the purpose of attempting to rob another man. The drive ended when the driver attracted the attention of police, who pulled over the car and arrested the two defendants.Defendant contends that (1) the charge of aggravated kidnapping, added after the preliminary hearing, should have been dismissed because it was intended to penalize him for refusing to accept a plea offer, (2) the court committed instructional error, (3) the prosecutor committed misconduct, (4) the court abused its discretion in refusing to dismiss the charge of aggravated kidnapping under Penal Code section 1385, and (5) his sentence constituted cruel and unusual punishment. Court affirm.

A jury convicted defendant Charles ONeal of false imprisonment, assault by means of force likely to produce great bodily injury, infliction of corporal injury upon a cohabitant, and removal of a cellular telephone to prevent a call for police assistance. (Pen. Code, 236, 245, subd. (a)(1), 273.5, 591.5 [all further section references are to this code].) The court sentenced defendant to an aggregate prison term of five years, eight months: four years for infliction of corporal injury upon a cohabitant; one year for assault; eight months for false imprisonment; and a concurrent 180-day jail term for removal of a cellular telephone.
Defendant claims three instances of instructional error: (1) failure to define assault for the jury; (2) failure to instruct on misdemeanor battery against a cohabitant as a lesser included offense of felony infliction of injury upon a cohabitant; and (3) failure to instruct the jury that it had to agree unanimously on the act constituting false imprisonment. Defendant also claims, in a petition for rehearing we granted, that he was wrongly denied a jury trial on facts used by the trial court to sentence him to an upper term of four years for infliction of corporal injury upon a cohabitant.
The courts failure to instruct the jury on the definition of assault was error, as the People concede. However, we find the error harmless because the factual question posed by the omitted assault instruction (whether defendant threatened physical force) was resolved adversely to defendant under other properly given instructions when the jury found defendant guilty of inflicting corporal injury (applying physical force) upon a cohabitant. We find no error in the courts decision not to instruct on a lesser included offense of simple battery without injury because uncontroverted evidence established that the victim suffered injury. We conclude that no unanimity instruction was required because the false imprisonment was not a series of discrete acts but a continuous course of conduct. Finally, we reject defendants claim of sentencing error because imposition of the upper term was based on the fact of a prior conviction, and determination of that fact need not be submitted to a jury. Accordingly, Court affirm the judgment.

David M. Johnson appeals following his conviction of kidnapping (Pen. Code, 207, subd. (a)), willful infliction of corporal injury on a spouse with a prior conviction ( 273.5, subds. (a) & (e)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and making criminal threats ( 422).) With respect to the kidnapping and corporal injury on a spouse counts, the jury also found true allegations that defendant had inflicted great bodily injury ( 12022.7, subd. (a).) The court sentenced defendant on the kidnapping count to the upper term of eight years, and three years for the enhancement. It also imposed the upper term on the remaining counts, but stayed the terms pursuant to section 654.
Defendant contends that his conviction for kidnapping must be reversed because the instructions on withdrawal of consent allowed the jury to convict him without finding the requisite intent. He also contends that in violation of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), the court imposed the aggravated term on each count based upon aggravating factors that must, absent defendants waiver, be submitted to a jury.
The sentence is vacated with directions that on remand the court may reinstate the sentence if based upon its weighing of the aggravating factors it properly found under the Almendarez-Torres exception (Almendarez-Torres v. United States, supra, 523 U.S. 224), and the factors in mitigation, it exercises its discretion to impose the upper terms. If the court does not reinstate the sentence on these grounds, then it shall hold a resentencing hearing consistent with Cunningham, supra, 127 S.Ct. 856, and the views expressed in this opinion. In all other respects the judgment is affirmed.

Appellants Jacqueline M. and Jonathan A. challenge the juvenile court order finding dependency jurisdiction over their son. Court affirm.

On January 24, 2006, the Board of Prison Terms (Board) found Anthony Mason, who was serving an indeterminate prison term of 16 years to life with the possibility of parole for his conviction of second degree murder with use of a deadly weapon (Pen. Code, 187, 12022, subd. (b)), unsuitable for release on parole. Mason filed a petition for writ of habeas corpus in this court, alleging that the Board unconstitutionally denied him parole at his 2006 suitability hearing. We issued an order to show cause directed at the Director of the Department of Corrections and Rehabilitation (warden), and appointed counsel for Mason. Court conclude that the Board did not violate Masons due process rights when finding him unsuitable for parole because some evidence supported the Boards decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) Court therefore deny Masons petition for habeas corpus relief.

Agustin B., a minor, appeals from a judgment following revocation of his grant of deferred entry of judgment and the imposition of terms and conditions of probation. 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 the minor, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

A modification decision.

Logix Development Corporation (Logix), D. Keith Howington and Anne Howington filed an action against multiple defendants, including appellant J. Roger Faherty, over disputes arising from a common venture involving pay per viewadult entertainment channels. The case went to trial against Faherty only as the alter ego of one of the corporate defendants, and the jury returned verdicts of $18,084,612 for Logix, and $4,457,234 in favor of the Howingtons. Court reject Fahertys contention that, as a matter of law, he cannot be held to be the alter ego of the corporate defendant in question. Court also find that the judgment in favor of Logix must be reduced by $12,548,510 and that the Howingtons recovery under the judgment must be reduced by $1,604,751. In all other respects, Court affirm the judgment.

Romulo Nava, Jr., appeals from the judgment entered after a jury convicted him of the first degree murder of Sebero Ruiz and found true special allegations a principal had personally and intentionally discharged a firearm causing death or great bodily injury and the offense had been committed for the benefit of a criminal street gang with the specific intent to further criminal conduct by gang members. Nava contends the trial court violated his constitutional right to confront witnesses against him by permitting the People to call as a witness Brenda Martinez (Martinez), who had been convicted in a separate trial of the second degree murder of Ruiz, and admitting into evidence Martinezs prior statements to the police after she had repeatedly stated I dont remember to questions about the crime posed by the prosecutor and defense counsel. Court affirm.

Appellant Darnell Harold White argues that evidence is insufficient to support his conviction for willful, deliberate and premeditated attempted murder. He also contends that the sentence for his conviction on count 5, unlawful possession of a firearm by a felon, should be stayed pursuant to Penal Code section 654. Finally, he argues the trial court improperly admitted testimony by a gang expert regarding his subjective intent. Court stay the sentence on count 5, and otherwise affirm.