CA Unpub Decisions

Defendant Samuel Covarrubias filed a notice of appeal after the trial court found he violated his postrelease community supervision (PRCS) and ordered him to serve 90 days in jail. His appointed counsel filed a brief summarizing the case, but advised this court he found no issues to support an appeal. We gave appellant 30 days to file a written brief on his own behalf, but he has not responded. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.

S.V. (Mother) appeals from a judgment terminating her parental rights with respect to her four-year-old daughter Olivia. She contends the juvenile court erred in denying her request for an evidentiary hearing on her petition for modification and by failing to apply the so-called “benefit exception” to termination. Finding these contentions unmeritorious, we affirm the judgment.

Plaintiffs Lauren Whalley and Marysol Rosales filed a putative class action for the alleged failure by defendants The Wet Seal, Inc. and The Wet Seal Retail, Inc. to timely pay wages upon termination of employment, alleging violations of Labor Code sections 201 and 202, unfair competition (Bus. & Prof Code, § 17200 et seq.; UCL) and, by Rosales in a representative capacity, for civil penalties under the California Private Attorney General Act (Lab. Code, § 2699 et seq.; PAGA). Upon motion by defendants, the court ordered plaintiffs to arbitrate their individual claims and ruled their class and representative claims were barred.
On appeal plaintiffs raise five issues,[1] i.e., defendants waived their right to compel arbitration, Rosales’s arbitration agreement is unenforceable for lack of mutuality, the class claims are not barred because the agreements contained an implied agreement to arbitrate them, if the order compelling arbitration is affirmed, it must be on a classwide or representative basis, and the claim for injunctive relief for unfair competition cannot be arbitrated.
We conclude the PAGA cause of action cannot be arbitrated individually or arbitrated in a representative capacity and reverse that part of the order. The remainder of the order is affirmed.

Miguel Angel Modesto was convicted of one count of robbery for taking a bicycle with force (Pen. Code, § 211[1]), and one count of promoting felonious conduct by members of a street gang, a crime sometimes called street terrorism. (§ 186.22, subd. (a).)[2] In this case, the street terrorism count was based on the theory he took the bicycle for the benefit of his gang, the “Family Mob.” However, in supplemental briefing the Attorney General’s office has recognized that in light of People v. Rodriguez (2012) 55 Cal.4th 1125, 1139, and the absence of any evidence Modesto acted collectively with other gang members, the street terrorism count cannot stand – the crime only applies to actions done collectively with other gang members. (Ibid.)
That leaves remaining the two arguments Modesto originally raised in his opening brief as the subject of this appeal: (1) Whether there was substantial evidence Modesto used force to take the bicycle and (2) whether the trial judge’s comments during the trial evidenced judicial bias.

Defendant Mike Bondiek appeals following a conviction of driving under the influence of alcohol. He argues there was insufficient evidence to find him guilty, and further claims the prosecutor committed prejudicial misconduct by failing to admonish two witnesses not to refer to excluded evidence. He also contends he is entitled to additional presentence credits due to a change in the relevant statute which he argues should be applied retroactively. We find that none of these arguments have merit, and therefore affirm.

Cristian B., a minor, appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed felony assault with a deadly weapon involving personal infliction of great bodily injury, felony elder abuse, and misdemeanor resisting arrest. Cristian contends the aggregate maximum term of confinement calculated by the juvenile court as part of its dispositional order violates Penal Code section 654.[1] Respondent concedes error in this regard. We find the concession is appropriate and modify the order to reflect proper application of section 654. As modified, the order is affirmed.

Makayla B., a minor at the time of the underlying proceedings, appeals the imposition of a probation condition which restricts her from leaving the State of California without written permission from her probation officer. The condition was imposed by the Fresno County Superior Court, sitting as a juvenile court, after it found Makayla had violated section 242 of the Penal Code (battery) and adjudged her a ward of the court. She now contends the travel restriction is an unreasonable condition of probation and thus constitutes an abuse of discretion by the juvenile court, or alternatively, that the condition is unconstitutionally overbroad as a matter of law. We conclude the first ground for appeal has been forfeited and the latter argument has no merit. Accordingly, the judgment is affirmed.

Defendant Leslie Zelman Chadd pled no contest to assault by means likely to cause great bodily injury (Pen. Code, § 245, former subd. (a)(1), now subd. (a)(4))[1] and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to four years in prison and imposed various fines and fees, including a $296 fee for a presentence probation report pursuant to section 1203.1b. On appeal, defendant contends (1) the trial court failed to inform him of his right to contest imposition of the fee and (2) there was insufficient evidence he could afford to pay the fee. We agree with the People that defendant has forfeited the claims by failing to object in the trial court.

Shawnee Butler died from a gunshot wound inflicted by a gun in defendant’s control. Defendant argues the prosecution failed to prove the absence of heat of passion. He also contends the prosecutor prejudicially misstated the law on heat of passion. We agree the prosecutor misstated the law during closing argument, but hold that no prejudice resulted. We disagree with the remainder of defendant’s contentions, and affirm.

A jury convicted appellant Ricky Marshall Flynn of forcible sodomy, lewd or lascivious acts with a minor, and assault with intent to commit oral copulation by force. He contends his convictions should be reversed because the trial court (1) erred in excluding prior statements made by the victim regarding sexual activity, which were offered to challenge the victim’s credibility and as an explanation for the physical state of the victim, (2) erred in excluding evidence of the victim’s reputation for defiance and violence, (3) had a sua sponte duty to instruct the jury on the lesser included offense of nonforcible sodomy, (4) erred in refusing a special instruction that addressed Flynn’s police interview and its admissibility, and (5) abused its discretion when it denied a motion for a mistrial.
Flynn also asks this court to correct the abstract of judgment, which fails to state the breakdown of the aggregate amount of fees imposed at sentencing, and to review the school records of the victim to determine if the trial court released all documents referencing dishonesty, sexual activity, violent activity, illicit drug use, lack of sobriety, or other misbehavior.

On March 23, 1995, a jury convicted defendant George Herman Robinson of robbery (count 1 – Pen. Code, § 211)[1] and evading police (count 2 – Veh. Code, § 2800.2).[2] In a bifurcated proceeding thereafter, a jury found true allegations a principal in the robbery was armed with a firearm as to the count 1 offense (§ 12022, subd. (a)(1)) and that defendant suffered 11 prior strike convictions (former § 667, subds. (b)-(i)) and two prior prison terms (former § 667, subd. (a)). On May 17, 1995, the trial court sentenced defendant to an indeterminate term of imprisonment of 25 years to life.[3]

On April 5, 2010, defendant and appellant Rafael Ceja Valles, Jr., pleaded nolo contendere to one count of attempted murder under Penal Code[1] sections 664 and 187, subdivision (a); and one count of assault by means of force likely to cause great bodily injury under section 245, subdivision (a)(1). Defendant also admitted an allegation that he caused great bodily injury in the commission of the attempted murder under section 12022.7, subdivision (e). In exchange, the parties stipulated that defendant would receive a sentence of 11 years in state prison, consisting of seven years for the attempted murder conviction, three years for the great bodily injury enhancement, and one year for the assault conviction.
On the same day, the trial court sentenced defendant in accordance with the terms of the plea agreement.[2]
On April 30, 2013, defendant filed a motion for modification of his sentence “pursuant to Proposition 36 Reform Act of 2012, Penal Code 1170(d), 1181, 1260.” On May 13, 2013, the trial court denied defendant’s petition. The court found that defendant did not satisfy the criteria for resentencing under section 1170.126, subdivision (e), because he had been convicted of attempted murder with a great bodily injury enhancement, a violent and serious offense, and he had not been sentenced under the Three Strikes law.
On May 24, 2013, defendant filed his timely notice of appeal.

In this classic case of “buyer’s remorse,” defendant and appellant Sandra Lilliana Contreras seeks reversal of her conviction by way of guilty plea to three counts of assault with a deadly weapon and one count of leaving the scene of a vehicle accident. (Pen. Code, § 245, subd (a)(1); Veh. Code, § 20001, subd. (a).)
We find that defendant’s appeal is not cognizable, because the trial court correctly refused to issue a certificate of probable cause.

Defendant and appellant Aiesha Latrice Jones pleaded guilty to receiving stolen property (Pen. Code, § 496, subd. (a)), and was placed on three years’ probation. The court also imposed a restitution fine of $200 and a probation revocation restitution fine, the latter of which was stayed unless probation was revoked. (Pen. Code, §§ 1202.4, subd. (b), 1202.44.)
Some 20 months later, in April 2010, probation was ordered revoked and a bench warrant issued. Shortly thereafter, a misdemeanor complaint was filed against appellant alleging a violation of Vehicle Code sections 23152, subdivision (a), and 23222, subdivision (b), as well as another resulting violation of probation. When appellant was eventually brought before the court in December 2012, she admitted an “obey all laws” violation and the trial court imposed a felony sentence of two years.[1] At this time the court also informed appellant that “[y]ou have to pay [a] $240 restitution fine.”[2]