CA Unpub Decisions

Appellant Roger Lee Walker appeals from the trial court’s denial of his motion to set aside and/or withdraw his plea of no contest to indecent exposure (Pen. Code, § 314).[1]
Appellant has asked this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
We dismiss the appeal as abandoned in accordance with People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).

A jury convicted appellant Freddie Black Esco, Sr., of attempted second degree robbery (Pen. Code, §§ 211, 664),[1] second degree burglary (§§ 459, 460), and petty theft with a prior theft conviction (§§ 484, 666). The court sentenced appellant to state prison.
On appeal, appellant contends: (1) the court erred by denying his motion to impeach a prosecution witness with preliminary hearing testimony pursuant to Evidence Code section 1235; (2) the court failed to instruct the jury with CALCRIM No. 3519, the instruction used when greater and lesser included offenses are separately charged; and (3) he is entitled to 42 days of additional presentence conduct credits.
We reverse appellant’s petty theft conviction (§ 484, 666) because it is a lesser included offense of attempted robbery (§§ 211, 664). As modified, we affirm the judgment.

This is an appeal from the conviction by jury of defendant David Simon of five felony offenses related to his sexual abuse of a minor. We affirm.

Defendant was committed to an indeterminate term of confinement as a sexually violent predator (SVP). He raises several constitutional challenges to his confinement. We affirm the order of commitment on the basis of existing decisions of the Supreme Court and Courts of Appeal in which these challenges have been resolved against him as a matter of law.

Michael Anthony Siler appeals from an order following a jury trial finding him to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welfare & Institutions Code[1] § 6600 et seq. (SVPA)) and committing him to the Department of Mental Health (DMH) for an indeterminate term. Defendant contends: (1) the trial court violated his Sixth Amendment right to counsel by refusing to suspend SVP until it found he had been restored to competency; (2) the trial court erred by instructing the jury on his refusal to testify; (3) the SVPA is void for vagueness; (4) there was insufficient evidence he had a qualifying diagnosed mental disorder; (5) the trial court erred by failing to instruct the jury sua sponte that they were required to unanimously agree on the qualifying diagnosed mental disorder; (6) the trial court erred by failing to instruct the jury sua sponte that an SVP commitment is for an indefinite time period; (7) the use by prosecution experts of actuarial tests in assessing his risk of reoffending violated defendant’s rights to due process; (8) the DMH used an invalid evaluation protocol to subject him to SVP proceedings; (9) amendments to the SVP laws under Proposition 83 (Jessica’s Law) violate his constitutional rights to due process and equal protection. Having considered defendant’s contentions, we conclude none have merit and, accordingly, affirm the judgment.

Appellant Christopher Daniel Madrid appeals from a judgment entered after a jury convicted him of being a felon in possession of a firearm, (Pen. Code, § 12021, subd. (a)(1))[1] carrying a concealed weapon while an active member of a criminal street gang, (§ 12025, subd. (b)(3)) and being a felon in possession of ammunition (§ 12316, subd. (b)(1)). He contends the judgment must be reversed because (1) the carrying a concealed weapon count is not supported by substantial evidence, (2) the trial court instructed the jurors incorrectly, and (3) the court erred when sentencing him. We agree appellant’s conviction for carrying a concealed weapon while an active member of a criminal street gang is not supported by substantial evidence. Accordingly, we will reverse the judgment and remand for a new sentencing hearing.

On November 5, 2009, the Merced County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602)[1] alleging that appellant, M.S., Jr., a minor, committed three counts of felony vandalism (Pen. Code, § 594, subd. (a)(1)) and one count of resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. On December 9, 2009, appellant admitted the allegations of the petition. On January 6, 2010, the court granted appellant deferred entry of judgment (DEJ) (§ 790 et seq.) and set a “deferred entry of judgment review” hearing for January 5, 2011.
By memorandum dated December 27, 2010, the Merced County Probation Department (Probation Department) informed the juvenile court that appellant had been arrested on vandalism charges and had thereby “picked up an Adult Case,” and recommended that appellant’s DEJ be extended “until there is a finding in the Adult Court case.” On January 5, 2011, the court, noting in its written order “ADULT MATTER PENDING,” ordered DEJ extended to April 6, 2011, and set a review hearing for that date. Thereafter, the court extended appellant’s DEJ four more times.
In a memorandum dated June 7, 2012, submitted to the juvenile court, the Probation Department stated the following: Appellant’s adult criminal case was not yet resolved—it was set for trial—but appellant had paid the previously ordered restitution in full, had completed the previously ordered 96 hours of community service, and “appears to have done well on [DEJ] in that he is attending college and working full time.” It was “recommended [sic] that [appellant] has successfully completed [DEJ].”
In court on June 8, 2012, the juvenile court ordered DEJ “lift[ed]” and adjudged appellant a ward of the court. The court then immediately terminated appellant’s wardship.
On appeal, appellant contends the court erred in lifting DEJ and adjudging him a ward of the court. He bases this contention, in turn, on claims that the statute that provides for lifting of DEJ is unconstitutionally vague, the procedure set forth in the DEJ statutory scheme for lifting DEJ violates due process principles, the evidence was insufficient to support the lifting of DEJ, and that in lifting DEJ the court failed to comply with various provisions of the California Rules of Court.[2] The People concede that the court failed to comply with lifting-of-DEJ procedures set forth in the rules of court, and that therefore this court should vacate the judgment and remand the matter to the juvenile court with an instruction to dismiss the November 2009 wardship petition. Appellant, in a letter submitted in lieu of a reply brief, agrees with the People’s proposed disposition of the appeal. We accept the People’s concession. Accordingly, we reverse and direct the juvenile court to dismiss the instant wardship petition.

Appellant Philip Steven Melman was employed by respondent PDF Solutions, Inc. (PDF) from 1998 until 2009, when he was terminated during a reduction in force from his position as vice president of investor relations and strategic initiatives. Melman filed a wrongful termination action against PDF and its chief executive officer (CEO), respondent John Kibarian (hereafter, sometimes collectively PDF), alleging that PDF’s decision to terminate him was based upon his physical disability. His complaint included two causes of action for disability discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.),[1] as well as causes of action for “failure to prevent discrimination,” fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful discharge in violation of public policy.

Defendant Day | Eisenberg (D.E.) appeals from a judgment confirming an arbitration award in favor of plaintiff Mark B. Plummer against codefendant Andrew Bisom.[1] The arbitrator also found Plummer’s claims against D.E. were meritless. D.E. contends the court erred by denying D.E. costs as a prevailing party at arbitration. Because the arbitrator denied D.E.’s requested costs, the trial court properly denied D.E.’s motion to correct the arbitration award to award D.E. costs.

James Ernest Bledsoe appeals from a judgment after a jury convicted him of numerous sexual offenses. Bledsoe argues the trial court erred in denying his request to represent himself. We disagree and affirm the judgment.

Lloyd Harvey Mason pleaded no contest to charges of possessing methamphetamine for sale, possessing concentrated cannabis, and being a felon in possession of a firearm. He asks us to review sealed materials related to his motions to quash and traverse a search warrant in order to determine whether the trial court erred when it refused to disclose the identity of a confidential informant on whom the police relied. We have reviewed all the materials in the record and find no grounds for disturbing the trial court’s rulings.
Mason also challenges the trial court’s order that he serve his entire sentence in state prison, even though the sentence included a longer term for a county jail offense and a shorter concurrent term for a state prison offense. We construe the 2011 Realignment Legislation[1] as mandating state prison for the entire sentence in this situation, consistent with our recent decision in People v. Torres (2013) 213 Cal.App.4th 1151 (Torres). We affirm the judgment.

After his probation was revoked for the fourth time, appellant Steven Richard Baze was ordered to serve his previously suspended sentence of four years in state prison. In this appeal, Baze seeks additional time credit for (1) time he spent at an inpatient treatment program, and (2) conduct credit for time he spent in county jail, based on the more generous accrual rate of former Penal Code section 2933, which was the statute in effect at the time his sentence was executed.[1]
The People concede that the trial court erred in determining that Baze was categorically ineligible for custody credit for the time he spent in the inpatient treatment program, but assert the matter must be remanded to the trial court to determine whether the program was sufficiently restrictive to be considered custodial.
We remand the matter to the trial court to determine whether Baze was “in custody” during the period he was subject to a probation officer’s directive ordering him to participate in the inpatient treatment program. (§ 2900.5, subd. (a).) We conclude, however, that Baze is not entitled to additional conduct credit. The trial court correctly calculated his conduct credit pursuant to former section 4019, the statute in effect at the time he was in presentence custody in 2009.

Defendant and appellant S. B. (the “minor”) is a ward of the juvenile court in placement at a foster facility after the court found true allegations that he committed solicitation for murder (Pen. Code, § 653f, subd. (b)). The minor had asked friends to help him kill a boy whom he believed had stolen his bicycle. In this appeal, the minor argues, and the People agree, that the court failed to determine whether the minor was suitable for Deferred Entry of Judgment (DEJ). The prosecutor indicated in the Form JV-750 “Determination of Eligibility” that the minor fulfilled each of the statutory requirements for DEF, but erroneously checked the box indicating the minor was “ineligible.” Further, the prosecutor did not issue the Form JV-751 Citation and Written Notification for Deferred Entry of Judgment – Juvenile. To remedy this error, the minor asks this court to vacate the juvenile court’s jurisdictional findings and dispositional orders and remand so that the juvenile court can consider whether to grant DEJ. The People agree. As discussed below, we vacate the jurisdictional findings and dispositional orders and remand to the juvenile court to conduct a hearing under Welfare and Institutions Code section 790[1] to determine whether the minor is suitable for DEJ.

A.R. (minor, born March 2011) came to the attention of plaintiff and respondent Riverside County Department of Public Social Services (the department) on July 7, 2011, upon receipt of a report of a welfare check completed by law enforcement. Mother had a previous history with the department in which minor’s older sibling, A.B., had been removed due to allegations of physical abuse, general neglect, and mother’s mental health condition; mother’s reunification services as to A.B. had already been terminated. Since A.B.’s case was still pending, the department filed a juvenile dependency petition adding minor to the same case as A.B. The juvenile court removed minor from mother’s custody and denied mother reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b).[1] On May 10, 2012, the juvenile court terminated mother’s parental rights.
On appeal, mother contends the juvenile court prejudicially erred in finding the Indian Child Welfare Act (ICWA) did not apply. Mother additionally argues she was deprived of her constitutional and statutory rights to due process when the juvenile court appointed a guardian ad litem (GAL), purportedly without a noticed hearing and without mother’s participation in making its determination of mother’s mental incompetency. We affirm the judgment.