CA Unpub Decisions

Defendant pled no contest to the crime of unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) Defendant was granted three years probation, with the condition she serve 180 days in custody. Defendant essentially contends that probation term No. 18, which requires her to cooperate during field interrogations, infringes on her Fifth Amendment privilege against self-incrimination and, therefore, must be narrowly drawn. Defendant requests the probation condition be modified to include a provision indicating that she retains her Fifth Amendment privilege. In addition, defendant essentially contends that probation term No. 18 is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295, because it is not related to the crime for which she was convicted or to future criminality.

This is an appeal by plaintiff and appellant San Bernardino Public Employees Association (hereafter SBPEA) from the judgment of dismissal entered against it and in favor of defendants and respondents, San Bernardino Superior Court and Tressa Sloan Kentner, in her official capacity as Court Executive Officer (hereafter defendants), after the trial court sustained their demurrer, without leave to amend, to SBPEAs petition for writ of mandate. SBPEA and two individual court reporters (referred to collectively as plaintiffs)[1]filed the petition in order to obtain a declaration that defendants were not properly compensating court reporters for the preparation of certain transcripts. Plaintiffs also sought a writ of mandate directing defendants to cease and desist from failing to properly compensate court reporters. The petition alleged, in pertinent part, that SBPEA is the authorized collective bargaining representative for court reporters employed by San Bernardino Superior Court and in that capacity has standing to sue on their behalf to obtain compensation under Government Code section 69950 for the preparation of certified transcripts.For reasons we now explain, Court conclude that the associational standing requirements are not met in this case. Therefore, Court affirm the judgment.

Danielle F. (hereafter mother) appeals from the trial courts order under Welfare and Institutions Code section 366.26[1]terminating her parental rights to four of her five children. Mother contends that the beneficial relationship and the sibling relationship exceptions to parental rights termination apply in this case. In addition, mother challenges the sufficiency of the evidence to support the trial courts finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) does not apply in this case. Court agree with mothers ICWA claim and therefore conditionally reverse the judgment.

A jury convicted defendant Marcial Armenta Ochoa of premeditated attempted murder and other associated charges, with true findings on weapon-use allegations, following a shooting from an alley into the backyard of a residence. He was sentenced to a total term of life plus 25 years to life. On appeal, defendant contends that his sentence violates Penal Code section 654. For the reasons set forth below, Court affirm the judgment.

Following a jury trial, defendant was found not guilty of robbery (Pen. Code, 211) but guilty of the lesser included offense of attempted robbery ( 664/211). The jury also found true the enhancement allegation that defendant participated as a principal in the commission of the offense knowing that another principal was armed with a firearm ( 12022, subd. (a)(1)). As a result, defendant was sentenced to a total term of two years four months in state prison.
The judgment is affirmed.

Defendant appeals from a judgment quieting title in favor of plaintiff Brethren Hillcrest Homes concerning two adjoining San Jacinto properties, 140 East 7th Street and 198 East 7th Street. The trial court did not abuse its discretion in determining defendant cannot establish he was entitled to ownership of the property by adverse possession. (Wm. R. Clarke Corp. v. Safeco Ins. Co. of America (2000) 78 Cal.App.4th 355, 359; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226.) Court affirm the judgment.

Defendants and appellants Stephanie T. (mother) and Michael T. (father) are the natural mother and father, respectively, of five children: Ryan T., twins Nicholas and Nathan T., a daughter Brianna T., and the youngest, Jonathan T. All five children were made dependents of the juvenile court. Mother and father appeal an order of the juvenile court terminating their parental rights to the younger two children, Brianna and Jonathan. Both parents argue that the court erred in terminating their parental rights, because the order improperly severed important ties to their older siblings. In addition, father argues that the court erred in denying his petition for changed orders under Welfare and Institutions Code section 388. The claims on appeal are unmeritorious and Court affirm.

On December 26, 2002, defendant, represented by counsel, pled guilty to one count of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)); in return, the remaining allegations were to be dismissed, and defendant was promised a grant of formal probation under Proposition 36. Defendant was released on his own recognizance. Sentencing was set for January 17, 2003. On the date set for sentencing, defendant failed to appear, and a bench warrant was issued for his arrest. Defendant was eventually apprehended and was sentenced on May 23, 2003, in accordance with the negotiated disposition. He was placed on formal probation under various terms and conditions, including completing a drug program. Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

Plaintiffs P.A.C. Auto Mall, Inc. and Bobby Perales (collectively PAC) appeal from a judgment entered in favor of defendant Finance and Thrift Company (Finance) after Finances demurrer to the first amended complaint was sustained without leave to amend and the trial court denied PACs motions for reconsideration and to set aside the order on the demurrer. PAC claims the trial court erred when it concluded PAC could not state a valid cause of action for breach of contract. PAC also claims the trial court erred in failing to allow it to amend its pleading because it has presented facts which, if alleged, would be sufficient to state a cause of action. While we disagree that the trial court erred in sustaining the demurrer to the first amended complaint, Court agree PAC should have been given leave to amend as to its breach of contract claim. Accordingly, Court reverse the judgment only as to the breach of contract claim.

Real estate agents Brook and Marc Luter (appellants) terminated their contractual relationship with broker, L. Stroope, Inc. (respondent), which led to a dispute over commissions earned by appellants on pending real estate sales. Pursuant to the parties written agreement, appellants submitted a complaint for arbitration of the dispute. However, when complications caused delay in the selection of an arbitration panel, respondent filed a civil lawsuit in the Kern County Superior Court. The lawsuit included the parties commission dispute but also added other tort and contract causes of action. Appellants petitioned the superior court to compel arbitration of the matters set forth in respondents lawsuit. The court denied the petition on the ground that a 180-day deadline provision for filing an arbitration complaint had expired, resulting in a waiver of the right to arbitrate. Appellants appeal, contending the trial court erred in its interpretation of the filing deadline. We agree. Under a proper construction of the subject provision, the arbitration complaint was timely filed as to nearly all of the pending escrows involved in the commission dispute. Furthermore, the claims set forth in respondents lawsuit were within the scope of the parties broadly worded arbitration clause. Accordingly, Court reverse the order denying the petition to compel arbitration and remand with instructions to enter a new order granting the petition, except as otherwise indicated herein.

During the early morning hours of May 6, 2004, appellant Miguel Mikey Ontiveros Cisneros fatally shot Everado Baloney Marquez while Marquez was sleeping. Marquez suffered two gunshot wounds to the head and four gunshot wounds to the neck, right shoulder and right arm. Ulises Alvarez acted as the lookout and the murder weapon was found in his home. About two weeks prior to the homicide, appellant and Ernesto Garcia discussed a plan to lure Marquez outside his home and shoot him. Garcia subsequently made an unsuccessful attempt to obtain a firearm for appellant. Garcia did not participate in the fatal shooting.
Appellant challenges the sufficiency of the evidence supporting the street gang enhancement and the street gang special circumstance. Also, he argues that Aguilars testimony improperly embraces ultimate issues and lacks adequate foundation. None of appellants arguments are persuasive; Court affirm.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.450/8.452) to vacate the order of the juvenile court issued at a post-permanency plan review hearing (Welf. & Inst. Code, 366.3) setting a section 366.26 hearing as to her daughters A. and S. We conclude her petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 (rule 8.452). Accordingly, Court dismiss the petition as facially inadequate.

Defendant Laura Michele Martin appeals from the trial courts order revoking probation, terminating her participation in a drug treatment program pursuant to the Substance Abuse and Crime Prevention Act of 2000 (the Act),[1] and reinstating probation with the new condition she complete the Drug Court Program of the Orange County Superior Court. She contends the trial court abused its discretion by terminating her participation in the drug treatment program because her three probation violations precipitating the courts order were minor, and she was only four classes away from completing the drug treatment program. The order is affirmed.

As we will explain in greater detail below, in the execution of a search warrant, a law enforcement investigator discovered cocaine in Humberto Fajardos garage after a narcotics detection dog alerted the investigator to the presence of a controlled substance. The search warrant affidavit contained information from a confidential reliable informant that the informant could obtain a usable quantity of cocaine from Roberto. The trial court denied Fajardos motion to disclose the identity of the confidential reliable informant. A jury convicted Fajardo of possession for sale of a controlled substance, and he appealed from the judgment.
On appeal, Fajardo argues the trial court erroneously denied his motion to disclose the confidential reliable informants identity. He also claims the court erroneously instructed the jury it could rely on Fajardos prior uncharged drug-related offenses to show he knew the cocaine was in his garage. As Court explain below, Court conclude the instruction did include erroneous language, but when read in their entirety, the jury instructions were proper. His first contention regarding the confidential reliable informant has no merit. Court affirm the judgment.