California Court Opinions

Filed 8/28/09 (Original published opn. filed 7/31/09; this supp. opn. is not certified for publication and may not be cited or relied on under Cal. Rules of Court, rule 1115. Because it modifies an otherwise published opinion, this supp. opn. has been posted with the published opinions to facilitate tracking subsequent history of the 7/31/09 opn.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GRIFFIN DEWATERING CORPORATION,

Plaintiff and Respondent,

v.

NORTHERN INSURANCE COMPANY OF NEW YORK,

Defendant and Appellant.

G036896

(Super. Ct. No. 00CC04293)

SUPPLEMENTAL OPINION ON

DENIAL OF REHEARING

I. Supplemental Opinions on

Denial of Rehearing

California reviewing and appellate courts have found it useful, on occasion, to issue supplemental opinions explaining why they were denying rehearing, and indeed have done so since 1906. (See National Bank v. Los Angeles etc. Co. (1906) 2 Cal.App. 659.) In the present case, several factors prompt this supplemental opinion. The petition for rehearing cites two “new” authorities. It also provides a long list of “facts” it says should have been mentioned in the opinion. And we have also received a request for modification from an accountant (who does not otherwise appear to be connected with the case), who, in that request, reveals that he misunderstands our original opinion. He thinks we said that the insurer “did not breach the insurance policy.”

We issue this supplemental opinion to deal with “new” authorities, the proffered new “facts,” as well as make clear (now) that the insurer breached the policy; it just didn’t breach it unreasonably.

II. “New” Authority

The rehearing petition cites us to two “new” authorities, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 (Wilson) and the as-yet unfinal Bosetti v. U.S. Life Ins. Co. in The City of New York (2009) 175 Cal.App.4th 1208 (Bosetti). Neither case is apposite, since both are explorations of the genuine dispute doctrine. (See Wilson, supra, 42 Cal.4th at pp. 723 [explaining why insurance company could not obtain summary judgment under genuine dispute defense where insurance company claimed that 21-year old plaintiff in an uninsured motorist case had a preexisting degenerative disk disease]; Bosetti, supra, 175 Cal.App.4th at pp. 1235-1241 [explaining why insurance company was entitled to summary adjudication of bad faith claim against it under genuine dispute doctrine].) And as we said in the original opinion, we do not address at all any arguable applicability of the genuine dispute doctrine to the case.

Moreover, neither Wilson nor Bosetti purports to change the rule that a request for a defense in a third party (liability) insurance policy is evaluated at the time the request is made, in light of the facts of the complaint against the insured and other facts known by the insurance company, in light of the potentiality rule.

III. New “Facts”

To read the petition for rehearing, one would almost believe that we had decided a different case. On pages 9 through 13 of the petition for rehearing appear a long list of “facts” that the insured says should, at least, have been included in the opinion. The gravamen of these “facts,” at least according to the petition, is that the insurer “knew” (the word is used no less than eight times) from the inception of the policy that the total pollution exclusion in its policy would not exclude the company’s liability for any sewage claims, and its employees readily admitted as much.

Preliminarily, it should be noted that almost all the “facts” which the petition for rehearing lists came from evidence developed after the trial court had ruled in a pre-trial motion in limine that the insurer had breached the insurance contract unreasonably as a matter of law. Those facts were not put before the trial judge in that fateful motion. Most of the evidence supporting them was developed as a part of the insurer’s punitive damages case, which went to the jury with the express understanding that the insurer breached the insurance policy unreasonably. Thus the most that might be made of these facts would be some sort of remand; the judgment (based on the in limine ruling) still could not stand.

However, it turns out that the list of “facts” contains some serious errors. The record references do not support the “facts” as framed in the petition for rehearing.

In an appendix to this supplemental opinion, we go through each of the 16 proffered “facts,” and explain how each one is either (a) irrelevant to the basic question of whether the insurer was reasonable when, for a time, it declined to defend the insured against the district’s suit for indemnity, or (b) is an incorrect statement of the record. The appendix in most cases sets forth the actual transcript verbatim.

We give one example right now. The petition for rehearing states as a “fact” this: “Northern knew the pollution did not bar coverage for the property damage claim by South Coast because Lynch [one of the insurer’s employees] testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).” (Rehr. pet. at p. 9.)

But if one checks pages 3625 and 3626 of volume 15 of the Appellant’s Appendix, one merely finds testimony acknowledging that there was in-house discussion among the insurer’s employees concerning the applicability of the pollution exclusion to sewage claims and that some employees disagreed with others on the topic. That hardly shows the insurer itself “knew” there was coverage. It only shows in-house debate. Moreover, the record reference for what “Northern knew” is to testimony elicited in the context of a question that explicitly did not seek any “legal binding [sic] on anybody.”

In any event, all the proffered facts (whether accurate statements of the record or not) are irrelevant because, as the court stated in Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865, opinion evidence is irrelevant to the interpretation of an insurance policy. Under the heading (directly apropos to the petition for rehearing here): “Admission of Liability by Insurer’s Employees Does Not Establish Liability,” the Chatton court said: “Respondents’ final argument that there was coverage for advertising injury under the terms of the CGL policy because National Union’s employees themselves admitted the existence of such liability requires but a brief reply. It is well settled that the interpretation of an insurance policy is a legal rather than a factual determination [citations]. Consistent therewith, it has been held that opinion evidence is completely irrelevant to interpret an insurance contract. [Citations.]” (Chatton, supra, 10 Cal.App.4th at p. 865, original italics deleted, italics added .)

As the appendix shows, there were no actual admissions of liability in the case before us. Thus, Chatton, where there were admissions, applies a fortiori.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.

Appendix to Supplemental Opinion on Denial of Rehearing

There are 16 “facts” which the petition for rehearing says should have been in the original opinion. In this appendix we set out verbatim (with one long exception, there mostly verbatim) the entirety of each “fact,” and then explain why the “fact” was not in the original opinion. In most cases we have set out in the margin the actual testimony or language from the record to which the petition for rehearing refers, erring (alas, to the detriment of yet more trees) on the side of inclusiveness.

1. Fact as framed in the petition for rehearing: “Northern knew it was insuring Griffin’s operations, including its sewage by-pass operations, against claims and lawsuits alleging property damage, as evidenced by (1) Northern inspecting Griffin’s operations in 1993 and 1995 during and after its underwriting process and (b) [sic] describing Griffin’s covered ‘operations’ on the first page of Northern’s policy (AA 4032) as those of a ‘sewer contractor.’ (16 RT 3068, 3071).”

Reason not included in the original opinion: The record references are to the testimony of the insured’s expert. The testimony of a party’s bad faith expert that the expert thought a policy should cover sewage “operations” does not establish that the insurer “knew,” at least prior to the MacKinnon decision, that sewage claims were not within the purview of the policy’s pollution exclusion. Also, the opinion of an expert is not relevant to establish coverage as such. (See Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865 [“opinion evidence is completely irrelevant to interpret an insurance contract”].)

2. Fact as framed by the petition for rehearing: “Vanetta Smiley, Northern’s adjuster (who participated in denying Griffin a defense), knew that ‘the building of sewer bypasses was considered an operation for which Northern was insuring Griffin.’ (15 AA 3649 (Depo. P. 370:1-6)).”

Reason not included in the original opinion: The record reference merely shows that at the time of the deposition Smiley only acknowledged that sewage bypasses were an “operation for which” the insurer “was insuring” the insured. It is not an admission that, at the time the decision was made in 1999, Smiley thought the pollution exclusion could not apply to a sewage claim.

3. Fact as framed by the petition for rehearing: “Jerrie Lynch (Northern’s underwriter on Griffin’s policy and Mike Bernath (the author of Northern’s underwriting guidelines) believed sewage was not a pollutant, thereby raising the ‘potential’ that the claim was covered, obligating Northern to defend Griffin. (16 RT 3186-87)”

Reason not included in the original opinion: The record references to pages 3186-3187 show that the insured’s expert believed that a particular employee of the insurer named Speers made the decision to deny coverage maybe — or maybe not (the witness tried to qualify his answer) in consultation with another employee of the insurer named Bernath. To be charitable to the petitioner, it is possible that the petition also refers to testimony on the preceding page, in which the expert noted that different employees of the insurer had different views on the application of the pollution exclusion to sewage claims, which disagreement was apparently resolved by Speers (or maybe Speers and Bernath together) unilaterally. Just because one employee of an insurance company may believe that there is coverage does not necessarily make a denial of coverage unreasonable, a point that the expert appeared to concede in his answer to an insurance company’s right to “internal disagreement.”

4. Fact as framed by the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for the property damage claim by South Coast because, as Lynch testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).”

Reason not included in the original opinion: We quote from all of page 3625 of the Appellant’s Appendix and into much of page 3626 in the margin. Lynch’s testimony simply shows that insurance company employees can disagree with each other. We know of no law that says that if an insurance company employee thinks that an exclusion might not apply to a given situation that that means any position to the contrary on the part of the insurance company is necessarily unreasonable.

5. Fact as framed in the petition for rehearing: “Northern knew that ‘the underwriting intent of putting the total pollution exclusion endorsement on the policy was so that Northern would be protected against certain environmental risks or harms associated with Griffin Remediation Company” (13 RT 2590, ital. added) a sister company of Griffin Dewatering Corporation. Indeed, Northern insisted on including the total pollution exclusion in the policy for that purpose. (13 RT 2592) Northern knew the pollution exclusion was not intended to exclude coverage for Griffin Dewatering’s sewage –related claims (id.) but to exclude claims related to Griffin Remediation’s activities (13 RT 2686) since those activities presented ‘environmental [matters] that could trigger pollution claims.’ (13 RT 2646-47).”

Reason not included in the original opinion: The record references to pages 2590 through 2592 are to the testimony of William Harrison, the insured’s broker. His testimony shows, in the context of a previous question involving workers’ compensation risks, that he thought the pollution exclusion should not preclude sewage claims. It also shows that the insured’s broker thought that the insured’s sister company, the “remediation” company, was indeed subject to the pollution exclusion. As noted above, opinion evidence cannot establish coverage.

6. Fact as framed in the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for property damage claims caused by sewage in connection with the South Coast project because Northern issued a Certificate of Insurance naming Griffin and South Coast as insured in connection with liabilities on that project, which dealt exclusively with sewage. (13 RT 2710-11; 17 AA 4178, 4181 (Certificate of Insurance)).”

Reason not included in the original opinion: The record reference to pages 2710 to 2711 of the reporter’s transcript is to testimony of Robert Gokoo, an attorney representing the district, which simply establishes that the district was itself an additional insured on the policy. The record reference to page 4178 is to Griffin’s proposal to do work for the district, and the reference to page 4181 is to the certificate of insurance that said: “South Coast Countys Water District is hereby added as an additional insured. . . .” None of this shows that the insurer intended that the pollution exclusion ever applied to sewage claims.

7. Fact as framed in the petition for rehearing: “Following Northern’s initial denial, Bill Harrison (Griffin’s insurance broker since 1987 who negotiated and placed the policy) directed one of his brokerage’s attorneys in its environmental division, Brett Reich, to prepare and send a written legal opinion to Northern (13 RT 2599) setting forth (1) caselaw holding that sewage claims were not barred by the pollution exclusion; and (2) an explanation why the exclusion did not bar the Waters claim, hence demonstrating a potential for coverage. (13 RT 2595-98, 2675, Exh. 74) The reasons Reich detailed included: . . . .” We omit the details of the argument set forth in the letter. Reason not included in the original opinion: A letter from the insured’s broker in 1996, more than seven years prior to the MacKinnon decision, making the legal case for coverage does not necessarily show that the insurer’s position was unreasonable. It only shows that the insurer was exposed to some of the insured’s arguments in favor of coverage.

8. Fact as framed in the petition for rehearing: “At trial, Tom Lysaught (Director of Northern’s Environmental Claims Unit who participated in the denial of Griffin’s claim) conceded that the Reich’s memorandum ‘was correct’ because (1) sewage is not necessarily a pollutant; (2) the pollution exclusion applies only to environmental harm; and (3) the exclusion is ambiguous (18 RT 3572, 3568-69), thus confirming Northern’s awareness of a potential for coverage, requiring a defense.”

Reason not included in the original opinion: The record reference to pages 3568 through 3569 of the reporter’s transcript do not show that Lysaught admitted that he thought it was ambiguous from the beginning; they only show that he recognized that courts had disagreed about application of the exclusion. Indeed, far from thinking that the broker’s letter was correct, the transcript shows that he continued to think it incorrect. The record reference to page 3572 of the reporter’s transcript simply shows while Lysaught recognized that the MacKinnon opinion had ultimately vindicated the broker’s position, there were “other cases” that had taken the insurer’s side.

9. Fact as framed in the petition for rehearing: “Harrison testified that, when Griffin’s policy came up for renewal, he voiced concern to Lynch about renewing with Northern. Harrison did so because Northern had denied the Water’s sewage claim because, as Lynch told Harrison, Northern “did not want to set precedent” given that there were ‘many, many other’ such claims. (13 RT 2612) But Lynch assured Harrison that if Griffin renewed, he would ‘come to Houston’ (13 RT 2611), ‘look [Griffin’s principals] in the eye’ (id.) and tell them that “[Northern] would agree to cover the – any similar-type sewage backup claims going forward” (id.).”

Reason not included in the original opinion: Pages 2610 through 2612 of the reporter’s transcript is simply the broker’s testimony that the insurer was willing to cover future sewage claims after the Waters claim. This part of the case was well covered in the original opinion explaining the parties’ disagreement over the scope of the Houston Oral Promise.

10. Fact as framed in the petition for rehearing: “Harrison testified that at the Houston meeting, Lynch stated Northern was ‘sorry that the Waters claim had not been covered’ (13 RT 2623-24) but in promising ‘to cover [sewage claims] going forward,’ Lynch meant that ‘[Northern’s] underwriting intent all along [including under the 1996 policy] . . . never contemplated not covering . . . sewage backup claims’ (13 RT 2612) that and Lynch ‘intended to cover these types of claims all along.[’] (13 RT 2614).”

Reason not included in the original opinion: Pages 2623 through 2624 of the reporter’s transcript simply recount Lynch’s attendance at the meeting giving rise to the Houston Oral Promise. It does not follow that because Lynch “was apologizing” for the way the Waters claim “went” that the insurer acted unreasonably in denying the defense of that same claim later. Page 2612 recounts the insured’s broker’s opinion that if the insurer was willing to cover sewage claims after the Waters claim, then there must have been an underwriting intent “all along” that the sewage claims would be covered. Lynch, however, never said that. Pages 2614 to 2615 similarly recounts what the broker thought Lynch thought, not what Lynch actually thought. Obviously the fact that a broker thought that an employee of an insurance company thought that a particular exclusion should not apply in a given instance is not substantial evidence that the insurer itself never intended the exclusion should apply.

11. Fact as framed in the petition for rehearing: “Harrison, Kazem Khonsari (Griffin’s President) and Eric McAnelly (Griffin’s in-house counsel) understood Lynch’s statements in Houston to mean that given the parties’ underwriting intent, Northern would ‘at least defend the action’ arising from the Waters claim. (13 RT 2629, 15 RT 3002, 15 RT 3007; 14 RT 2814).”

Reason not included in the original opinion: The record references simply recount why the insured re-submitted a request for a defense of the district’s suit. Page 2629 shows that the broker thought it was worth “another run,” pages 3001 and 3002 show the insured’s president’s recollection of the Houston Meeting that the insured would not assert the exclusion if anything in the future happened, page 3007 is to the same effect, except there the insured’s president was under cross-examination, and page 2814 was the testimony of a contract administrator working for the insured who also recounted the Houston meeting as one in which it was agreed that, if any sewage claims arose in the future, they would be covered. The topic of the Houston Meeting was well covered in the original opinion, and in fact the main reason the case took so long.

12. Fact as framed in the petition for rehearing: “During the Houston meeting, Khonsari ‘specifically asked [Lynch] if anything comes from South Coast are we covered, and the answer was yes.’ (15 RT 3019) Lynch responded that ‘anything that developed out of the Waters’ claim would be covered in the future.’ (15 RT 3022) ‘The main issue [Khonsari] was concerned about was our coverage about this sewage bypass.’ (15 RT 3005) Lynch ‘understood’ his concern, ‘assured [Khonsari] and [shook his] hand [saying] ‘that won’t be happening in the future, go on with your business. You’re covered. Don’t worry about it anymore.”’ (15 RT 3009).”

Reason not included in the original opinion: The opinion goes to some length to explain why the court could not affirm the judgment based on the Houston Oral Promise. (See slip. op. at pp. 38-39.) As the original opinion notes, had the insured added a cause of action based on the Houston Oral Promise, the conflict over whether the district’s suit on the Waters claim was a “future” suit within the meaning of the Houston Oral Promise would have been resolved in the insured’s favor.

13. Fact as framed in the petition for rehearing: “McAnelly, who attended the Houston meeting, had the same understanding from Lynch as Khonsari — that Northern would provide coverage for any claims related to the Waters incident in the future. If the Waters claim suddenly ‘c[a]me back to life the week after the Houston meeting,’ Northern would have ‘paid [it].’ ‘That’s what I understood’ at the 1997 Houston meeting. (14 RT 2814) (This testimony went unrebutted at trial; Northern presented no employee who attended the 1997 Houston meeting.).”

Reason not included in the original opinion: As with the previous fact, the original opinion recognizes that the insured’s side of the Houston Oral Promise was that the Waters claim would be covered if it iterated itself in the form of a future suit against the insured. (See slip op. at p. 3.) However, as the original opinion also explains, the insured elected to forego liability on a breach of the Houston Oral Promise and focus on liability under the written insurance contract. (See slip op. at pp. 17-19, 38-39.)

14. Fact as framed in the petition for rehearing: “Northern knew that South Coast’s complaint alleged a claim for ‘property damage’ within the meaning of the insuring clause of Northern’s policy (17 AA 4156-77), thereby raising a potential for coverage Northern could not conclusively eliminate based on a dispute regarding the pollution exclusion’s applicability — thus requiring Northern to defend.”

Reason not included in the original opinion: The swath of pages cited is to the complaint by the district against the insured. This “fact” is little more than a legal argument.

15. Fact as framed in the petition for rehearing: “Northern knew there was no California caselaw interpreting the pollution exclusion (15 AA 3668; 18 RT 3600) and hence no California law support for Northern’s position that the exclusion was unambiguous and barred Griffin’s claim.”

Reason not included in the original opinion: As explained in the original opinion, the absence of direct Supreme Court authority supporting the application of an exclusion to a given suit does not necessarily show that the application of the pollution exclusion to sewage is unreasonable. The original opinion also notes that at least two panels of the Court of Appeal, prior to MacKinnon, took a broad view of the total pollution exclusion.

16. Fact as framed in the petition for rehearing: “Northern knew that actual coverage existed, since when Griffin was sued in an earlier case (‘City of Vista’) in which sewage had spilled into a lagoon, Northern agreed to defend Griffin even though the policy contained a pollution exclusion containing the same definition of ‘pollutant’ as in the policy at issue here. (4 AA 829, 901, 905; RA 109; RA 6-7, 102-05)”

Reason not included in original: The record reference to page 829 of the appellant’s appendix is simply to the cover page of a reply by the insurer in a summary adjudication motion in 2003. Pages 901 and 905 of the appellant’s appendix are to a letter from AIG, which, while too long to reproduce verbatim, does not mention any City of Vista claim. Pages 6 and 7 of the Respondent’s Appendix are from the insured’s own in limine motion to exclude evidence that the insurer’s policy was anything but primary. Page 6 is from the supporting points and authorities asserting that the insurer had agreed to honor a 1998 request to defend a suit (not exactly an “earlier” case – recall that the Houston Meeting — where everyone agreed that the company would cover all future sewage claims — was in May 1997) involving the City of Vista. That case involved a sewage spill from drilling into a pipeline. Pages 102 to 103 of the Respondent’s Appendix is a letter from the insured’s contract administrator referencing the City of Vista suit. While the letter is too long to reproduce, we see nothing in it that the insured made a request for a defense in that suit prior to the 1997 Houston Meeting. The only date given about that suit, given on the first page of the letter, is to March 5, 1998, again, after the Houston Meeting had generated a promise that future claims (at least future non-Waters claims) would be covered. Page 109 is from an internal memo within the insurer about the City of Vista claim. Nothing in the memo contravenes the insured’s own pleadings that the request for a defense in the City of Vista case came in 1998.

Filed 3/3/09 Kurdoglayan v. Baghdassarians CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GREG KURDOGLAYAN et al.,

Plaintiffs and Respondents,

v.

AREG BAGHDASSARIANS et al.,

Defendants and Appellants.

B208350

(Los Angeles County

Super. Ct. No. EC046379)

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura A. Matz, Judge. Affirmed.

Esquire Law Firm and Victor Hairapetian for Defendants and Appellants.

Law Offices of Eugene S. Alkana and Eugene S. Alkana for Plaintiffs and Respondents.

___________________________

Plaintiffs Greg Kurdoglayan and SK Vision filed a complaint against defendants alleging claims related to six separate real estate ventures. Defendants Areg Baghdassarians, Angeleno Builders, LLC, and 3810 Ramsdell, LLC moved to compel arbitration of the entire case. The trial court ordered arbitration limited to “the issues arising under the Operating Agreement of 3810 Ramsdell LLC dated January 19, 2006 only.” Baghdassarians appeals from that order. We must decide (1) whether the trial court correctly interpreted the Ramsdell arbitration agreement to encompass only those disputes related to the Ramsdell operating agreement, and (2) whether the trial court correctly found no additional arbitration agreement to encompass any of the remaining disputes. We conclude there was no error and affirm the trial court’s order.

Background

Kurdoglayan filed a complaint against Baghdassarians and other entities asserting claims related to six separate real estate ventures. Although, as Baghdassarians points out, every cause of action except for the seventh is labeled as “Against all defendants,” the substance of each cause of action belies the heading. The first through sixth causes of action relate to four separate real estate ventures, namely Angeleno Builders I, II, III, and V. These causes of action do not mention any other ventures. They are for, in order: (1) fraud, (2) declaratory relief, (3) equitable lien, (4) accounting, (5) constructive trust, and (6) intentional infliction of emotional distress. The seventh cause of action is for intentional interference with economic advantage and relates solely to a North Adams real estate venture. The eighth through tenth causes of action relate to the parties’ Ramsdell real estate venture only. These later causes of action do not mention the Angeleno Builders I, II, III, or V ventures or the North Adams venture. The eighth cause of action is for breach of contract and refers specifically to the written Ramsdell Agreement. The ninth and tenth causes of action allege claims for an accounting and for fraud and are based on the Ramsdell venture only.

Baghdassarians and 3810 Ramsdell, LLC moved to compel arbitration of all claims. In support of the motion, Baghdassarians and 3810 Ramsdell, LLC submitted two declarations from Areg Baghdassarians and one from defendants’ attorney. Areg Baghdassarians attached the following documents to his initial declaration: (1) an executed copy of the 3810 Ramsdell, LLC Operating Agreement (the “Ramsdell Agreement”), (2) an executed copy of the Angeleno Builders, LLC Operating Agreement, and (3) unsigned “Operating Agreements” relating to the Angeleno Builders I, II and III ventures (the “unsigned documents”). In his supplemental declaration, Areg Baghdassarians stated that the following companies had executed Operating Agreements, each of which contained an arbitration clause: 3974 Pennsylvania LLC, 3138 Montrose LLC, 2460 Oswego LLC, and 7223 Apperson LLC. He did not attach or otherwise submit copies of those operating agreements, which presumably would have shown, for example, the parties to the agreements and the terms of any arbitration clauses.

In opposition to the motion, Kurdoglayan submitted a declaration from Greg Kurdoglayan as well as a declaration from their attorney. In his declaration, Greg Kurdoglayan elaborated on the proposed structure of the entities that were to be involved in the separate real estate ventures at issue in the complaint.

The trial court granted the motion to compel arbitration as to the Ramsdell Agreement only. Baghdassarians appeals the trial court’s order, arguing arbitration should be compelled as to all disputes raised by the complaint, not just those related to the Ramsdell Agreement.

Discussion

Standards of Review. When there is no factual dispute as to the existence or language of an arbitration agreement, we must determine “the legal interpretation to be given that language and that is something we do de novo.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.) We review the trial court’s determination as to the existence of an agreement to arbitrate under the substantial evidence standard. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357.)

Arbitration of Claims. Code of Civil Procedure section 1281.2 requires the trial court to order arbitration if the court “determines that an agreement to arbitrate the controversy exists [and certain circumstances not relevant here do not exist].” “This language is mandatory, not precatory.” (Coast Plaza, supra, 83 Cal.App.4th at p. 687.) Conversely, if no valid agreement to arbitrate exists, the court must deny a motion to compel arbitration. Although the law favors arbitration, “[t]here is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) “The guiding principle is simple: ‘A party cannot be compelled to arbitrate a dispute that it has not elected to submit to arbitration.’” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069, quoting County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245.)

The Ramsdell Agreement. There is no dispute that the Ramsdell Agreement contains a valid and enforceable arbitration clause. Rather, the dispute centers on the scope of that arbitration clause. The Ramsdell arbitration clause states: “Any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement as between the Company and a Member, or between or among the Members, shall be settled by arbitration in accordance with the provisions of this Agreement.” This language is clear. The agreement to arbitrate extends to (1) any action “to enforce or interpret” the Ramsdell Agreement and (2) any action “to resolve disputes with respect to [the Ramsdell] Agreement as between the Company and a Member, or between or among the Members.” The trial court correctly compelled arbitration of “the issues arising under the Operating Agreement of 3810 Ramsdell LLC.”

As an initial matter, Baghdassarians appears to misunderstand the trial court’s order. For example, Baghdassarians asserts the trial court “erred when it failed to order plaintiffs’ claims against Angelino Builders, LLC relating to Ramsdell to arbitration.” Elsewhere, Baghdassarians states the trial court compelled “arbitration of all of the nine causes of action involving Ramsdell.” These and similar statements are incorrect. The trial court ordered issues —not causes of action—arising under the Ramsdell Agreement to arbitration. This includes Ramsdell-related claims against Angeleno Builders, LLC, which is a signatory to the Ramsdell Agreement.

To be clear, it is not a question of who must go to arbitration, but what disputes must be arbitrated. The Ramsdell arbitration clause does not extend to disputes with respect to properties or ventures beyond the Ramsdell Agreement. Baghdassarians cannot use the Ramsdell Agreement to bootstrap into arbitration Kurdoglayan’s claims related to separate real estate ventures. Baghdassarians stretches the language of the Ramsdell arbitration clause to include any and all disputes between members to that Agreement, whether or not the dispute is related to the Ramsdell Agreement. Under Baghdassarians’ logic, any member to the Ramsdell Agreement can compel arbitration of any dispute with another member to that agreement. For example, a member could compel arbitration of a dispute arising from a car accident between members, or, in a less extreme example, a member could compel arbitration of a dispute arising from a separate real estate venture with another member. This latter example is what Baghdassarians attempts to do here. We do not agree with such a broad interpretation of the Ramsdell Agreement.

Cases cited by Baghdassarians do not support a different result. For example, Baghdassarians cites Cara’s Notions, Inc. v. Hallmark Cards, Inc. (4th Cir. 1998) 140 F.3d 566, in which the Fourth Circuit reversed an order refusing to compel arbitration. The Cara’s Notions arbitration clause encompassed “‘[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, or any aspects of the relationship between Hallmark and [the plaintiff], or the termination thereof.’” (Id. at p. 568, italics in original, fn. omitted.) Because the Cara’s Notions arbitration clause is much broader than the one at issue here, that case is beside the point. Other courts have distinguished Cara’s Notions for this very reason. (See, e.g., Wachovia Bank, Nat. Ass’n. v. Schmidt (4th Cir. 2006) 445 F.3d 762, 769; Security Watch, Inc. v. Sentinel Systems, Inc. (6th Cir. 1999) 176 F.3d 369, 374, fn. 4.)

The Angeleno Builders, LLC Agreement. The only other signed agreement in the record is the Angeleno Builders, LLC Agreement. Armond Bagdasarian and Areg Baghdassarians are the sole signatories to that agreement.

But, again stretching language beyond logic, Baghdassarians argues that, in paragraph 20 of the complaint, Greg Kurdoglayan has unilaterally made himself a party to the Angeleno Builders, LLC Agreement. Even if the complaint is not a model of precise pleading, we cannot accept this argument. Under Baghdassarians’ logic, when someone wants to arbitrate a claim, that person or entity could simply file a verified document declaring themselves a party to the relevant arbitration agreement. The law does not support this argument. The arbitration provision in the Angeleno Builders, LLC Agreement does not apply here.

The Unsigned Documents. In addition to the Ramsdell Agreement and Angeleno Builders, LLC Agreement, Baghdassarians attached four unexecuted documents to the motion to compel. Standing alone, these unsigned documents are unenforceable. Similarly, they are unhelpful in determining the parties’ intent to arbitrate. Baghdassarians argues the unsigned documents indicate that the parties intended to arbitrate. Without more, however, the fact that the documents are unsigned could just as easily indicate disagreement with the terms (including the arbitration clauses) of the proposed agreements. Baghdassarians fails to demonstrate—through declarations in support of the motion to compel or otherwise—how or why the arbitration provisions in those documents should be enforced. Because Baghdassarians failed to ask the trial court for an evidentiary hearing on these issues, Baghdassarians cannot now ask us to order such a hearing. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) We agree with the trial court that Baghdassarians has not demonstrated the existence of any agreement to arbitrate disputes unrelated to the Ramsdell Agreement.

Our decision is consistent with Marsch v. Williams (1994) 23 Cal.App.4th 250, a case neither side cites. In Marsch, the parties had executed various agreements—the La Jolla agreements and the Horizon agreement—which controlled the operation of separate real estate developments. Only the Horizon agreement contained an arbitration clause. The complaint made reference to both the La Jolla agreements and the Horizon agreement, but sought damages based only on the La Jolla agreements, that is, the agreements without arbitration clauses. The defendant Williams moved to compel arbitration, arguing that “by relying on Williams’s conduct in Horizon to establish portions of his La Jolla case, Marsch’s complaint had its ‘roots in the relationship created by the Horizon [agreement]’ and was controlled by the arbitration clause in that agreement.” (Id. at p. 253.) The court disagreed, noting that the La Jolla agreements and the Horizon agreement “were not closely connected in purpose, did not incorporate one another’s terms, were not executed at the same time, and the breach of [one] did not necessarily lead to the breach of the [other].” (Id. at p. 256.)

Similar to the defendant in Marsch, Baghdassarians argues that, although Kurdoglayan’s claims arise from and relate to various different real estate ventures, some of which do not involve valid arbitration agreements, the claims should all be arbitrated under the Ramsdell arbitration clause because they are “intertwined,” “entangled,” and involve the same parties. But, as the Marsch court held in similar circumstances, when “the parties have separate contractual relationships, which involve separate enterprises and most importantly separate commercial risks, an arbitration clause which governs one contractual relationship cannot be imposed in the other relationship without undermining the parties’ reasonable expectations.” (Marsch v. Williams, supra, 23 Cal.App.4th at p. 256.)

Baghdassarians also argues that arbitration clauses in the unsigned documents should be enforced because Kurdoglayan relies on other portions of those same unsigned documents to support the complaint. Baghdassarians argues that Kurdoglayan cannot reject a portion of an agreement, while simultaneously embracing other portions. We are not persuaded. Kurdoglayan does not specifically rely on or mention the unsigned documents for any claim. In fact, as to the Angeleno Builders I, II, III and V disputes, Kurdoglayan does not assert a breach of contract claim. The only breach of contract claim is based on and relates to the Ramsdell Agreement.

None of Baghdassarians’ remaining arguments changes our analysis. For example, we are not persuaded by arguments based on equitable estoppel or the rights of nonsignatories and third party beneficiaries. Such arguments are only relevant once it is shown that a valid arbitration agreement (1) exists between the parties and (2) encompasses the disputes at issue. Here, the Ramsdell Agreement contains the only valid arbitration agreement between the parties. And, as explained above, that arbitration agreement is limited in scope.

Baghdassarians also argues that tort claims may be arbitrated. While we do not disagree with this point, it does not change our analysis. First, in ordering “the issues arising under the Operating Agreement of 3810 Ramsdell LLC” to arbitration, the trial court did not distinguish between contract and tort claims. The requirement for arbitration here is that the claims be related to the Ramsdell Agreement. Second, to the extent Baghdassarians is using this “torts may be arbitrated” argument to sweep all claims raised in the complaint into arbitration, he cannot do so. As explained above, only those disputes related to the Ramsdell Agreement may be arbitrated.

Finally, in further support of his “torts may be arbitrated” argument, Baghdassarians relies on Segal v. Silberstein (2007) 156 Cal.App.4th 627. Segal does not support Baghdassarians’ position. First, Segal is factually different. In Segal, Division 8 of this Court reversed the trial court’s order denying arbitration “[b]ecause the operating agreements of the parties’ business entities require[d] arbitration.” (Id. at p. 629.) In support of their motion to compel arbitration, defendants in Segal presented three signed agreements, each of which contained an arbitration provision. In contrast, here, Baghdassarians presented multiple unsigned documents, and only one signed agreement that does not cover all the disputes raised by the complaint.

Second, Segal does not address the issue we confront here, namely whether a court may compel arbitration of disputes not related to the agreement in which the arbitration clause is contained. In Segal, the Court addressed (1) the import of language found in the arbitration provisions designating arbitration as a “nonexclusive” dispute resolution process outside of Texas, (2) whether one of the signed agreements applied even though the entity created by that agreement was not a party to the lawsuit, (3) whether a separately pending action involving one of the Segal plaintiffs barred arbitration of the Segal claims under Code of Civil Procedure section 1281.2(c), and (4) whether that plaintiff had waived his right to arbitration by appearing in the other action. Segal v. Silberstein, supra, 156 Cal.App.4th at p. 632.) The Court’s analysis of those issues does not inform our decision here.

Disposition

The Ramsdell Agreement contains the only enforceable arbitration agreement between the parties. That agreement requires arbitration of “disputes with respect to [the Ramsdell] Agreement.” The Ramsdell arbitration agreement does not extend to other disputes between the parties. The record does not reveal evidence of any other arbitration

agreement between the parties. Accordingly, we affirm the trial court’s order compelling arbitration of disputes relating to the Ramsdell Agreement only.

NOT TO BE PUBLISHED.

BAUER, J.*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

Filed 3/3/09 P. v. Ruiz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE JESSIE RUIZ,

Defendant and Appellant.

H031728

(Santa Clara County

Super. Ct. No. CC513151)

I. STATEMENT OF THE CASE

A jury convicted defendant Joe Jessie Ruiz of rape and five counts of committing a lewd acts on a minor under 14 years old by force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person and further found that defendant committed the acts against more than one victim and had a prior conviction for lewd conduct that qualified as a strike. (Pen. Code, §§ 261, subd. (a)(2), 288, subds. (a) and (b)(1), 667.61, subds. (a), (b), (d), and (e), 1170.12.) The court imposed a total sentence of 300 years, giving him presentence custody credit for 630 days.

On appeal from the judgment, defendant claims that (1) there is insufficient evidence of force, duress, or fear to support three of the lewd conduct convictions; (2) the court misinstructed the jury on the element of fear in connection with all counts of lewd conduct, and (3) the court’s instruction on reasonable doubt was constitutionally defective.

We find no merit to these claims and affirm the judgment.

II. FACTS

Defendant is the grandfather of his two victims, who called him “Papa.” He was considered the center of the family.

Victim 1 testified that one day, when she was eight years old and alone with defendant, he called her over, exposed himself, took her hand, put it on his penis, and, holding it there, masturbated. She cried and asked him to stop, but he told her to be quiet and continued using her hand. He then picked her up, put her on his lap, and penetrated her vagina. It hurt, and she was scared. She cried and asked him to stop, but he told her to be quiet and continued. When they heard Victim 1’s grandmother’s car in the driveway, defendant put her down and warned her not to say anything or else she would get into trouble. She stayed close to her grandmother the rest of the day because she was afraid of defendant.

On another occasion when Victim 1 was alone with defendant, he exposed himself, grabbed her by the head, and pushed her mouth onto his penis. She cried, and he told her to be quiet. She tried to move her mouth away, but he overcame her resistance. Eventually, she was able to get free, ran into the bathroom, and locked the door. She stayed there until her grandmother came home.

Victim 1 testified that defendant raped, digitally penetrated, and forced her to masturbate and orally copulate him on other occasions, but she had tried to forget these incidents and could not remember any other specific details. Throughout this period, she did not tell anyone about the molestation and was afraid of defendant.

When Victim 1 was around 14 years old and her family and grandparents were living together, defendant would grab her as she walked by him and touch her buttocks and genital area. And on numerous occasions, he would stare at her and masturbate. Victim 1 was still afraid of him and afraid to tell anyone.

Victim 2 testified that one night when she was 12 years old, defendant came up to her, kissed her on the lips, and tried to force his tongue into her mouth. She was scared and kept her mouth shut, but he continued trying. Eventually, he left. However, he returned a short time later and tried again. On another occasion, she was walking by him, and he grabbed her, and fondled her chest.

Victim 2 further testified that once, when she was 13 years old, she took a shower and, wrapped in a towel, went into another room to change. Defendant followed her, opened her towel, fondled her vagina, and then digitally penetrated her. She was afraid he would hurt her and did not resist. He stopped when she said Victim 1 was coming. Later he told her again not to say anything and offered to pay for her silence with money or gifts.

In 2005, when Victim 1 was 18 years old, she reluctantly revealed to her father generally what had happened. She was still afraid of what defendant might say or do and wondered whether anyone would believe her. Thereafter, she disclosed what had happened to a therapist, and in October 2005, she told the police.

In December 2005, Victim 2 generally revealed the molestation to her father. With Victim 1 present, she later disclosed it to the police. Victim 1 then made a recorded pretext call to defendant. She told him that she was angry at him because of what he had done to her and Victim 2 and pressed him to explain why he touched and grabbed her, exposed himself, and made her do things so many times. Defendant apologized, explaining that it happened because he got the “urge.” She was also angry at him for touching Victim 2 and asked if he was sorry for that. He said he was.

The prosecution also introduced evidence that in 1982, defendant admitted to police that he had repeatedly molested both of his daughters and was convicted of lewd conduct.

III. SUFFICIENCY OF THE EVIDENCE

Defendant contends there was insufficient evidence to establish that two of the charges of lewd conduct involving Victim 1 and one involving Victim 2 were accomplished by force, violence, duress, menace or fear of immediate and unlawful bodily injury.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Osband (1996) 13 Cal.4th 622, 690; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

In the context of a prosecution under section 288, subdivision (b)(1), “ ‘ “force” ’ ” refers only to physical force, and it must be “ ‘ “substantially different from or substantially greater than the force needed to accomplish the act itself.” ’ ” (People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People v. Pitmon (1985) 170 Cal.App.3d 38, 46; CALCRIM No. 1111.)

“[D]uress” means “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been peformed or, (2) acquiesce in an act to which one otherwise would no have submitted.” (People v. Pitmon, supra, 170 Cal.App.3d at p. 50, fn. omitted; accord, People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1009-1010; People v. Cochran (2002) 103 Cal.App.4th 8, 13; CALCRIM No. 1111.)

“ ‘[F]ear’ ” means “ ‘(1) “A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension” [citation] and (2) “Extreme reverence or awe, as toward a supreme power” [citation].’ ” (People v. Cardenas, supra, 21 Cal.App.4th at pp. 939-940, quoting People v. Montero (1986) 185 Cal.App.3d 415, 425.) And for the purpose of section 288, subdivision (b), the commission of a lewd act by fear means that the minor is actually and reasonably afraid of immediate bodily injury or is actually but unreasonably afraid, and the defendant knows of the fear and takes advantage of it. (CALCRIM No. 1111; People v. Cardenas, supra, 21 Cal.App.4th at p. 940.)

In discussing “duress,” this court in People v. Schulz (1992) 2 Cal.App.4th 999 (Schulz), explained that “[p]hysical control can create ‘duress’ without constituting ‘force.’ ‘Duress’ would be redundant in the cited statutes if its meaning were no different than ‘force,’ ‘violence,’ ‘menace,’ or ‘fear of immediate and unlawful bodily injury.’ [Citation.] . . . [Citation.] . . . [citation] [D]uress involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ [are] relevant to the existence of duress.” (Id. at p. 1005.)

In Shultz, the defendant lived with his nine-year-old niece. One night, he woke her up “by grabbing her arm, cornered her while she cried, held her arm, and touched her breasts and vaginal area.” (Schulz, supra, 2 Cal.App.4th at p. 1004.) In finding the evidence sufficient to establish “duress,” the court explained, “On this occasion [the defendant] took advantage not only of his psychological dominance as an adult authority figure, but also of his physical dominance to overcome her resistance to molestation. (Id. at p. 1005.)

In People v. Senior (1992) 3 Cal.App.4th 765 (Senior), the defendant threatened to hit his daughter if she resisted his molestation. During later molestations, he restrained her. This court found that the initial threat together with the restraint was sufficient to establish that the latter acts were accomplished by duress. (Id. at pp. 775-776.)

In People v. Cochran, supra, 103 Cal.App.4th 8, the court explained that “[a] threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent.” (Id. at p. 15.)

On the other hand, in People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), this court found the evidence insufficient to establish duress. There, the defendant came in to the victim’s bedroom, sat on the bed, pulled her pants down, rubbed her breasts and vagina, and attempted to have intercourse. It was uncomfortable, and the minor was frightened and scared. However, she did not resist, and they did not speak to each other. (Id. at pp 1292-1293)

In Espinoza, we agreed with the analysis in Schultz but found it, Senior, and a number of other cases (People v. Sanchez (1989) 208 Cal.App.3d 721, People v. Hecker (1990) 219 Cal.App.3d 1238) to be factually distinguishable. (Espinoza, supra, 95 Cal.App.4th at pp. 1320-1321.) We reasoned that duress could not be based solely on the fact that the defendant was the victim’s father, he was bigger, her intelligence was limited, and she was afraid. “What is missing here is the ‘ “direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” ’ [Citation.] Duress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat . . . ’ [Citation.] No evidence was adduced that defendant’s lewd act and attempt at intercourse were accompanied by any ‘direct or implied threat’ of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation.” (Id. at p. 1321.)

With these cases in mind, we turn to the facts in this case, focusing first on the acts against Victim 1 and then those against Victim 2.

During the first incident defendant grabbed Victim 1’s hand, held it on his penis, and used it to masturbate himself. He then raped her. When it was over, he warned that she would get into trouble if she told anyone. During the second incident, he pulled her head and mouth to his penis. In both incidents defendant forcibly overcame either her physical and/or verbal efforts to resist. We note that V testified that she was afraid of defendant, feared that he would harm her, and afraid of what he might do. Finally, defendant was older, bigger, and stronger than Victim 1; he was her grandfather and occupied a position of authority and importance in the family; and all of his acts took place inside the home when no one else was around.

In our view, a jury reasonably could find that, taken together, these particular acts and the surrounding circumstances created an implied threat that he might molest Victim 1 when they were alone and use force to overcome her resistance, inflict pain, if not physical harm, and injury, and cause adverse consequences or hardship—i.e., “trouble”—if she did not acquiesce to him. (See People v. Veale (2008) 160 Cal.App.4th 40, 50-51 [duress does not require a threatening action or statement but can be implied].) Based on this finding, the jury reasonably could conclude beyond a reasonable doubt that this implied threat facilitated and enabled defendant to commit his subsequent acts against Victim 1a—i.e., the repeated acts of rape, oral copulations, digital penetration, fondling, and masturbation—and, therefore, that were accomplished by duress. (E.g., People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16; People v. Senior, supra, 3 Cal.App.4th at p. 775-776.)

Defendant’s reliance on Espinoza, supra, 95 Cal.App.4th 1287 is misplaced. There, the defendant never used force against the victim, caused her pain, overcame her verbal or physical resistance, or threatened adverse consequences if she did not stay silent about his conduct, all of which occurred in this case. Thus, Espinoza is distinguishable.

Concerning Victim 2, the prosecution relied on the theory that defendant committed the act of digital penetration by fear.

Victim 2 testified that twice defendant forcibly kissed her and tried to push his tongue into her mouth. He scared her, and she resisted. On another occasion, he grabbed and fondled her. Then one day, after she had showered and wrapped herself in a towel, defendant followed, opened her towel, and fondled and digitally penetrated her. She testified that he did not say anything, but she did not push him away because she was afraid he might hurt her.

In our view, the evidence of defendant’s relationship to Victim 2, his position in the family, his prior forcible effort to stick his tongue into her mouth while kissing her, her vulnerability alone and wrapped in a towel, and her fear at that time that he would hurt her supports a finding beyond a reasonable doubt that defendant accomplished the digital penetration by fear of immediate unlawful bodily injury.

In sum, therefore, we reject defendant’s claim there was insufficient evidence of force, duress, or fear to support his convictions under section 288, subdivision (b)(1).

IV. INSTRUCTION ON FEAR

Defendant contends that the court misinstructed the jury on fear.

The court gave CALCRIM No. 1111, which, as given, told jurors that to convict defendant of lewd conduct by force, violence, duress, etc., the prosecution had to prove that “in committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else”; “[a]n act is accomplished by fear if the child is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.” (Italics added.)

Defendant acknowledges that the first part of the instruction correctly informs jurors that the child must fear immediate and unlawful bodily injury. However, he argues that the second part negates that requirement and allowed jurors to convict him based on a finding that she simply afraid of something, anything, and not just immediate bodily injury.

In analyzing a claim of inadequate instructions, we do not focus on a single instruction but instead review the entire charge to the jury in light of the evidence and the arguments of counsel to determine whether there is a “reasonable likelihood” that the jury understood the instructions in the manner proposed by the defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)

Defendant reads the explanation of “fear” in isolation from the main part of the instruction it was meant to supplement. However, the jury was instructed to consider the instructions together. (CALCRIM No. 200.) The main part of the instruction established the elements that the prosecution must prove and simply, directly, and unequivocally explained that the child must fear immediate and unlawful bodily injury. The purpose of challenged part of the instruction was not to re-explain what the basis of or reason for the child’s fear must be; rather it was to explain a different aspect of the fear element: the child’s fear must be actual and reasonable; and if it is actual but not reasonable, then the defendant must knowingly exploit that fear. Thus, when considered as a whole, the two parts of the court’s instruction properly and correctly informed jurors that the prosecution had to prove that the child actually and reasonably feared immediate bodily injury; or actually and unreasonably feared such injury, and defendant knew and exploited that fear.

Defendant argues that the prosecution exacerbated the instructional deficiency during opening argument by repeatedly claiming that the evidence established that the minors were afraid without saying that they were afraid of immediate bodily injury. However, we presume the prosecutor understood the elements of the offense and was simply using verbal shorthand rather than repeat the entire statutory phrase “fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b)(1).) First, the prosecutor elsewhere expressly referred to the instructional requirement that a minor be afraid of immediate bodily injury. And second, defense counsel never objected or sought to have the court clarify its instructions or some possible ambiguity the prosecutor’s argument might be causing concerning the fear element.

Last, defendant points out that the corresponding CALJIC instruction includes what he claims is missing from the CALCRIM instruction. CALJIC No. 10.42 not only explains that the act must be accomplished by, among other things, fear of immediate and unlawful bodily injury but also states that “the fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances, or if unreasonable, the perpetrator must have known of the victim’s fear and taken advantage of it.” (Italics added.)

However, that the CALJIC adds the italicized language does not suggest, let alone establish, that its absence from the CALCRIM instruction renders that instruction erroneous or even ambiguous.

In sum, we do not find a reasonable likelihood that the jurors thought they could convict defendant based on a finding that the victims had some generalized, unspecific fear of something or did convict him under that erroneous impression. Rather, the CALCRIM instruction correctly stated—and we find that the jurors would have understood—and did understand, that the prosecution had the burden to prove that the act was accomplished by, among other things, fear of immediate and unlawful bodily injury to the child or someone else and that that fear had to be either actual and reasonable or actual and unreasonable; and, if it was actual and unreasonable, then the prosecution had to also prove that defendant knew of the child’s fear and exploited it.

V. THE REASONABLE DOUBT INSTRUCTION

Defendant contends that CALCRIM No. 220, which explains the prosecution’s burden to prove guilt beyond a reasonable doubt is, constitutionally defective.

In pertinent part, the instructions states, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the trial.” (CALCRIM No. 220, italics added.)

Defendant argues that the italicized language erroneously requires “the jury to ‘compare’ the evidence ‘received’ at trial. The jury could have only interpreted this as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense. This language impermissibly imposed a burden on appellant to prove his innocence.” In other words, by requiring jurors to compare the evidence presented by both sides, the instruction implied that the defense had the burden to present evidence and thereby impermissibly shifted part of the prosecution’s burden to the defense.

In People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118 (Garelick), this court rejected the same argument, noting that similar constitutional challenges had also been rejected in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154 (Hernández Ríos); People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); and People v. Flores (2007) 153 Cal.App.4th 1088 (Flores).

We noted that in Hernández Ríos, the court observed that CALJIC No. 2.90 concerning reasonable doubt contained similar language referring to the “ ‘comparison and consideration of all the evidence,’ ” and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17. (Garelick, supra, 161 Cal.App.4th at p. 1118; Hernández Ríos, supra, 151 Cal.App.4th at p. 1157.) We also reiterated the observation in Hernández Ríos that “ ‘CALCRIM No. 220 uses verbs requiring the jury to “compare and consider all the evidence that was received throughout the entire trial.” CALJIC No. 2.90 uses nouns requiring “the entire comparison and consideration of all the evidence” by the jury.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Hernández Ríos, supra, 151 Cal.App.4th at p. 1157, italics in Hernández Ríos.) We agreed with the Hernández Ríos court’s conclusion “that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence” and its rejection of “the defendant’s claim that the instruction shifted the burden of proof.” (Garelick, supra, 161 Cal.App.4th at p. 1118.)

We further noted that in Westbrooks, the court rejected the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in determining his guilt. We explained that the Westbrooks court held that the “sentence in question ‘merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Westbrooks, supra, 151 Cal.App.4th at p. 1509.) We also agreed with the Westbrooks court that “it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused’s guilt.” (Garelick, supra, 161 Cal.App.4th at p. 1118; Westbrooks, supra, 151 Cal.App.4th at p. 1510.)

Similarly, we noted that in Flores, the court said that “ ‘[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Flores, supra, 153 Cal.App.4th at p. 1093.)

Defendant does not convince us that our analysis in Garelick or the analyses in Hernández Ríos, Westbrook, and Flores are wrong. Accordingly, we again reject his claim.

VI. DISPOSITION

The judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

Filed 3/3/09 P. v. Crisante CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

GONZALO CRISANTE,

Defendant and Appellant.

G039797

(Super. Ct. No. 06NF3323)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant contends the court erred when it permitted admission of evidence of uncharged crimes and when it instructed the jury with CALCRIM No. 1191. We disagree with his contentions and affirm.

I

FACTS

A jury found defendant Gonzalo Crisante guilty of continuous sexual abuse as charged in count one of the information, and returned a true finding that he was convicted in California of a violation of section 288, subdivision (a) of the Penal Code pursuant to Penal Code section 1203.066, subdivision (a)(5), habitual sex offender. The court sentenced defendant to state prison for 51 years to life.

The parties agreed to two stipulations which the court read to the jury. The first reads: “Both the People and the defendant stipulate that the defendant was arrested on the warrant that Buena Park Detective Jerry Von Gries testified that he requested be issued by a superior court judge here in Orange County. The warrant was served and the defendant was taken into custody by the Calexico Police Department on February 19, 2006, and subsequently transported to Orange County.”

The second stipulation reads: “The defendant, Gonzalo Crisante, who is also known as Gonzalo Luna, was prosecuted in Los Angeles County, California, for lewd and lascivious acts with a child under 14 years under Penal Code section 288(a), under case number BA10462, the named victim in that case was [A.], and the conduct occurred in 1993 and 1994 in Los Angeles. The defendant was convicted of those charges and sentenced to state prison.”

D. was born in 1998. When she testified at trial, she was eight years old. When defendant lived with D., her mother and her brother, she called him “Poppy.” During questioning, the prosecutor asked D. to point to the place on a small stuffed bear when she was asked: “Now, where was Poppy touching you; what part of your body?” D. placed “her finger between the legs of the bear toward the front.”

D. said defendant touched her more than one time, but she did not remember the first time or the last time. She described one time when her mother called her to eat while defendant was touching her. On that occasion, defendant “put his hand inside [D.’s] clothes.”

D. remembered another time when her mother and her brother left to donate some clothes and get a haircut for her brother, she was left with defendant. She and defendant were watching television together, and defendant touched D. in her “private part.”

She also described another time when she and defendant were in her mother’s room, and “he was touching me, in the same spot . . . .” Defendant also kissed her on her mouth. When she said defendant took her “hand and put it somewhere” on his body, she pointed between the legs of a larger bear.

Van Nguyen Greco is a pediatrician with the Child Abuse Services Team. Nguyen said it was pertinent that D. “had severe constipation, so that about six months prior to my examination she actually required some medical intervention to help evacuate her bowels.” Nguyen was given the following information about D. from the police: “The boxes were checked that there was genital or vaginal contact with penetration with a finger, and also of the anus. And there was some fondling and kissing as well. There was a narrative about the child describing that it felt cold, and was showing that the whole hand was going in, or touching her. And also touching of her breasts under her clothes.” After examining D., Nguyen concluded the findings were consistent with that history.

A. is defendant’s daughter. In 1993, when she was 12 years old and asleep, defendant “would touch me, like my breasts and my private areas.” She said he never entered her, but that “he will be in my part, private part, but he, he never introduced it.”

Defendant contends the court erred and his constitutional rights were violated when the court allowed introduction of his prior sexual offense. He also contends the court misinstructed with jury with CALCRIM No. 1191.

II

DISCUSSION

Prior bad acts

Defendant argues: “The admission of the prior sexual offense evidence violated Evidence Code section 352, as well as [defendant’s] constitutional rights to due process and a fair trial.”

The prosecution moved for admission of not only the prior Los Angeles conviction for defendant’s acts against A., but for admission of defendant’s acts against A. starting when she was seven years old, years before the family moved to Los Angeles in 1993. The trial court heard extensive argument from counsel regarding evidence of defendant’s prior acts to A. The defense argued undue prejudice because A. is defendant’s daughter and D. is not.

The court concluded: “As far as the argument yesterday that you made, and spent a lot of time on, indicating that the facts of the prior case are sufficiently dissimilar to the facts of the charged offenses, including the age, and what you are arguing this morning, that the prior offense involved a biological daughter . . . to the court [the situation in the charged crimes] is more analogous to a stepdaughter type of a relationship. [] . . . [] . . . I don’t think the remoteness argument is too persuasive, because the defendant served a 10-year prison term after he was convicted of those crimes in ’95. And that’s not a long time from there until the day of this alleged offense, the beginning of October of ’04. [] The degree of certainty of its commission and the likelihood of confusing or misleading or distracting the jurors from their main inquiry, the court feels is minimized, along with the fact of the burden for the defense in defending against the uncharged offenses, because there was a conviction of the offenses, so that is minimizing the certainty argument, or the fact that the defense would have to essentially attack the prior uncharged offense. [] . . . [] I am not convinced with the defense argument, or I am not persuaded, I should say, that they are dissimilar. The Mexico offense does involve the same age, when she was six or seven, however, for reasons that the court is going to explain in a moment, I am not going to permit you to question the victim of the prior offense on the circumstances surrounding the Mexico incident when she was six or seven. [] The court feels after weighing all the factors and looking at 352, that that would be unduly prejudicial, and I think by excluding that and allowing the ’94 incidents, it is a less prejudicial alternative. . . . [] The fact that there was no conviction in that case in Mexico, there is no other corroboration, so to speak, in that case, there is not a lot of things that in the court’s eyes, in analyzing it, would take away from any distraction or confusion for the jury. It think it would lead to a lot of court time spent on cross-examination of those issues, which I think begs for the possibility of distraction or confusion . . . . [] . . . [] So although certainly the evidence is prejudicial, I mean all 1108 evidence is prejudicial. Like I said yesterday, there is no denying that. But when I look at it, I analyze it under the appropriate case law and the factors that I am supposed to analyze it under, and in looking at the facts and all the circumstances in this case, and conducting a 352 analysis, the court feels that the probative value is high of the prior offense, and it is not outweighed by any danger of substantial prejudice. [] So you will be permitted to bring in evidence of the 1108 evidence concerning the Los Angeles incident, the facts surrounding that incident.”

In a prosecution for sexual crimes Evidence Code section 1108 specifically allows the admission of a defendant’s other sexual offenses as long as the evidence is not inadmissible under section 352. Penal Code section 288 is specifically enumerated as a crime to which section 1108 applies. (Evid. Code , § 1108, subd. (d)(1)(A).) “‘Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.] In fact, it is precisely because such evidence is so highly probative that traditionally it has been subject to exclusion as improper character evidence in criminal trials. [Citation.] Recently, however, the ‘Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. . . .’ [Citations.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 403.)

Evidence Code section 352 gives the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.) For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant” ‘without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

People v. Harris (1998) 60 Cal.App.4th 727 (Harris), offers some useful guidance in evaluating a case under Evidence Code section 1108. The court suggested the following factors were relevant to evaluating the admissibility of prior sex crimes under section 1108: the inflammatory nature of the evidence, the probability of confusion, the remoteness in time of the uncharged acts to the charged crime, the consumption of time, and the probative value of the evidence, especially as to the degree of similarity. (Id. at pp. 737-740.)

Here the trial judge carefully considered the inflammatory nature of the prior acts, the probability of confusion, the consumption of time, the remoteness in time of the uncharged acts as well as their probative value. The court admitted some of the proffered evidence and excluded some of it. Under the circumstances in this record, we cannot conclude the court abused its discretion.

CALCRIM No. 1191

Defendant next argues his judgment must be reversed because the trial court erred when it instructed the jury pursuant to CALCRIM No. 1191. He says the instruction was in violation of his due process.

The court instructed the jury as follows: “The People presented evidence that the defendant committed the crime of P.C. 288(a) lewd act on a child under 14 years of age that was not charged in this case. [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden of proof, you must disregard this evidence entirely. [] If you decide the defendant committed the uncharged offense, you may but are not required to conclude form the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit continuous sexual abuse of a child under 14 years of age as charged here. [] If you conclude the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all other evidence. It is not sufficient by itself to prove the defendant is guilty of continuous sexual abuse of a child under 14 years. The People must still prove each element of that charge beyond a reasonable doubt. [] Do not consider that evidence for any other purpose except for the limited purpose of determining the defendant’s credibility.”

For the same reasons the same contention raised by defendant was rejected in (People v. Johnson (2008) 164 Cal.App.4th 731, 739-740; People v. Reyes (2008) 160 Cal.App.4th 246, 253 and People v. Schnabel (2007) 150 Cal.App.4th 83, 87, we also reject it. Defendant acknowledges the holding in People v. Reliford (2003) 29 Cal.4th 1007, regarding CALCRIM No. 1191’s predecessor instruction “likely precludes this claim in California’s courts,” but says “for the purpose of preserving the claim for federal review” he makes his argument here.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Filed 3/3/09 P. v. Williams Ca4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON CHARLES WILLIAMS,

Defendant and Appellant.

E046385

(Super.Ct.No. FBA800406)

OPINION

APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.

Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

STATEMENT OF THE CASE

Defendant was charged by felony complaint filed June 23, 2008, by the District Attorney of San Bernardino. Defendant was charged with failing to register upon release for custody in violation of Penal Code section 290.015, subdivision (a). The complaint also alleged that defendant had two prior convictions for failing to register, and that he served two prior prison terms within the meaning of section 667.5 for those convictions. The complaint further alleged that defendant suffered a prior strike conviction within the meaning of sections 667, subdivision (b) through (i) and 1170.12, subdivsion (a), for a 1984 conviction of a violation of section 288, subdivision (b).

On July 7, 2008, defendant was held to answer to the charge and special allegations at the conclusion of the preliminary hearing. Thereafter, pursuant to section 1192.7, defendant, represented by counsel, entered into a negotiated disposition in which he pled guilty and admitted the strike prior. In accordance with the negotiated disposition, the remaining allegations were stricken on motion of the district attorney and in the interests of justice, and defendant was sentenced to a stipulated term of 2 years 8 months and awarded the appropriate custody credits.

On August 14, 2008, defendant filed a timely amended notice of appeal.

STATEMENT OF FACTS

Barstow Police Officer Adam Cortinas contacted defendant on June 19, 2008. The officer confirmed with the dispatch operator that defendant was “not in compliance.” Over defense objections of hearsay, the officer testified that he asked defendant if he was aware that he had failed to register, and defendant indicated he was released from custody on June 8, 2008 and he knew he did not register. Over continued objections of hearsay and undue prejudice (Evid. Code, § 352), the officer testified that he spoke with California Department of Corrections and Rehabilitation (CDCR) Parole Agent Kiko Martinez, who informed him that defendant was released from the custody of CDCR on June 8, 2008.

Over hearsay objections, the prosecution introduced Exhibit 1, a certified copy of defendant’s California Law Enforcement Tracking System (CLETS) printout and Exhibit 2, a certified copy of defendant’s sexual offender registration history.

The court denied defendant’s counsel’s motion to strike all of defendant’s statements, and overruled the objection that there was no evidence to establish the corpus of the offense. The court also denied counsel’s motion to exclude the hearsay statements of Kiko Martinez.

Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.

We have now concluded our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

RICHLI

J.

GAUT

J.

Filed 3/3/09 P. v. Bunch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DRAFTON LARNELL BUNCH,

Defendant and Appellant.

D052519

(Super. Ct. No. SCD200878)

APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Reversed.

Police arrested defendant Drafton Larnell Bunch in an undercover drug operation. A jury convicted him of selling cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possessing cocaine base for sale (§ 11351.5; count 2). The 10-year sentence imposed by the court included two three-year enhancements based on Bunch’s admission in bifurcated, nonjury proceedings that he had “those prior convictions” as alleged in the information. In Bunch’s first appeal, this court vacated the sentence, concluding that there was insufficient evidence to support the court’s finding that the specific enhancement allegations were true. (People v. Bunch (Oct. 24, 2007, D050138) [nonpub. opn.].)

On remand, the trial court conducted a bench trial to prove the prior convictions. After hearing the evidence and reviewing the documents, the court found that the two section 11370.2, subdivision (a) allegations were “proven and true.” Once again, it sentenced Bunch to 10 years in prison: the middle term of four years in count 1; the middle term of four years in count 2, stayed pursuant to Penal Code section 654; and two three-year enhancements pursuant to section 11370.2.

In his second appeal, Bunch argues the court erred in failing to obtain a waiver of jury trial on the prior drug-related convictions before making its true findings and resentencing him on the section 11370.2 enhancements. We agree that the court erred in conducting the bench trial without a jury waiver. Accordingly, we reverse the true findings, vacate the sentence, and remand for a second trial on the section 11370.2, subdivision (a) priors.

FACTUAL AND PROCEDURAL BACKGROUND

The court opened the remand proceedings by stating: “We are here for the bench trial to prove the prior allegations.” The prosecutor responded, “Yes, Your Honor,” and defense counsel said, “That’s correct.” The court did not request a new waiver of jury trial on the priors.

The information alleged that prior to the commission of the offenses alleged in counts 1 and 2, Bunch was convicted of three offenses within the meaning of section 11370.2, subdivision (a): (1) violation of section 11352 in case No. SCD170999; (2) violation of section 11351.5 in case No. SCD170999; and (3) violation of section 11352 in case No. SCD157651. The prosecution introduced 13 pages of documents relating to case No. SCD170999 and 30 pages of documents relating to case No. SCD157651. Included in each set of documents was the information, verdict, and abstract of judgment. The prosecution also introduced copies of fingerprint cards, Bunch’s chronological movement history, and a photograph provided by the Department of Corrections and Rehabilitation.

Defense counsel did not object to admission of the documents offered by the prosecution. Nor did he cross-examine the prosecution’s fingerprint expert who testified that Bunch was the person identified in the court and prison documents. The defense rested without introducing any evidence to challenge the prosecution’s case. The court issued its true findings and immediately sentenced Bunch to the 10-year term.

DISCUSSION

Bunch argues he is entitled to a new sentencing hearing because on remand the court made true findings on the section 11370.2 allegations without obtaining his waiver of jury trial. Bunch contends that denial of the right to jury trial constitutes structural error and is not subject to harmless error analysis on appeal. We agree that Bunch is entitled to remand for a new trial on the priors.

The specific issue in this case is whether waiver of a jury in his first trial on the prior conviction allegations carried over to his new trial on the priors after this court reversed the true findings and remanded on grounds of insufficient evidence. Two published cases address the issue.

The first case, People v. Solis (1998) 66 Cal.App.4th 62 (Solis), holds that a jury trial waiver applies only to the first trial and the trial court must obtain a new waiver before proceeding without a jury on remand. (Id. at p. 67.) In Solis, the defendant waived the right to a jury and was convicted of drug-related offenses in his first trial. On appeal, the court found insufficient probable cause to support the search warrant used to obtain evidence relating to some of the charged offenses. It concluded that the court should have granted the defendant’s suppression motion as to those offenses. The appellate court remanded the case to allow the trial court to reconsider the defendant’s motion to suppress evidence collected in a separate search related to other charged offenses. (Id. at p. 64.) The trial court reconsidered the matter, ignoring defense counsel’s suggestion that a new waiver was required. (Id. at p. 65.) It denied the suppression motion and found the defendant guilty of the remaining offenses. (Ibid.)

In the second appeal, the Solis court concluded that the defendant’s first jury waiver applied only to his first trial. It reversed the convictions resulting from defendant’s second trial on grounds they were obtained in violation of his constitutional rights. (Solis, supra, 66 Cal.App.4th at p. 67.) Relying on federal authority, the Solis court highlighted two well-established principles. First, ” ‘ “[t]he right of trial by jury in cases at law, whether in a civil or criminal case, is a high and sacred constitutional right in Anglo-Saxon jurisprudence, and is expressly guaranteed by the United States Constitution.” ‘ ” (Id. at pp. 65-66.) Second, “[a] stipulation for the waiver of such a right should . . . be strictly construed in favor of the preservation of the right.” (Id. at p. 66.) The court reasoned that a defendant waiving his right to jury trial in one case could not be presumed to be aware of a possible later trial to which his waiver would apply. Indeed, it would be reasonable to suppose that such a defendant, facing a second trial, would not submit the matter to the same judge who convicted him in the first for reasons of possible bias. (Id. at pp. 66-67.)

The second case, People v. Smith (2005) 132 Cal.App.4th 924 (Smith), distinguishes Solis and holds that a jury waiver does carry over if the second trial results from a mistrial rather than “appellate intervention.” (Id. at pp. 933, 936.) The Smith court explained that its conclusion flowed “from rational presumptions about the scope of defendant’s consent to waive his jury trial rights. Defendant did not consent to the mere commencement of a court trial in this case. He consented to have the court hear and decide the entire case. The mistrial interrupted the proceeding to which defendant had already agreed. Unlike other circumstances in which it might be argued that the defendant did not consent to a second court trial, the completion of a court trial following a mistrial in no manner exceeds the scope of defendant’s original consent.” (Id. at p. 936.) The appellate court noted that defendant took no action to withdraw his consent to a court trial until his appeal. It found that defendant’s silence in open court despite defense counsel’s acknowledgement of the issue was “strong evidence that [defendant] in fact reconsidered his jury trial waiver and reached an informed and voluntary decision not to withdraw it before the second trial.” (Id. at p. 935.)

Here, as in Solis, Bunch’s second trial on the section 11370.2 drug-related priors occurred after “appellate intervention” and remand. As Smith explains, Bunch’s earlier consent to court trial applied only to the first trial, which concluded when the court made its true findings and sentenced Bunch. Moreover, the trial court’s jurisdiction over the first trial ended when Bunch filed his notice of appeal. Thus, at the time of remand for a second trial on the priors, Bunch’s original waiver was not in place for him to withdraw. We therefore conclude that the court erred in retrying Bunch on the drug-related priors without obtaining his waiver of jury trial.

The People argue that the error in this case is subject to harmless error analysis because: (1) the right to jury trial on prior convictions is statutory (People v. Mosby (2004) 33 Cal.4th 353, 360); and (2) denial of the right to jury trial on prior convictions is not among the limited circumstances amounting to structural error (see Washington v. Recuenco (2006) 548 U.S. 212, 218-219). The People contend that the error was harmless because “[t]he plethora of documentary evidence produced by [them] at the bench trial in this case was presumably highly reliable — and amounted to overwhelming — evidence of the truth of the prior conviction and enhancement allegations.” Assuming that denial of the right to jury trial is subject to analysis under Chapman v. California (1967) 386 U.S. 18, 26, we reject the claim that the trial court’s error was harmless beyond a reasonable doubt. As the court observed in Solis, it is reasonable to suppose that if given the choice, a defendant facing a second trial on remand would not submit the matter to the same judge who ruled against him in the first trial. (Solis, supra, 66 Cal.App.4th at pp. 66-67.) Whether Bunch would have preferred to have a jury decide the truth of the section 11370.2 allegations in the circumstances of this case was a matter for him to decide. The trial court deprived him of that right.

DISPOSITION

The true findings on the section 11370.2, subdivision (a) allegations are reversed, the sentence vacated, and the cause remanded for a new trial on the priors and for resentencing. The judgment is affirmed in all other respects.

MCCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O’ROURKE, J.

Filed 3/3/09 Hance v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DANNY G. HANCE,

Cross-complainant and Respondent,

v.

GREGORY SMITH,

Cross-defendant and Appellant.

D051917

(Super. Ct. No. GIC847788)

APPEAL from an order of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Affirmed.

Appellant Gregory Smith appeals from an order denying his motion to dissolve a civil injunction against harassment (Code Civ. Proc., § 527.6). Smith’s claims on appeal rest on the assertion that because there is an unfinished contractual arbitration between the parties, the superior court (and this court as well) had no authority to act. Specifically, he contends (1) the superior court judge who set the case for trial and issued the injunction was without jurisdiction to issue orders in the case pending the outcome of arbitration; (2) Hance had no standing to seek judicial relief; and (3) any trial or appellate court involvement in the case, including on his motion to dissolve the injunction, is limited to reviewing the arbitration award. Hance seeks sanctions and an award of attorney fees and costs. We affirm the order and, though we deny Hance’s request for sanctions, conclude he is entitled to attorney fees and costs as explained below.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this matter. In May 2007, we upheld a three-year restraining order issued in favor of respondent Danny Hance and his family and against appellant and his brother Steven Smith (collectively the Smiths, separately for clarity Gregory and Steven), barring the Smiths from harassing, attacking, striking, threatening, assaulting, hitting, following or stalking the Hances, and also barring them from photographing or videotaping the Hances’ home and driveway, garage, yard and vehicles parked in front of their home. (Smith v. Hance (May 4, 2007, D047471) [nonpub. opn.].) The restraining order was filed on September 19, 2005. We incorporate by reference the facts from our prior opinion without repeating them here.

In August 2007, Gregory moved to dissolve the injunction on grounds there had been a change in the controlling facts on which the injunction rested, namely, that the San Diego Neighborhood Code Compliance Department (the Department) had reopened a case against the Hances in February 2007, rendering “legitimate” the Smiths’ formerly complained of conduct by which they assertedly sought to document the Hances’ alleged commercial business operation in a residential neighborhood. He further argued that because the Hances moved their business, there was “nothing upon which the injunction can operate.” Hance opposed the motion on grounds Gregory had a few months earlier made a virtually identical motion that had been denied, and there had been no material change in the facts justifying dissolution. In particular, Hance pointed out Gregory offered no proof that the Department had reopened its case and argued that in any event, “[i]f Smith continues to complain to the City, and the City is thereby required to investigate, it doesn’t make his conduct legitimate; it only confirms how relentless Mr. Smith has become over the past four years in the harassment of the Hance family.”

On the day set for arguments on the matter, Gregory filed amended points and authorities to assert that the Department had reopened its case in February 2005 and

that the case was “currently open.” He challenged the superior court’s and this court’s findings and conclusions as to the basis for the civil injunction, arguing there was

“never a basis” (bold omitted) for the injunction because Steven had filed a request

for investigation on February 22, 2005, which “according to San Diego City Council Policy . . . reopened the case.” At the parties’ agreement, the court recessed the hearing to permit Hance to review the amended papers.

In oral argument, Gregory sought to explain that the February 2005 complaint “trigger[ed]” an opening of the case; he reasoned that if the case were open as of February 2005 his and his brother’s actions were “by definition” legitimate under the trial court’s and this court’s standards. Following arguments, the trial court denied Gregory’s motion on grounds he had not demonstrated a sufficient showing under Code of Civil Procedure section 533. Gregory appeals from that October 2, 2007 order.

DISCUSSION

I. Gregory’s Contentions Regarding Jurisdiction

Conceding he is raising the issue for the first time on appeal and extending his challenges beyond the trial court’s October 2, 2007 order, Gregory contends the superior court lacked jurisdiction to “enter the orders it did,” including setting the case for trial and entering the injunction upheld in this court’s prior opinion, because “the matter and parties were actually in an arbitration proceeding.” He relies on the proposition that questions of jurisdiction are never waived and may be raised for the first time on appeal and may be shown by extrinsic evidence, and he asks us to vacate all of the trial court’s orders, recall our remittitur issued in the earlier appeal, vacate the order denying dissolution of the injunction, and direct the trial court to return the parties to arbitration. Gregory maintains the issue presents a pure question of law based on undisputed facts, allowing us to exercise our independent judgment on the matter.

In response, Hance points out Gregory never raised these issues in the superior court and his assertions as to the status of arbitration are false; Hance argues the only issue at hand is whether or not the trial court had grounds to dissolve the injunction. Hance also argues the issues are moot because the injunction has now expired.

A. This Court Lacks Jurisdiction To Review Any Judgment or Order Other Than the October 2, 2007 Order Denying Gregory’s Motion to Dissolve the Injunction

We agree as a threshold matter that the only issue before us is the propriety of the court’s October 2, 2007 order. Gregory’s notice of appeal unambiguously identifies only the trial court’s October 2, 2007 order as the order from which he appeals. While California Rules of Court, rule 8.100(a)(2) provides that “[t]he notice of appeal must be liberally construed,” the rule of liberal construction does not permit appellate review of an unspecified order or judgment “where the notice of appeal unambiguously evidences an intent to appeal from . . . one of several separate appealable orders or judgments.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) 3:130.5, pp. 3-56 (rev. #1 2008); accord, Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284, disapproved on another point in San Diego Watercraft, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47; 9 Witkin, Cal. Procedure (5th ed. 2008), Appeal, § 561, p. 640.) We cannot construe Gregory’s notice of appeal as applying to any other order or judgment. Because we are without appellate jurisdiction to review any judgment or order other than the October 2, 2007 order, we disregard Gregory’s challenges to the extent they are directed at the trial court’s orders setting the case for trial or entering the injunction.

B. Gregory Cannot Raise His Jurisdictional Argument for the First Time on Appeal

Gregory argues that once a matter is submitted to arbitration, the trial court is divested of jurisdiction and becomes functus officio – of no further authority – and is “statutorily barred, pending the outcome of contractual arbitration, to proceed with a trial of the matter.” In related arguments, Gregory argues broadly the trial court lacked jurisdiction to hear the matters before it and Hance had no standing to seek judicial relief because he did not exhaust his administrative arbitration remedies. Under the principles set out above, we limit our analysis to Judge Nevitt’s October 2, 2007 order. Doing so, we reject Gregory’s arguments as forfeited.

Gregory himself acknowledges that he seeks to challenge not the trial court’s subject matter jurisdiction, but its power to act under a prescribed statutory procedure: “It is Smith’s argument that the trial courts lacked ‘jurisdiction’ in that the trial courts were deprived of the statutory power or authority to make certain orders, not that the courts lacked fundamental jurisdiction.” Indeed, Gregory argues the trial court “was invested with fundamental jurisdiction over the subject matter of the arbitration, and over the parties who signed the arbitration agreement, and of personal jurisdiction over Gregory, but, was without statutory power . . . .” Citing Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293 (Abelleira), Gregory also argues Hance should not have been granted relief because he improperly bypassed the arbitration system.

Under these circumstances, Gregory has forfeited his jurisdictional arguments by failing to raise them below. This is not an issue of fundamental jurisdiction that may be raised for the first time on appeal. (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6 ["Issues relating to jurisdiction in its fundamental sense . . . may be raised at any time"].) “By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver . . . .” (Ibid.) As Gregory acknowledges, a trial court’s disregard of a statutory limitation does not raise an issue of subject matter or personal jurisdiction. Rather, the type of jurisdictional error implicated is action by the court that is in “excess of jurisdiction,” a separate and distinct concept from subject matter or personal jurisdiction. (See Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1334; accord People v. Mower, supra, 28 Cal.4th at p. 474, fn. 6; Abelleira, supra, 17 Cal.2d at p. 288; Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1040 [acts that exceed the defined power of the court in any instance whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are described as acts in excess of jurisdiction], disapproved on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104.)

The principle applies to Gregory’s arguments invoking the exhaustion doctrine. “While the Supreme Court in Abelleira . . . ‘declared the exhaustion of administrative remedies to be jurisdictional’ [citation] . . . ‘[t]his does not mean . . . a party may raise the issue for the first time on appeal.’ [Citation.] This is because the Abelleira court ‘did not hold that the exhaustion doctrine implicated a court’s subject matter jurisdiction . . . .’ [Citation.] Rather, the doctrine is ‘ “a fundamental rule of procedure laid down by

courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts.” ‘ ” (People ex rel. DuFauchard v. U.S. Financial Management, Inc. (2009) 169 Cal.App.4th 1502, 1513, quoting Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 133-135.) The forfeiture doctrine thus applies to a claim that a party has not exhausted administrative remedies if it is not raised in the trial court. (DuFauchard, at p. 1513; Mokler, at p. 134; see also O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 583-584.)

” ‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)

Because Hance was denied any opportunity to address the jurisdictional arguments now made by Gregory, we decline to hear them on this appeal. The jurisdictional challenge was forfeited. In reaching our conclusion, we are mindful that Gregory represents himself on appeal. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. “A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘ “the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” ‘ ” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

C. Mootness

Finally, we agree that under settled principles, Gregory’s appeal is now moot. An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) “[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” (Consol. etc. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.)

“Notwithstanding [the mootness doctrine], there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [ citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination.” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480; see also Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747.) In such cases, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot. (Balayut v. Superior Court (1996) 12 Cal.4th 826, 829, fn. 4.)

None of these exceptions apply here. The September 19, 2005 restraining order expired by its terms on September 9, 2008. As a result, Gregory has essentially received the relief he requested below. Any issue that Gregory may properly raise in this appeal is now moot.

II. Hance’s Request for Sanctions, Costs and Attorney Fees

Hance asks us to sanction Gregory to “discourage him from continuing to use the judicial system as a means to harass the Hance family” and for an award of costs and attorney fees in defending the trial court’s issuance of the injunction under the parties’ July 2002 memorandum of understanding (MOU).

Absent the requisite motion with supporting documentation (California Rules of Court, Rule 8.276(b)), we deny Hance’s request for sanctions. As for attorney fees, Hance asserts that although he can no longer afford to have his attorney appear, his attorney has been assisting him with these matters and that the MOU mandates payment of attorney fees to the prevailing party. We agree that to the extent he can demonstrate he retained counsel who rendered services assisting in defending Gregory’s motion to dissolve the injunction (which in turn sought to enforce the MOU), Hance is entitled to recover his reasonable attorney fees. (Civ. Code, § 1717; West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 706-707; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1321, 1324-1325 [successful pro per litigant can recover attorney fees under Civil Code section 1717 for legal services of assisting counsel even though counsel did not appear as attorneys of record].) Because Civil Code section 1717 does not provide otherwise, he is also entitled to attorney fees on appeal. (Wanland v. Law Offices of Mastagni, Holstedt and Chiurazzi (2006) 141 Cal.App.4th 15, 21; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) We leave it to the trial court to determine such fees. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.)

DISPOSITION

The order is affirmed and the matter remanded to the trial court for a determination of the proper amount of attorney fees in accordance with this opinion. In addition to attorney fees, Hance shall recover costs on appeal.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P.J.

McDONALD, J.

Filed 3/2/09 P. v. Morales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

LOUIS PATRICK MORALES,

Defendant and Appellant.

2d Crim. No. B211113

(Super. Ct. No. 2008034149)

(Ventura County)

Louis Patrick Morales appeals from the judgment (order granting probation) entered on his guilty plea to one count of possession of a controlled substance, a felony. (Health & Saf. Code, § 11377, subd. (a).) Appellant was a passenger in a car stopped for a traffic violation. Police learned of a warrant for his arrest and took him into custody. A subsequent search of his person yielded one gram of methamphetamine. After appellant pleaded guilty, the trial court granted probation on the condition, among others, that appellant participate in a court approved drug treatment program. (Pen. Code, § 1210.1.) With respect to the prior offense that led to appellant’s arrest, the trial court noted that a 30-day jail sentence imposed in that matter was “deemed served[,]” and that appellant’s probation in that matter was “revoked and reinstated.” Appellant filed a timely notice of appeal; his request for a certificate of probable cause was denied.

We appointed counsel to represent appellant in this appeal. After counsel’s examination of the record, counsel filed a brief raising no issues. On December 24, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. On January 23, 2009, we received a letter from appellant in which he contends that the trial court should also have resolved his prior offense and that he did not receive effective assistance from his trial or appellate counsel.

We have reviewed the entire record and are satisfied that appellant’s attorneys have fully complied with their respective responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) There was no error in the disposition of appellant’s prior offense. The trial court revoked and reinstated appellant’s probation in that matter and deemed his jail term to have been served. The record also does not support appellant’s claim that his appointed counsel provided ineffective representation. There is no reasonable probability that a result more favorable to appellant could have been obtained under any circumstances.

The judgment is affirmed.

NOT FOR PUBLICATION.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Colleen Toy White, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

No appearance for Respondent.

Filed 3/3/09 In re H.N. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re H.N., a Person Coming Under the Juvenile Court Law. B208055

THE PEOPLE,

Plaintiff and Respondent,

v.

H.N.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. No. PJ41131)

APPEAL from an order of the Superior Court of Los Angeles County, Fred J. Fujioka, Judge. Affirmed.

Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

H.N. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding that she committed a battery, a misdemeanor (Pen. Code, § 242). She was placed home on probation in the home of her parents with a maximum period of confinement set at one year. Thereafter, her home on probation status was revoked and she was placed in a camp-community placement program with a maximum period of confinement set at six months. She contends there was insufficient evidence to support the finding she committed a battery and that the court erred in setting a maximum period of confinement. For reasons stated in the opinion, we affirm the order.

FACTUAL AND PROCEDURAL HISTORY

On June 11, 2007, at approximately 10:00 p.m., H.N., who was 16 years old, returned to her home in Newhall after being away for two days without permission. She rang the doorbell and when her father, D.N., asked who was there, appellant said, “Open the door,” or something to that effect. When D.N. opened the door, he asked her for her purse to make sure she was not bringing home an illegal substance. Appellant refused to give her father her purse, and he snatched it from her. Appellant then took the purse back. There was a scuffle and appellant hit D.N. in the eye. He “had a black eye after everything was done.” D.N. admitted his anger was an ongoing problem between himself and appellant.

A.N., appellant’s mother, testified appellant was at the front door for a long time before she was allowed to enter. Appellant was banging and kicking the door. A.N. thought appellant was drunk and was angry because she was being refused entry into the house. A.N. did not see appellant punch D.N. She saw them struggling and heard punching but did not see who was hitting whom. D.N. tried to stop appellant from punching him. When D.N. said appellant had hurt his eye, A.N. looked at D.N.’s eye and realized he had been punched. No one else was involved in the incident between appellant and D.N.

Appellant testified that after she had grabbed her purse back from her father, he pushed her and she fell off the front step. D.N. punched her first and she punched him back.

On redirect, D.N. testified he clearly remembered that he did not punch appellant. Before she punched him, he pushed her and told her she was not coming in the house until he searched her purse.

Prior to sustaining the petition, the court stated in pertinent part “[T]he one thing that’s clear is that the father was hit. Everybody is clear on that. Father says he got hit. [Appellant] says she hit him. It’s also clear the result was he had a black eye. Although the father at the beginning was somewhat equivocal about whether or not she hit him, he was a lot more positive after he started using the interpreter, and there was enough testimony at the end of his testimony, after the People went over it again, to make [the court] believe it could be that he was hit. After she said she hit him, there’s no doubt in [the court’s] mind at all. We start with the fact that he got hit and he had a black eye that night. [] The real issue is whether or not . . . she was acting in lawful self-defense when she hit him in the eye. . . . It’s [the court’s] view, it actually began when the minor was kicking at the door and yelling. The parents who, at that time believed she was inebriated—and it is my view she probably was either drunk off one beer or a lot more than one beer, but I believe she was inebriated and that caused her to bang on the door and scream and shout and kick. . . . It’s my view she initiated the confrontation that later occurred. The parents opened the door and then advised her that she can’t come in the house unless they check her purse to see if there’s any contraband . . . in her purse. [The court believes] that was a lawful act by the parent and that the touching at that point was both reasonable, lawful and legal. Technically, it was a battery if you pull a purse away from someone, but I don’t believe that that was an unlawful touching. [] At that point the father pulled the purse away in order to search the purse to see if she had any contraband. When the minor insisted on coming in the house, whether he was allowed to search the purse [or] not, whether he wanted her to come in the house or not, in her current state she was bound and determined to come in. At that point I believe the force that the father used was lawful, that is, he pushed her out of the house. [] Now, we get to the part where the minor says that the father punched her in the face. If I believed that is true, then the minor would have acted in lawful self-defense in punching the father back. I’m going to look the minor in the eye and tell the minor I don’t believe it happened that way. The father is a large enough man so, if he punches the minor, who is a lot smaller than him, in the face with a closed fist hard enough to give her head pain for a time afterwards, there would have been a mark on her face. That’s what happens when you hit somebody with a closed fist. The father is big enough where he would have hurt her badly. What the minor said, it sounded so thought through, the fact she said it in a real positive manner doesn’t impress me at all. [] [Defense counsel], I don’t believe she was coached at all, not even for a second, because you’ve appeared in front of me for more than a year, and I don’t think you coach witnesses. No, I don’t. But I also think that the minor is smart enough to figure out for herself that, if she acts in self-defense, it’s a defense. [] I want to make that clear. It’s real important that you understand that. But I also want to make it clear that I don’t believe her. I believe she’s out of control, and I believe she’s willful, and I believe she punched her father in the eye and gave him a black eye, and it was not justifiable or justified when she did that. . . .”

DISCUSSION

I

Appellant contends there was insufficient evidence to support the finding she committed a battery. “‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’ [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

“This standard applies to cases based on circumstantial evidence. [Citation.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Here, it was undisputed that appellant punched her father causing him to have a black eye. The trial court specifically found appellant’s testimony that her father had hit her first was not believable. Moreover, while self-defense is a defense to battery, the appropriateness of conduct used to defend oneself varies depending on the circumstances. (See Pen. Code, § 693.) Here, substantial evidence supports the court’s finding that appellant’s conduct in punching her father in the eye was not justifiable conduct under the circumstances and constituted a battery. While reasonable force may be used to resist a battery, appellant’s punch unreasonably escalated the amount of force used in reaction to the pushing and shoving that was occurring. (See People v. Myers (1998) 61 Cal.App.4th 328, 330.)

II

Appellant contends the juvenile court erred in setting a maximum term of confinement of one year rather than six months and further erred in setting a maximum term of confinement since appellant had been placed home on probation. (See In re Ali A. (2006) 139 Cal.App.4th 569.) Although appellant is correct with regard to the court’s initial order, the subsequent disposition order made on July 24, 2008, removed appellant from the custody of her parents and properly set a maximum period of confinement at six months. There is no error to correct.

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

Filed 3/3/09 Marinaro v. Hanger, Levine & Steinberg CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RONALD MARINARO,

Plaintiff and Appellant,

v.

HANGER, LEVINE & STEINBERG,

Defendant and Respondent.

B205629

(Los Angeles County

Super. Ct. No. BC346742)

APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Dunn, Judge. Reversed.

Tesser & Ruttenberg and Brian M. Grossman for Plaintiff and Appellant.

Hinshaw & Culbertson and Filomena E. Meyer for Defendant and Respondent.

_____________________________

Plaintiff Ronald Marinaro (“Marinaro”) alleges that the defendant law firm Hanger, Levine & Steinberg (“Hanger Firm”) committed legal malpractice in its defense of Marinaro in a prior suit arising from a nascent business relationship between Marinaro and William Richert (“Richert”). The trial court granted the Hanger Firm’s motion for summary judgment because it concluded that Marinaro’s opposition thereto invalidly contradicted prior sworn deposition testimony of the two declarants and was also too speculative. We disagree and therefore reverse.

BACKGROUND

In the course of performing his professional services as a chiropractor, Marinaro fell into discussion with his patient Richert about the latter’s plan to establish a business that would involve the roasting of soy beans in such a fashion that the product would mimic the taste of coffee. In the underlying action, Richert alleged that a partnership was formed for the purpose of engaging in the soy-coffee business, but that Marinaro breached contractual and fiduciary obligations to Richert by taking the ideas and knowledge gained in the parties’ conversations and starting a separate, competing business of his own.

After receipt of Richert’s complaint, Marinaro tendered its defense to State Farm General Insurance Company (“State Farm”), from which he had purchased a Commercial Liability Policy and an Umbrella Policy. State Farm decided to defend the case, with a reservation of rights, and engaged the Hanger Firm to represent Marinaro. (State Farm is also a defendant in the present action, but is not a party to this appeal.) In the course of this representation, the Hanger Firm wrote several reports to State Farm with its analysis of the suit. In doing so, the Hanger Firm generally painted a gloomy picture of Marinaro’s prospects for the defense of Richert’s claims. The details of those letters need not be fully recited here, but they are best summarized in the Hanger Firm’s April 15, 2004 report to State Farm that “we believe that [Richert] will prevail” and “. . . the measure of damages would be devastating to [Marinaro].”

Marinaro alleges that none of these dire predictions was communicated to him in any manner. On the contrary, he states that he was told by Robert Levine of the Hanger Firm that he expected to prevail and that he had “never lost a case.” Pretrial settlement discussions were unsuccessful, with Marinaro now contending that he was then imbued with confidence by the rosy outlook given him by his attorneys.

Perspicacious readers will intuit what happened next. In August 2004, a jury rendered a verdict awarding Richert more than $14.5 million in compensatory and punitive damages against Marinaro. Appellate review resulted in the affirmance of awards of $526,000 for economic damages and $60,000 for non-economic damages. Awards of a further $6 million for compensatory damages and $8 million for punitive damages were vacated because the appellate court concluded that these sums had been improperly calculated. The case was returned to the trial court for possible corrective action in regard to these latter amounts.

While the underlying action was again pending in the trial court, and after the present case was filed, Richert’s action was settled for payments including $120,000 that had been collected through levy, a further $210,000 in cash from Marinaro, and the assignment of 30% of Marinaro’s gross recovery in this lawsuit.

The essence of Marinaro’s claim against the Hanger Firm is his contention that his lawyers had a professional obligation to advise him about the merits of Richert’s claims and that their failure to discharge that duty kept him from negotiating a settlement for less than the amount which that case ultimately cost him. The Hanger Firm’s motion for summary judgment focused on the damages claimed by Marinaro, contending that there is no proper, competent evidence that either Richert or Marinaro would have settled, before the trial, for any amount less than their ultimate settlement. The motion was supported principally by excerpts from the depositions at which Richert and Marinaro described their pretrial negotiations and revealed thoughts which they then held about the settlement terms which might have been acceptable to them. The Hanger Firm urges that this deposition testimony shows that the case could not have been settled for any amount less than the sum to which the parties later agreed post-trial. Marinaro’s opposition to the summary judgment motion relied almost exclusively upon declarations from Richert and Marinaro purportedly showing that a less expensive settlement would have been achieved before the underlying trial if Marinaro had been advised that he was likely to suffer a significant loss at that trial.

The trial court gave no weight to the plaintiff’s opposing evidence, dismissing it as “self-serving statements based on hindsight which contradict prior sworn testimony in depositions. The court disregards such evidence under the law of D’Amico.” The court further sustained objections to the essential parts of the Richert and Marinaro declarations upon the basis that those statements were “speculative.” After these two fatal blows to the opposition, the inevitable consequence was the granting of the Hanger Firm’s motion for summary judgment.

DISCUSSION

The “law of D’Amico” referenced by the trial court has grown substantially since its origin in the case of D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1. It is now often recited, as in Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 that a “party cannot create an issue of fact by a declaration which contradicts his prior [discovery responses].” The D’Amico case itself did not require such a rule, because that opinion mentions no evidence that conflicted with the admissions made by anyone during discovery.

Among the progeny of D’Amico is Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, which noted that directly conflicting testimony given by the same witness before trial and during trial is normally weighed by the trier of fact. That court therefore urged caution in the application of a rule which grants summary judgment without this traditional weighing of such evidence. “We do not interpret the [D’Amico] decision, however, as saying that admissions should be shielded from careful examination in light of the entire record. A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.” (Id. at p. 482.)

Richert evidence. In a declaration submitted in support of Marinaro’s opposition to the Hanger Firm’s motion for summary judgment, Richert described some of the pretrial negotiations in the underlying case. He stated: “Had Marinaro offered $200,000 instead of $100,000, I would have accepted his offer, regardless of whether he also offered a percentage of the sales of Rocamojo.” (Rocamojo was the company Marinaro started, allegedly for the purpose of using the soy-coffee technology and strategies he learned from Richert.) There is no contrary testimony by Richert in the record. In its Reply in support of the motion for summary judgment, the Hanger Firm submitted excerpts of Richert’s deposition which had been taken four months earlier. That deposition testimony can best be characterized as vague and imprecise. Richert variously described his goals in the prior case: He wanted an interest in Marinaro’s new business. (He thought getting 100% “would be fair,” but “I would take 50%.”) He wanted money. (“I personally would have taken $100,000,” net of fees for his lawyer/partner. He wanted Marinaro to offer $200,000 because “I figured $200,000 would pay the lawyers,” but “I never said [I]would have taken $200,000.”) He may have insisted that an interest in Marinaro’s business be included in the deal, but this is hardly clear. (Richert was asked “In fact, that (getting some ownership of the defendant’s business) was not a deal term or deal point that you were willing to negotiate?” He answered: “No.” What does that answer mean?) This vague and scattered testimony requires the invocation of the admonition in Price about the limited value of “tacit admissions or fragmentary and equivocal concessions.”

Marinaro evidence. In opposing the Hanger Firm’s motion, Marinaro declared that, if he had known of that firm’s bleak prognosis for his defense, he “would have increased [his] settlement offer to at least $250,000.” His earlier deposition testimony was that he “might have come up with a hundred or a 150” and that during those negotiations he did not have in mind a maximum that he would be willing to contribute. Also: “I didn’t have a number in mind what I would finally settle at.” Are these answers inconsistent with his later declaration? Perhaps; perhaps not. Congruity of these answers is not the important issue here, because the questions are not the same. “What were you considering in your ignorant, uninformed, and optimistic state of mind?” is quite different from “What would you have offered in order to avoid a ‘devastating’ adverse judgment that was anticipated by your expert counsel?” Denying Marinaro the opportunity now to put himself in that state of mind (“I am about to be ruined.”) would essentially make the Hanger Firm’s alleged error impervious to challenge. Even Nostradamus would not say “My top offer before trial was $x because my attorneys assured me that I would prevail, but I also then had in mind that if, perchance, my trusted counsel are deceiving me and I am really facing imminent disaster, then my top offer is $xx.” The lawyers should not expect their clients to think in those terms. Marinaro’s testimony is indeed “hindsight,” but the alternative is to ask him to testify about a state of mind that no lawyer should want or expect a client to have. That is: “This is what I feel because I know that you are lying to me.”

“Speculative” is an elusive objection. Many texts and treatises on evidence do not even index this term. This is perhaps explained by the CEB book on Trial Objections, which states that a “more precisely worded objection” would assert a lack of personal knowledge or lack of foundation. (Heafey, Cal. Trial Objections (Cont.Ed.Bar 2008) Stating the Objection, § 16.7, p. 160.) These terms reveal that Richert and Marinaro were qualified to testify about their states of mind at the time of these negotiations.

The ultimate trier of fact in this litigation can evaluate the testimony tendered in opposition to this motion for summary judgment. It may also be appropriate to consider (1) that both Richert and Marinaro have a financial interest in the outcome of this trial,

(2) that there seems to be no written record of the negotiation strategies that were not revealed before the underlying trial, and (3) that Marinaro’s hypothesis about what his earlier action might have been fits nicely within the limited range that could make this case viable. That fact-finder might also hear a version of the communications between Marinaro and the Hanger Firm that is markedly different from the allegations in this complaint. The grant of this motion for summary judgment has improvidently deprived all participants of the opportunity to present such evidence.

DISPOSITION

The order granting summary judgment is reversed, with directions that the motion be denied. Appellant shall recover costs incurred in this appeal.

NOT TO BE PUBLISHED.

BAUER, J.*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.