CA Unpub Decisions

Defendant Dennis Patrick Malavasi appeals from post-conviction orders executing previously imposed state prison sentences in two separate cases which have been consolidated for the purpose of argument and opinion. Malavasi contends the trial court erroneously denied him placement in the county jail under The Criminal Justice Act of 2011 (hereafter Realignment Act). (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; Pen. Code, §1170, subd. (h), (hereafter section 1170(h).)[1] This presents a pure question of statutory construction which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) We find no error and affirm.

Katherine W. (mother) appeals from orders denying her petitions under Welfare and Institutions Code[1] section 388 and terminating her parental rights to her daughters, Dana A. (born December 2006) and Mary A. (born August 2008) (collectively, the children). Mother contends the juvenile court erred by denying her section 388 petitions seeking reunification services and her alternative request for a bonding study. She also contends the court erred by failing to apply the beneficial relationship exception to termination of parental rights. We reject these contentions and affirm the judgment.

N.O. (mother) appeals from the jurisdictional findings and dispositional order removing her 16-year-old son Nickolas, 13-year-old son Kenneth and 2-year-old daughter Rebecca from her custody under Welfare and Institutions Code section 361.[1] Mother contends the juvenile court erred in finding jurisdiction under section 300, subdivisions (b) and (g). She also contends the juvenile court erred in finding that returning the children to her custody would expose them to a substantial risk of harm or, alternatively, that there was not a reasonable alternative to removal. We disagree and affirm the juvenile court’s findings and orders.

A jury convicted appellant, Keith Gerome McCray, of unlawful driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a); count 1) and receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count 2).[1] In a separate proceeding, appellant admitted two of three alleged “strike” allegations[2] and seven of eight alleged section 667.5, subdivision (b) (hereafter section 667.5(b)) prior prison term enhancement allegations. The court made no inquiry regarding, and appellant did not admit, one of the strike allegations and one of the section 667.5(b) enhancement allegations.
The court struck the two strike allegations appellant admitted and imposed a sentence of 12 years, consisting of the two-year midterm on count 1, doubled pursuant to the three strikes law, for a total of four years based on the court’s assumption that appellant had admitted one strike allegation, plus eight years on the section 667.5(b) enhancements based on the court’s assumption that appellant had admitted all eight prior prison term enhancement allegations. The court imposed, and stayed, pursuant to section 654, a four-year term on count 2 and awarded appellant 699 days of presentence credits, consisting of 467 days of actual time credits and 232 days of conduct credits.
On appeal, appellant contends the court erroneously (1) imposed sentence on two prior prison term enhancements, and (2) failed to calculate his conduct credit under the one-for-one credit scheme of section 4019. We modify the sentence by striking two one-year section 667.5(b) enhancement terms, and otherwise affirm.

On February 18, 2011, appellant, Jose Farias Ochoa, entered a laundromat and removed a candy machine from the premises. A jury found appellant guilty of second degree commercial burglary (Pen. Code,[1] § 459; count 1) and possession of burglar’s tools (§ 466; count 2) and the court found that he had served a prior prison term (§ 667.5, subd. (b)). On August 23, 2011, the court sentenced him to a total prison term of three years (the middle term of two years for count 1, plus one year for the prison prior) and ordered him to pay $350 in victim restitution. Appellant now contends he is entitled to be resentenced pursuant to section 1170, subdivision (h), which became operative on October 1, 2011. He also challenges the sufficiency of the evidence supporting the court’s order of victim restitution. We affirm.

Measure E is a Kern County ballot measure that was designed to ban in unincorporated areas of the county the use of agricultural fertilizer made from recycled municipal sewage sludge. The application of this fertilizer, known in the industry as “biosolids,” is a major, widespread, comprehensively regulated form of recycling upon which many municipalities’ waste management systems depend. In fact, Kern cities, including Bakersfield, Taft, Wasco and Delano, continue to apply biosolids to farmland in incorporated areas, which are unaffected by Measure E.
If enforced, Measure E would have the effect of preventing plaintiff City of Los Angeles and others (including Kern County itself) from continuing to apply biosolids in unincorporated areas as a means of disposing of sewage sludge on farms they either own or contract with in Kern County. The litigation has been proceeding through federal and state courts for more than six years. Most recently, the complaint was refiled in the superior court after a federal district court’s judgment invalidating the measure was vacated for reasons having nothing to do with the merits. Just as the district court had done earlier, the superior court issued a preliminary injunction to prevent the measure from taking effect, and defendant Kern County appeals.

E.M., father, and M.Q., mother, had a three-year relationship, resulting in the birth of C.M., the minor, in 2002. The relationship ended in 2003, after father stole a safe from mother’s parents’ home and moved in with his male partner. Family law orders awarded the parents joint legal custody and ordered father to pay child support, but father never voluntarily paid support for his child. Visitation became problematic after mother married D.Q., the stepfather, and father was convicted of first degree burglary in connection with the earlier theft of the safe from mother’s parents, resulting in his incarceration. Upon his release in 2007, mother opposed visitation without a monitor, obtained new family law orders awarding her sole custody and requiring father to participate in certain programs. For over a year, monitored visits took place, but father never completed the court-ordered programs, and visits stopped in 2009 due to father’s lack of funds to pay for the monitor. After a year, and after father sustained additional convictions, D.Q. filed a petition for a stepparent adoption and to terminate father’s parental rights. The court found abandonment and terminated the parental rights of father. Father appealed.
On appeal, father claims there is insufficient evidence to support the finding that father left C.M. with intent to abandon, or that he failed to provide support for the statutory period. We affirm.

P.V. (hereafter, the minor) was adjudicated a ward of the court for possession of marijuana with intent to sell, in violation of Health and Safety Code section 11359. She was placed on formal probation in the custody of her mother. The minor appeals, alleging that a number of the conditions of her probation are improper. We agree with the minor, and we shall order some conditions of probation modified, and another provision partially stricken. With these modifications, we affirm the judgment.

Appellant Wells Fargo Advisors, LLC (Wells Fargo) appeals from a judgment confirming an arbitration award (Code Civ. Proc. §§ 1294 & 904.1, subd. (a)(2)). The arbitration decided a claim filed by respondent Aldrich J. Fernandez against Wachovia Securities, LLC, a predecessor of Wells Fargo. Fernandez filed his claim to recover funds lost in his brokerage account due to alleged breach of fiduciary duty by his broker. The arbitration was held before a panel appointed by the Financial Industry Regulatory Authority (FINRA) and was heard in accordance with FINRA’s rules and procedures. The FINRA panel denied the claims made by Fernandez in their entirety and denied “[a]ny and all relief not specifically addressed herein . . . .”

Plaintiff Kurt Greenway appeals from a judgment dismissing his action against defendant Robert Kent for failure to bring the action to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.)[1] Plaintiff argues that the trial court abused its discretion in determining that plaintiff had not exercised “reasonable diligence” to bring his case to trial within the statutory period.
We conclude the trial court did not abuse its discretion in dismissing the case based on plaintiff’s failure to bring the case within five years. We affirm the judgment of dismissal.

Defendant and appellant Julian Delgado Garcia was convicted on six counts of various forms of sexual molestation of a child, Jane Doe. He contends that his conviction on count 2, sexual penetration of a child under the age of 10, in violation of Penal Code section 288.7, subdivision (b),[1] must be reversed because the prosecution failed to prove that the single act of digital penetration Doe described occurred after the effective date of the statute.
As we discuss below, we agree. We will also correct clerical errors in the abstract of judgment and sentencing minutes.

On April 3, 2011, Abdirisaq Ahmed engaged in acts of sexual intercourse and oral copulation with the victim against her will and by means of force. In 2012, Ahmed entered a negotiated guilty plea to forcible rape (Pen. Code, § 261, subd. (a)(2)) and forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)). The court sentenced him to a stipulated five-year prison term: the three-year lower term for forcible rape and two years (one-third the middle term) for forcible oral copulation. The court imposed a $2,305.50 restitution fine in favor of the City of La Mesa, for which Ahmed and his codefendants were joint and severally liable. The abstract of judgment does not reflect joint and several liability. Ahmed appeals, contending the abstract of judgment must be amended to reflect joint and several liability. Respondent properly concedes the point. We order the abstract of judgment corrected.

This case arises out of plaintiff Alex Lange's alleged loss of personal property after he was arrested for trespassing and vandalism at a property located in Valley Center, California (the subject property). In his third amended complaint, Lange, suing in propria persona, attempted to plead causes of action for conspiracy, conversion, negligence, and intentional infliction of emotional distress against defendants PNC Mortgage (PNC), its representative Kim Haynes, and Sandra Zambito, a prospective purchaser of the property (collectively, defendants).[1]
The arguments advanced in Lange's four-page opening brief are largely unintelligible and irrelevant to the appeal herein. However, it appears Lange is asserting that the trial court erred in sustaining defendants' demurrer because Lange included sufficient allegations to state his claims for conspiracy, conversion, negligence, and intentional infliction of emotional distress against defendants in the third amended complaint. We affirm.

A jury found Jose Gonzales Casas guilty of attempted first degree murder (Pen. Code,[1] §§ 187, subd. (a), 664), assault with a deadly weapon (§ 245, subd. (a)(1)), and first degree burglary (§ 459). The jury also found true an allegation Casas committed the attempted murder willfully, deliberately and with premeditation (§§ 664, subd. (a), 1192.7, subd. (c)). The trial court sentenced him to life with the possibility of parole for the attempted first degree murder conviction and stayed the sentences for the other two convictions under section 654.
Casas appeals, contending we must reverse his convictions because there is insufficient evidence to support them. We conclude there is no merit to this contention and affirm the judgment.