P. v. Walker CA1/5

Filed 3/20/13 P. v. Walker CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A135700 v. (Alameda County ROGER LEE WALKER, Super. Ct. No. C165684)

Defendant and Appellant. _____________________________________/

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).

1 Unless otherwise noted, all further statutory references are to the Penal Code. The lower court and the parties inadvertently referred to section 314.1 — rather than to section 314 — throughout the proceedings. (See In re King (1984) 157 Cal.App.3d 554, 556, fn. 1, overruled on another point in People v. Noriega (2004) 124 Cal.App.4th 1334 (referring to section 314, subd. (1) as “314.1”).) 1

FACTUAL AND PROCEDURAL BACKGROUND In 2009, appellant pleaded no contest to indecent exposure (§ 314). He waived his right to appeal the conviction and to “make any motions” in the case. The trial court determined appellant knowingly and voluntarily waived his constitutional rights and sentenced him to five years felony probation and 10 months in jail. The court ordered appellant to register pursuant to section 290 as a condition of probation. In December 2010, appellant admitted violating probation by failing to register pursuant to section 290 and the court sentenced him to 16 months in custody, all of which appellant had already served. The court ordered appellant released from custody and placed on parole. The court told appellant, “[i]f you violate parole, you can go back to prison for up to a year for each violation.” In March 2011, the prosecution filed a petition to commit appellant as a Sexually Violent Predator (SVP) under Welfare and Institutions Code section 6600 et seq.2 On January 28, 2012, two days before appellant was to be released from parole, the Board of Parole Hearings placed a 45-day hold on appellant under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6601.3). In February 2012, appellant moved to set aside the no contest plea, to vacate the judgment, to set aside the admission of the probation violation, and to dismiss the forthcoming petition for commitment as a SVP. He argued the plea was not knowing and voluntary because he was unaware of the potential of an indeterminate SVP commitment at the time of the plea. In May 2012, appellant moved to dismiss the SVP petition as untimely. He also argued the Board of Prison Terms did not have jurisdiction to issue the 45-day hold pursuant to Welfare and Institutions Code section 6601.3. Appellant supported the motions to set aside, withdraw his plea, and dismiss the SVP petitions with a declaration 2 The prosecution argued appellant qualified as a SVP because he committed the qualifying offenses of rape in 1976 (§ 261) and assault with intent to commit rape (§ 220) in 1982 as set forth in Welfare and Institutions Code section 6600, subdivision (b) and because he suffers from a mental disorder that makes him likely to engage in sexually violent criminal behavior unless he receives treatment in custody. The court issued a detention order and set a date for a probable cause hearing.