CA Unpub Decisions

Appellant Benjamin Buehrle appeals from an order directing him to pay the attorney for respondent Alyona Bondarenko (appellant's former girlfriend and the mother of his son, Beau) $5,000.00 in sanctions pursuant to Family Code section 271.[1] He contends the order constituted an abuse of discretion because: (1) the court failed to identify the sanctionable conduct; (2) Ms. Bondarenko provided inadequate notice of her sanctions request; and (3) the court failed to consider his ability to pay the sanctions when issuing the order. We conclude that appellant's arguments lack merit, and we affirm.

Bradley Terrance Wilson appeals from a judgment extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2970.[1] Once again,[2] his attorney has filed a brief seeking our independent review of the record, pursuant to Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.); People v. Wende (1979) 25 Cal.3d 436 (Wende) (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. Appellant's counsel represented in the opening brief that she wrote to appellant and advised him of the filing of a Ben C. brief, and his opportunity to file his own supplemental brief within 30 days after the filing of the opening brief. We have not received a supplemental brief from appellant.
Because Wende review is still not available under these circumstances, we will dismiss the appeal.

Appellant Manuel Navarette appeals from the sentence imposed following his jury convictions for separate counts of felony and misdemeanor child endangerment (Pen. Code, § 273a, subds. (a), (b))[1], misdemeanor driving under the influence (Veh. Code, § 23152, subds. (a), (b)), and his no contest plea to driving without a valid driver's license (Veh. Code, § 12500, subd. (a)). He contends on appeal that certain fines and penalties imposed at sentencing were not â€

Defendant John Scoby is on probation after pleading guilty to embezzlement. He appeals from the trial court's refusal to prohibit the probation department from informing his employer of the nature of his crime. We find no merit in defendant's claims that the court abused its discretion when it refused to direct the department not to notify defendant's employer, or that the probation department was acting pursuant to a blanket policy rather than exercising its judgment about notification. We therefore affirm.

Appellant Kenneth Ryan Whipple appeals from his convictions for reckless driving while evading police (Pen. Code, § 2800.2, subd. (a)[1]), and assault with a deadly weapon (§ 245, subd. (a)(1)) in Case No. SCWLCRCR 09-89483 (Case No. 09-89483). He also challenges the sentences imposed in Case No. 09-89483, and in Case No. SCWLCRCR 08-86164 (Case No. 08-86164) following his guilty plea to one count of auto theft in that case. He contends on appeal that: (1) there was insufficient evidence upon which the jury could convict him of either felony in Case No. 08-86164; (2) there was instructional error on the issue of the mental state necessary for the assault conviction; and (3) there were sentencing errors both in imposing consecutive sentences for evasion and assault, and in calculating his entitlement to custody credits.
We agree that appellant is entitled to additional custody credits based on a recent amendment to section 4019, and we order his abstract of judgment amended accordingly. Otherwise, we affirm his convictions and sentence.

John E. Davis appeals following his conviction by a jury of three counts of possession of heroin, possession while armed with a firearm, and possession of a firearm by an ex-felon. The jury also found several enhancement allegations true. Appellant contends the evidence was insufficient to support his conviction for possession of heroin while armed with a loaded firearm and the arming enhancement alleged as the count 1 possession charge. We will affirm.

Keith Stamps was convicted by a jury of first degree murder with a firearm. He contends his conviction is not supported by substantial evidence, he suffered prejudice when the jury was erroneously instructed with CALCRIM No. 361 on his failure to explain or deny inculpatory evidence, the trial court failed to hold an adequate hearing on his Marsden motion, and his counsel was ineffective because he failed to request a jury instruction that provocation may reduce first degree murder to second degree murder by negating premeditation and deliberation. We reject Stamps's arguments and affirm the judgment.

Victor Woodard was tried before a jury and determined to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1] In this appeal from the order committing him to the State Department of Mental Health (DMH) for an indeterminate period, he contends: (1) the current SVP (sexually violent predator) scheme is unconstitutional; (2) the evidence was insufficient to support the jury's determination that he meets the criteria for an SVP; (3) the court abused its discretion in limiting defense counsel's cross-examination of the prosecution experts regarding the total compensation they receive for their work on the SVP panel; and (4) the trial court should have held a hearing on his alleged request for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We agree with appellant that under People v. McKee (2010) 47 Cal.4th 1172, he is entitled to a remand so the trial court can consider his claim that his indeterminate commitment under the current SVP scheme violates his right to equal protection under the law. We reject the remainder of his arguments.

Defendant Nolan Matthew Cardwell appeals a judgment entered upon a jury verdict finding him guilty of sale or transportation of marijuana (Health & Saf. Code,[1] § 11360, subd. (a)) (count one); possession of marijuana for sale (§ 11359) (count two); and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) (count three). Defendant was placed on probation for three years. He contends the evidence was insufficient to support the verdicts and that the trial court committed instructional error that prevented him from presenting fully his medical marijuana defense. We affirm the judgment.

In June 2008, a jury convicted appellant Jose Carlos Cardenas of attempted murder and assault with a deadly weapon; convicted his codefendant, appellant Oscar Alamilla Moreno, of assault with a deadly weapon; and sustained gang and great bodily injury enhancements for each conviction. (Pen. Code,[1] §§ 186.22, subd. (b)(1), 187, subd. (a), 245, subd. (a)(1), 664, 12022.7, subd. (a).) The trial court sentenced Cardenas to 20 years in state prison: a seven-year middle term for attempted murder, a three-year great bodily injury enhancement, and a 10-year gang enhancement, with sentence on the assault count stayed. (§§ 245, subd. (a)(1), 654.) Moreno received 15 years in state prison: a two-year lower term for assault with a deadly weapon, a three-year great bodily injury enhancement, and a 10-year gang enhancement. The trial court struck a prior felony conviction of unlawful driving or taking of a vehicle alleged against Moreno. (Veh. Code, § 10851, subd. (a).)
On appeal, both appellants claim there was insufficient evidence to establish that the B Street gang (B St.) was a criminal street gang. We conclude the evidence was ample and hence affirm the judgment.

Bankers Insurance Company (surety) appeals from the denial of its three-part motion to vacate forfeiture, exonerate a $20,000 bail bond, and set aside a summary judgment. The issue presented by this appeal is whether surety's motion, based on finding the defendant in custody in Nevada, was timely under Penal Code section 1305[1] when it was filed 230 days after the mailing of a notice of forfeiture.
The only part of section 1305 pertaining to motions to vacate forfeiture and exonerate a bond provides in part that â€

Defendant Ezell Banks, Jr. pleaded no contest to nine counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), three counts of felony false imprisonment (Pen. Code, §§ 236, 237), one count of reckless evading (Veh. Code, § 2800.2, subd. (a)), and one count of felony vandalism (Pen. Code, § 594). He also admitted allegations that he had taken property of a value exceeding $65,000 (Pen. Code, § 12022.6, subd. (a)(1)) in the commission of the robbery counts, had personally used a firearm (Pen. Code, §§ 12022.5, 12022.53, subds. (b), (e)(1)) in the commission of the robbery and false imprisonment counts, and had committed the robbery and false imprisonment counts for the benefit of a criminal street gang (Pen. Code, § 186.22, subds. (b)(1)(A), (b)(1)(C)). His pleas and admissions were entered pursuant to a â€

Defendant Daniel Richard Loyola pleaded no contest to narcotics charges and admitted various allegations including an allegation that he had suffered a prior strike conviction. The trial court subsequently struck the prior strike conviction finding under Penal Code section 1385 and imposed a 16-month state prison term. The court also found that defendant was ineligible for enhanced conduct credit under Penal Code section 4019 due to the fact that he had suffered a prior serious felony conviction. On appeal, defendant contends that the trial court had discretion to disregard the prior serious felony conviction and award him enhanced conduct credit. He seeks a remand to give the trial court the opportunity to do so. We conclude that the trial court had no such discretion, so a remand is unnecessary.

The parties to this appeal are former spouses, appellant Jeanne M. Welch (Jeanne) and respondent Robert H. Welch (Robert). Jeanne challenges two family court orders, which were made following an evidentiary hearing in a post-judgment dissolution proceeding. The first order denied Jeanne's motion for rescission of an agreement concerning spousal support, which was brought on the ground of Robert's fraud. As to that order, Jeanne asserts both that her right to rescission was established in a prior appeal and that her fraud claim is not precluded by the doctrine of res judicata, as the trial court found. The second order granted Robert's request to modify spousal support, which was brought on the ground of changed circumstances. As to that order, Jeanne asserts that the trial court lacked subject matter jurisdiction to modify support since Robert had a pending appeal, and, in any event, the modification lacks evidentiary support.
For reasons explained below, as to the first order, we reverse and remand the matter for further proceedings, based on our determination that Jeanne's rescission claim is not barred by res judicata. As to the second order, for support modification, we affirm.