CA Unpub Decisions

In 2010, appellant Haydee C. Javier filed an quiet title action alleging that she had an ownership interest in residential real property that respondents Dennis Milton Taylor and Laura Jeanne Taylor (hereafter, the Taylors) purchased in 1986. The Taylors demurred on the grounds that Haydee’s[1] claims were barred by the applicable statutes of limitation and the doctrine of res judicata, since her claim to an ownership interest in the property now owned by the Taylors was previously rejected by the trial court in prior actions in 1985 and 1990. On February 29, 2012, the trial court sustained the Taylors’ demurrer without leave to amend, finding that the action was time-barred under Code of Civil Procedure section 338, subdivision (d),[2] the three-year statute of limitations applicable to a quiet title action based on fraud.
On appeal from the judgment of dismissal, we understand Haydee, a self-represented litigant, to challenge the trial court’s order sustaining the demurrer without leave to amend and to request that she be granted leave to amend the complaint. For reasons that we will explain, we conclude that the trial court did not err in determining that Haydee’s action is time-barred and denying leave to amend the complaint. We will therefore affirm the judgment.

Plaintiff Ana Tamayo filed an action alleging employment-related claims against defendants Cordevalle Golf Club, LLC and Cordevalle, L.P. Defendants filed a motion to compel arbitration, arguing that Tamayo’s claims fell within the scope of an arbitration agreement. The trial court denied the motion and defendants appeal. For the reasons stated below, we conclude that the parties did not enter into a binding arbitration agreement, and therefore we will affirm the trial court’s order denying the motion to compel arbitration.

Defendant Marlon Johnson appeals after conviction, by jury trial, of recklessly causing fire to an inhabited structure in violation of Penal Code section 452, subdivision (b).[1] He was placed on probation for four years, with a number of conditions, including some barring him from using or possessing alcohol, drugs, and weapons.
On appeal, defendant contends: (1) the trial court erred by failing to give a unanimity instruction, since there was evidence that he caused two separate fires; (2) the trial court erred by instructing the jury, pursuant to CALCRIM No. 359, that it could rely on his out-of-court statements to convict him if “slight” additional evidence supported a “reasonable inference that a crime was committed”; and (3) some of the probation conditions were unconstitutionally vague.
We will modify the challenged probation conditions but affirm the judgment in all other respects.

Defendant Theodore Johnson appeals after conviction of discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)),[1] threatening an executive officer (§ 69), and unlawful firearm activity (former § 12021, subd. (c)(1)). He was placed on probation for three years.
On appeal, defendant contends: (1) the trial court erred by terminating his self-representation on the day that his trial was scheduled to begin; (2) the trial court erred by denying his motion to quash the search warrant; (3) there was insufficient evidence to support his conviction of discharging a firearm in a grossly negligent manner; (4) the trial court erred by imposing a condition of probation that precludes him from associating with people that he knows or “reasonably should know” to be on probation or parole; and (5) he is entitled to additional custody credits under the October 1, 2011 version of section 4019.
For reasons that we will explain, we will affirm the judgment.

A jury convicted defendant Luis Ciprian Aviles of four counts of lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a)), and two counts of sexual penetration with a child 10 years old or younger (Pen. Code, §§ 288.7, subd. (b), 289). The jury made special findings that defendant committed lewd acts on a child on more than one victim. (Pen. Code, §§ 667.61, subd. (c), 1203.066, subd. (a)(7)). Defendant was sentenced to a prison term of 60 years to life.
On appeal, defendant contends he received ineffective assistance of counsel when his counsel did not object to certain hearsay testimony that was admitted as a spontaneous declaration under Evidence Code section 1240. Finding neither ineffective assistance nor prejudice from counsel’s decision not to object, we affirm.

Jimmy Gomez appeals from a judgment after a jury convicted him of second degree robbery and one count of attempted second degree robbery, and found true he was armed with a firearm and personally used a firearm. Gomez argues the trial court violated the dual use of facts prohibition in sentencing him to the upper term. We disagree and affirm the judgment.

Melody M. seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of the juvenile court’s orders issued at an 18-month review hearing (Welf. & Inst. Code, § 366.22)[1] terminating her reunification services and setting a section 366.26 hearing to select a permanent plan for her three-year-old son, Christopher. Melody contends the juvenile court erred in finding it would be detrimental to return Christopher to her custody. Alternatively, she contends the Stanislaus County Community Services Agency (agency) did not provide her reasonable visitation. We deny the petition.

Michael M. (father) appeals an order continuing juvenile court jurisdiction over his son, Michael, under Welfare and Institutions Code section 364.[1] Father challenges the sufficiency of the evidence to support the juvenile court’s finding that its continued supervision was necessary to protect Michael. We affirm the order.

Appellant Fred Dale Beck was convicted by jury on September 15, 2011, of one count of unlawfully and knowingly possessing marijuana while in Avenal State Prison (Pen. Code, § 4573.6),[1] and the jury found true the allegation that he had three prior strike convictions (§§ 667, subd. (b)-(i); 1170.12, subds. (a)-(d)). After the trial court struck two of Beck’s previous strikes, he was sentenced to the upper term of four years in prison, doubled to eight years due to a remaining prior strike. His sentence was to run consecutively to his current prison stay.
On appeal, Beck contends that the trial court abused its discretion when it denied his posttrial motion for disclosure of personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), in support of a new trial motion based on ineffective assistance of his trial counsel. The People concede that the trial court did not make an informed exercise of discretion in denying the motion as to two of the three officers at issue, and that a conditional reversal is necessary for the court to hold a new hearing on the motion. We accept the concession and remand for such a hearing.

On December 20, 2011, appellant, Eric Michael Rubio, was charged in an information with being a convicted felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1), count 1), misdemeanor driving a vehicle under the influence of alcohol (Veh. Code, § 23152, subd. (a), count 2), and misdemeanor driving with a blood alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b), count 3). The information alleged as to counts 2 and 3 that appellant refused a blood alcohol test (Veh. Code, § 23612). It was further alleged that appellant had one prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
At the conclusion of a hearing on January 27, 2012, to suppress evidence pursuant to Penal Code section 1538.5, the trial court denied appellant’s motion. On February 3, 2012, appellant entered into a plea bargain and waived his rights pursuant to Boykin/Tahl.[1] Appellant pled no contest to the first two counts and admitted the three strikes allegation with the understanding that the trial court would strike it at the sentencing hearing. Under the plea agreement, the court would impose a term of two years on count 1 and a concurrent misdemeanor sentence on count 2. Appellant pled no contest to the first two counts, admitted the prior serious felony conviction allegation, and the remaining allegations were stricken pursuant to the plea agreement.
On March 16, 2012, the trial court struck the prior serious felony conviction and sentenced appellant pursuant to Penal Code section 1170, subdivision (h) to a term of two years on count 1 and a concurrent sentence of 90 days on count 2. The court imposed a restitution fine of $240 and granted two days of custody credits. Appellant contends that the trial court erred in denying his suppression motion. We disagree and affirm the judgment.

Reynaldo Rey was sentenced to a third strike (Pen. Code, § 667, subds. (b)-(i))[1] term of 29 years to life after a jury convicted him of three felonies and found true the allegation that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). Rey argues the trial court erred in instructing the jury, abused its discretion in failing to grant relief from the three strikes sentence pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero), and erred in failing to apply section 654 to stay the sentence on one of his convictions. We disagree and affirm the judgment.

A jury convicted appellant Alma Delia Reyes of 14 various felony and misdemeanor offenses, all pertaining to real estate transactions where Reyes, a realtor, misrepresented clients’ income and other information in loan applications and misrepresented information about the real property in order to obtain loan financing and complete a sale. She challenges her conviction on one misdemeanor count, false statement by a real estate agent, on the basis of instructional error and insufficient evidence. Reyes also raises multiple challenges to her sentence on the basis of Penal Code section 654.[1] Finally, she contends the abstract of judgment contains errors and must be corrected. The People essentially concede the issues raised by Reyes.
We will reverse the count 24 conviction on the basis of instructional error and remand for resentencing in conformance with this opinion and with directions that any terms of imprisonment imposed on counts 2, 5, 8, 12, 21, 22, 23, and 26, as well as the section 12022.6 enhancements appended to counts 5, 12, and 26 should be stayed pursuant to section 654.

E. S. appeals an order terminating her parental rights to M. L. She contends that her due process rights were violated by lack of notice that at the selection and implementation hearing, pursuant to Welfare and Institutions Code section 366.26, the San Bernardino County Children and Family Services department (CFS) would recommend adoption as the child’s permanent plan.[1] She also contends that the order must be reversed for failure to comply with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)

Defendant Arnoldo Estevez Vargas appeals from judgment entered following a jury conviction for premeditated murder (Pen. Code, § 187, subd. (a)[1]). The jury also found true allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that defendant personally used a firearm (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life, plus three years for the gang enhancement.
Defendant contends the trial court erred in denying his request for instruction on provocation (CALCRIM No. 522). Defendant also asserts the trial court erred in imposing a fixed three-year term for the gang enhancement under section 186.22, subdivision (b)(1). We conclude there was no instructional error but reverse the three-year gang enhancement term because the murder conviction carries a life term and, therefore, the gang enhancement must be stricken. The judgment is affirmed in all other respects.