CA Unpub Decisions

Minor and appellant Reginald W. appeals from a judgment sustaining a petition alleging he received stolen property. He contends that there is insufficient evidence he knew the property was stolen and that the trial court failed to make the requisite findings for its order removing him from parental custody. We reject these contentions, but we remand because the juvenile court failed to declare the offense a misdemeanor or a felony. We otherwise affirm the judgment.

Attorneys Henry M. Lee and Robert Myong appeal from an order imposing sanctions in the amount of $3,500 against Lee and $1,500 against Myong for failure to file a notice of related case. We agree with appellants that the trial court abused its discretion in imposing sanctions and reverse the sanctions order.

The minor and appellant Daniel N. contends on appeal that he met the requirements for deferred entry of judgment (DEJ) under Welfare and Institutions Code section 790 et seq.,[1] but the juvenile court failed to determine his eligibility for DEJ and instead ordered him to juvenile hall. The People concede that the court erred and that the matter must be remanded for compliance with section 790 et seq. We agree that the judgment must be reversed and the matter remanded for a determination of Daniel’s suitability for DEJ.
Daniel also requests that we review the sealed record of the juvenile court’s Pitchess[2] examination of police personnel records to determine whether the court abused its discretion by failing to order disclosure. We find that the juvenile court complied with its obligations under Pitchess and did not abuse its discretion.

Plaintiffs are former employees of Overhill Farms, Inc. (Overhill), a company that manufactures frozen food products for sale to distributors and wholesalers. Plaintiffs asserted wage and hour claims against Overhill on behalf of a purported class made up of Overhill’s nonexempt (hourly) employees who worked in identified departments between July 1, 2005, and the present.
The trial court denied plaintiffs’ motion for class certification, concluding that the named plaintiffs were not adequate class representatives and individual issues predominated over common ones. Plaintiffs appeal, contending that the trial court applied incorrect legal standards and substantial evidence did not support its conclusions.
Our review of a denial of a motion for class certification is limited—we must affirm an order supported by substantial evidence unless the trial court used improper criteria or made erroneous legal assumptions. Further, we defer to the trial court’s credibility determinations. Because we find that, in light of the trial court’s credibility determinations, substantial evidence supported the trial court’s conclusion that individual issues predominated over common ones, we affirm.

Andre Wicker appeals from the judgment following his conviction by jury of failure to register as a sex offender (Pen. Code, § 290, subd. (b)).[1] The trial court sentenced him to three years in state prison. Appellant challenges the sufficiency of the evidence to support his conviction, and contends the court committed prejudicial error by permitting read back of a closing argument in which the prosecutor misstated the requisite intent for a failure to register. He further claims he is entitled to additional days of presentence credit, and respondent correctly concedes the point. We shall modify the judgment accordingly. In all other respects, we affirm the judgment.

A jury found defendant and appellant Randal Ruiz (defendant) guilty of first degree burglary and second degree burglary, and the trial court sentenced him to concurrent 35 years-to-life sentences on each count. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting that this court independently review the entire record to determine if there are any issues, which if resolved in defendant’s favor, would require reversal or modification of the judgment. Accordingly, we notified defendant that he could brief any grounds of appeal, contentions, or arguments he wanted us to consider. As discussed below, notwithstanding two extensions of time within which to file a brief, defendant failed to timely submit a brief prior to the cause being submitted for decision.
Based on our independent review of the entire record, we conclude that there are no arguable issues on appeal and, for that reason, affirm the judgment of conviction.

Appellant Fred D. Dorton[1] purports to appeal several orders in this child support proceeding. Because we lack jurisdiction, we dismiss.

Keyosha Jarmon appeals from the judgment entered after a jury convicted her on two counts of robbery. She challenges the sufficiency of the evidence to support the convictions. We affirm.

Appellant Ricardo Hernandez was convicted of one count of murder (Pen. Code,[1] § 187, subd. (a)), and six counts of attempted murder (§§ 664, 187, subd. (a)), with gang and firearm allegations found true (§ 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e)(1)). On appeal, he contends the trial court erred in (1) excluding evidence of third-party culpability, (2) denying his Marsden[2] motion, (3) failing to remove a juror, and (4) instructing the jury with CALCRIM No. 600. Additionally, Hernandez alleges ineffective assistance of counsel. Finding no prejudicial error, we affirm.

Appellants Timothy D. Naegele and his law firm, Timothy D. Naegele & Associates, appeal from the judgment confirming an attorney-client fee arbitration award in favor of respondents Raymond H. Albers and Deanna J. Albers.[1] Following Naegele’s representation of the Alberses in a civil action, a fee dispute arose between the parties. The Alberses invoked their statutory right to arbitrate the dispute pursuant to California’s Mandatory Fee Arbitration Act (MFAA; Bus. & Prof. Code,[2] § 6200 et. seq.), but Naegele refused to attend the arbitration, claiming the arbitrators lacked jurisdiction over the dispute based on a forum selection clause in the fee agreement. After the arbitrators issued an award in the Alberses’ favor, Naegele filed a rejection of the award and request for trial in a pending federal action that he had brought against the Alberses in the United States District Court for the District of Columbia. Over the next four years, the federal court stayed that action at various times without reaching the merits of Naegele’s request for trial after arbitration or the Alberses’ motion to dismiss for lack of jurisdiction.
Shortly before the expiration of the four-year statute of limitations (Code Civ. Proc., § 1288), while the federal action was being stayed, the Alberses filed a petition to confirm the arbitration award in a new action commenced in Los Angeles County Superior Court. Naegele subsequently filed a motion for judgment on the pleadings in which he contended that the California action was barred as a matter of law by the Alberses’ failure to timely serve him with the petition and by the federal court’s exclusive jurisdiction over the dispute based on the forum selection clause in the fee agreement and Naegele’s filing of the request for trial in the federal action. The state trial court denied Naegele’s motion for judgment on the pleadings and thereafter granted the Alberses’ petition to confirm the arbitration award. For the reasons set forth below, we affirm.

Defendants and appellants Eric Ceballos and Cesar Ortega were tried together before separate juries. Ceballos’s jury found Ceballos guilty of first degree murder (Pen. Code, § 187, subd. (a)[1]), assault with a semiautomatic firearm (§ 245, subd. (b)), and shooting at an occupied motor vehicle (§ 246). The jury found true the allegation that Ceballos committed each of the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b) (gang enhancement allegation)); and the allegations that in the commission of the murder and shooting at an occupied motor vehicle offenses, a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally discharged a firearm proximately causing great bodily injury or death (§12022.53, subds. (d) & (e)(1)). Ortega’s jury found Ortega guilty of first degree murder (§ 187, subd. (a)), attempted murder (§§ 664/187, subd. (a)), and shooting at an occupied motor vehicle (§ 246). As to all offenses, Ortega’s jury found true a gang enhancement allegation (§ 186.22, subd. (b)), and the allegations that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally discharged a firearm proximately causing great bodily injury or death (§12022.53, subds. (d) & (e)(1)). The trial court sentenced Ceballos and Ortega to state prison terms of 97 years to life and 84 years to life respectively.

Defendant Cary L. Calvin appeals his conviction of one count of possession for sale of a controlled substance (Vicodin) (Health & Saf. Code, § 11351), one count of possession for sale of cocaine base (Health & Saf. Code, § 11350, subd. (a)), one count of possession of marijuana for sale (Health & Saf. Code, § 11359), and one count of destruction of evidence (Pen. Code, § 135).[1] He contends (1) the evidence is insufficient to support his conviction of possession of Vicodin for sale, (2) the trial court abused its discretion in admitting evidence of text messages from his cell phone, and (3) the trial court erred in imposing a three-year enhancement. We affirm the judgment, and remand for resentencing.

At a six-month review hearing, the juvenile court found that S.N.’s children were at substantial risk of detriment if returned to her custody. (Welf. & Inst. Code, § 366.21, subd. (e).)[1] S.N. appeals, arguing that the juvenile court’s finding is not supported by substantial evidence.[2] We affirm.

This case involves sexual conduct that began as a consensual encounter, but then became non-consensual when Earl Kevin Moore wanted the victim to engage in sexual conduct with another woman. The victim did not want to do this, and appellant forced her to do so, despite her resistance. The defense consisted of appellant’s testimony that the entire encounter was consensual.
Moore was charged with two counts of forcible oral copulation in concert (Pen. Code, § 288a, subd. (d)(1)), [1] penetration with a foreign object (§ 289, subd. (a)(1)(A)), and attempted rape by a foreign object in concert (§ 264.1, subd. (a)). A jury found Moore guilty on all four counts and Moore was sentenced to a prison term of 60 years to life.
On appeal, Moore alleges the following errors: (1) the court improperly allowed testimony concerning prior instances of non-consensual sexual activity; (2) the court improperly responded to a question by the jury during deliberation, removing an element of the count of attempted rape by a foreign object in concert from the jury’s consideration; (3) the court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when Moore requested a continuance, at sentencing, so that retained counsel could replace his appointed counsel; and (4) the sentence included two five-year enhancements for prior convictions, pursuant to section 667, subdivision (a)(1), even though only one enhancement was authorized, because the prior convictions were not brought and tried separately.
The People concede the sentencing error that Moore alleges and we strike one of the two five-year enhancements.
We conclude that in responding to the jury’s query concerning the count of attempted rape with a foreign object in concert, the court erred and removed an element of that count from the jury’s consideration. Because we are unable to conclude that, absent the error, the jury would have convicted Moore on this count beyond a reasonable doubt, we must reverse Moore’s conviction on the count of attempted rape with a foreign object in concert. Because the sentence for that count was concurrent with the sentence on another count, our decision does not affect Moore’s aggregate sentence.
We find no merit in Moore’s other assertions of error.
Moore has also filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. Because Moore fails to make a prima facie showing of prejudice, we have denied his petition in a separate order.