CA Unpub Decisions

On June 8, 2011, a jury found defendant and appellant Allix Anastassia Hurtado guilty of burglary under Penal Code[1] section 459 (count 1), and fraudulent use of an access card under section 484g, subdivision (a) (count 2), with a true finding that the value of the property taken was more than $400.
At the sentencing hearing on August 5, 2011, the trial court reduced defendant’s felony conviction in count 2 to a misdemeanor because the threshold amount required for a felony charge, due to a change in the law, had increased from $400 to $950. The court sentenced defendant to state prison for two years on the burglary conviction, but ordered execution of the sentence suspended and placed defendant on probation for 36 months. One of the probation conditions required that defendant inform the probation officer of her place of residence and reside at a residence approved by the probation officer.
On appeal, defendant contends that the probation condition requiring her to reside at a residence “approved” by the probation officer is unconstitutional. We agree and modify this probation condition. In all other respects, we affirm the judgment.

This action arises out of a failed real estate development project in Palm Springs, California. P.S. Racquet Club Properties, LLC (Borrower), the owner/developer, borrowed money from Vineyard Bank. Borrower entered into an agreement with plaintiff and respondent HJH Construction, Inc. (HJH) wherein HJH agreed to serve as the general contractor on the project. When Borrower defaulted on the loan, Vineyard Bank attempted to foreclose on the property. Simultaneously, HJH recorded its mechanic’s lien and initiated this action. Subsequently, the FDIC closed Vineyard Bank and sold its interest and liabilities with respect to the loan to Borrower to defendant and appellant California Bank & Trust (Lender). HJH’s action was tried before the court and judgment was entered in its favor, awarding damages, attorney fees and costs. The judgment is based on a stop notice against Lender and foreclosure on mechanic’s lien. Lender appeals.

Sean A. appeals orders denying his petition for modification under Welfare and Institutions Code section 388[1] and terminating his parental rights to his children under section 366.26. We affirm.

Marisol Villasenor appeals from a judgment confirming an arbitration award in favor of Verizon Wireless (VAW), LLC (Verizon). Villasenor also appeals from the court's earlier order granting Verizon's motion to compel arbitration.[1] We reject Villasenor's contentions and affirm the judgment.

A jury found Curtis Lee Williams and Theresa Ann Lowery guilty of selling a controlled substance (Health and Saf. Code, § 11352, subd. (a))[1] (count 1), transporting a controlled substance (§ 11352, subd. (a)) (count 2), possessing a controlled substance for sale (§ 11351) (count 3), and two counts of furnishing a drug without a prescription (Bus. and Prof. Code, § 4059) (counts 4 and 5). The jury also found Lowery guilty of obtaining controlled substances by fraud or deceit (§ 11173, subd. (a)) (count 6). At sentencing, the trial court stayed imposition of sentence and placed each defendant on formal probation for a period of three years, subject to various conditions.
On appeal, Williams contends that there is insufficient evidence to support the jury's verdicts finding him guilty of counts 1, 2, 3, and 5. Lowery contends that there is insufficient evidence to support the jury's verdict finding her guilty of count 6. We reject these claims and affirm the orders placing Williams and Lowery on probation.

A jury found Ahmed Ali guilty of one count of murder (Pen. Code, § 187, subd. (a))[1]; four counts of attempted murder (§§ 187, subd. (a), 664); two counts of shooting at an inhabited structure or vehicle (§ 246); one count of being a convicted felon in possession of a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully possessing a firearm (former § 12316, subd. (b)(1)). The jury further made true findings on firearm and criminal street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)). The trial court sentenced Ali to an indeterminate prison term of 135 years to life, plus a determinate term of 60 years.

Petitioner N.M., mother of the dependent minor, seeks an extraordinary writ ( ADDIN BA xc <@ru> xl 31 s BOLJAV000001 xpl 1 l "Cal. Rules of Court, rule 8.452" Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the disposition hearing denying reunification services and setting a ADDIN BA xc <@st> xl 44 s BOLJAV000002 l "Welfare and Institutions Code section 366.26" Welfare and Institutions Code[1] section 366.26 hearing. Mother contends that the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) ( ADDIN BA xc <@st> xl 24 s BOLJAV000003 xpl 1 l "25 U.S.C. § 1901 et seq." 25 U.S.C. § 1901 et seq.). Mother also requested a stay of proceedings in the respondent court. We granted a stay of the section 366.26 hearing in the respondent court pending the resolution of this writ petition and permitted real party in interest San Joaquin County Human Services Agency to late file opposition to the writ petition. We shall issue a peremptory writ of mandate directing the juvenile court to vacate its ICWA findings and conduct further proceedings to determine whether ICWA notice is complete.

Appointed counsel for defendant Christopher Alan Long asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will correct an error in the abstract of judgment, but we find no other arguable error that would result in a disposition more favorable to defendant. Accordingly, we will affirm the judgment.

Appointed counsel for defendant James David Woodall has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall order the abstract of judgment amended to correct a minor error in pronouncement of sentence and affirm the judgment.

On appeal, defendant Kenneth Wayne Thomas contends the trial court’s failure to award additional conduct credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) constitutes a violation of equal protection. Following the California Supreme Court’s decision in People v. Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (Lara), we reject defendant’s contention. We affirm the judgment.

In recent years, there has been considerable litigation over the regulation, and in some cases the outright ban, of medical marijuana dispensaries. This case concerns an outright ban. However, as we explain post, to resolve this case, we need not reach the issue of whether a local government may ban marijuana dispensaries, an issue currently pending before our Supreme Court.[1]
The trial court granted the City of Auburn a preliminary injunction against Sierra Patient and Caregiver Exchange, Inc. and Richard Miller (collectively Miller), after Miller obtained a license for a flower shop, but opened a marijuana dispensary, forbidden by an Auburn ordinance. On appeal, Miller contends that Auburn’s dispensary ban is preempted by the Compassionate Use Act of 1996 (CUA) and the Medical Marijuana Program (MMP). (Health & Saf. Code, §§ 11362.5, 11362.7 et seq.)[2]
As we will explain, the record in this case, viewed in the light favorable to the trial court’s order, shows Miller committed a nuisance per se by surreptitiously opening a dispensary. Further, Miller did not establish irreparable harm. Because Miller’s business license violation independently shows a nuisance per se, we shall affirm the order granting Auburn a preliminary injunction to preserve the status quo pending trial.

Defendant Julius Lee Ruff pled no contest to corporal injury to the parent of one’s child (Pen. Code, § 273.5, subd. (a))[1] and admitted a prior prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to five years in state prison and awarded 121 days of presentence credit (81 actual and 40 conduct).
On appeal, defendant contends (1) the trial court erred in relying on a prior serious felony conviction that was neither pled nor proved to reduce his conduct credits, and (2) he is entitled to additional conduct credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) under equal protection principles. Following the California Supreme Court’s decision in People v. Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (Lara), we reject both contentions. We affirm the judgment.

On appeal, defendant Steven Quinn contends the trial court’s failure to award additional conduct credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) constitutes a violation of equal protection. Following the California Supreme Court’s decision in People v. Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (Lara), we reject defendant’s contention. We affirm the judgment.
BACKGROUND[1]
Defendant committed his offenses on January 24, 2011. He pled no contest to first degree burglary (Pen. Code, § 459, subd. (a)).[2] His conviction for first degree burglary is a serious felony. (§ 1192.7, subd. (c)(18).) The trial court sentenced defendant to a stipulated term of two years in state prison and awarded 284 days of presentence credit (190 actual and 94 conduct).
The trial court sentenced defendant under the September 28, 2010, revision of the presentence credit law. Under that version, a defendant with a current or prior serious or violent felony conviction was entitled to two days of conduct credit for every four days of presentence custody. (Former §§ 2933, 4019.)

A modification decision.