CA Unpub Decisions

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.

Defendant Joseph Johnson, Jr. appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years from 2002 to 2004 under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, 6600 et seq.)[1] He argues: (1) the trial court should have dismissed the recommitment petition before trial because it was moot; (2) trial on the moot petition violated his right to substantive due process; (3) the trial court abused its discretion by permitting the prosecutions expert witnesses to testify about offenses for which defendant was arrested and charged but not convicted; (4) the trial court abused its discretion by permitting the prosecutions experts to testify about a murder solicitation charge of which defendant was not convicted; (5) these evidentiary rulings violated his due process right to a fair trial; and (6) the trial courts order requiring him to pay attorney fees is not supported by substantial evidence and did not comply with statutory procedures.
Court find merit in defendants attorney fee claim. Court therefore strike the order requiring payment of attorney fees and remand the matter for a hearing on defendants ability to pay the actual costs of the legal services provided. However, because the commitment period at issue (2002 to 2004) has expired, Court dismiss this appeal as moot after deciding the attorney fee question for the guidance of future SVPA proceedings.

The trial court denied the petition for writ of administrative mandamus in which Deputy Sheriff Louis Parker,[1] sought to vacate the disciplinary action terminating his employment with the Monterey County Sheriffs Office (Sheriffs Office). The Sheriffs Office terminated Parker on the grounds that he was negligent when he accidentally shot a civilian and that he lied during the internal affairs investigation into the shooting. The Monterey County Board of Supervisors (the Board) upheld the termination.
Parker contends his due process rights were violated because his termination was based on charges that were not set forth in the Notice of Punitive Action. He asserts the Boards finding that other negligent discharge cases were dissimilar was not supported by substantial evidence and that substantial evidence does not support the Boards decision to distinguish this case from accidental discharge cases that did not result in human injury. He argues the decision to terminate him was an abuse of discretion because it was the result of disparate treatment and was not supported by the evidence. Court find no error and affirm the superior court judgment.