CA Unpub Decisions

V.W. appeals the orders entered at the six-month review hearing held under Welfare and Institutions Code section 366.21. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review under People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny V.W.'s request to review the record for error and to address his Anders issue. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, V.W.'s counsel also asks this court to exercise its discretion to provide him the opportunity to file a supplemental brief in propria persona. The request is denied.

In these consolidated petitions for writ of mandate, petitioners Laura Zizzo and Stacee Botsford, both detectives for the San Diego Police Department (Department), contend the superior court abused its discretion by disqualifying their attorneys, former San Diego deputy city attorneys who had previously represented Department in employment-related litigation. One of the attorneys, Carol Leimbach, had gone on to work for Department as its equal employment opportunity (EEO) program manager for an approximately five-year period, and the other, Mark Stiffler, had associated in as Leimbach's cocounsel for purposes of petitioners' present superior court law suits. In part, petitioners maintain the information obtained by Leimbach and Stiffler during their prior representation of Department was not material to petitioners' claims in the present litigation that the chief of police and real party in interest, City of San Diego (City), failed to take all reasonable steps to prevent sexual harassment in the workplace from occurring (Gov. Code,[1] § 12940, subds. (k), (j)(1)) and City did not show sufficient similarity in factual and legal elements between the past and present representations to warrant their disqualification.
We conclude City's showing warrants attorney Leimbach's disqualification in both actions. We further conclude that attorney Stiffler is vicariously disqualified due to his association as Leimbach's cocounsel. Accordingly, we deny the writ petitions.

In June 2011, in case No. SCD234643, Donald Earl Garrett entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted having served two prior prison terms (Pen. Code, § 667.5, subd. (b)). The court placed him on three years' probation and later formally revoked probation. In April 2012, in case No. SCD236730, Garrett entered a negotiated guilty plea to robbery (Pen. Code, § 211). In May, the court reinstated probation in case No. SCD234643 and placed Garrett on three years' probation in case No. SCD236730. Garrett appeals. We affirm.

Appointed counsel for defendant Roger Carl Oney has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no errors and shall affirm the judgment.

Christopher S., father of the minors, appeals from the juvenile court’s orders terminating his parental rights as to Catherine and Q. and implementing a plan of long-term foster care as to Daniel. (Welf. & Inst. Code,[1] §§ 366.26, 395.) He challenges a jurisdictional finding that provided the basis for the denial of reunification services and thus the basis for the juvenile court’s subsequent section 366.26 orders terminating parental rights and implementing long-term foster care. We shall reverse the section 366.26 orders and remand for a new disposition hearing to determine whether father is entitled to reunification services.

The trial court sustained the Westwood Unified School District’s (District) demurrer without leave to amend, finding that the District’s Board policy 2121, patterned on Government Code section 53260’s mandatory provisions, provides the exclusive administrative remedy for termination of Superintendent Henry Beitz’s contract for illegal practices. The ruling, in effect, means that section 53260, and therefore policy 2121, bar litigation of a claim for damages as a matter of law if the District terminates a superintendent’s contract because it believes the superintendent has engaged in fraud, misappropriation of funds, or other illegal fiscal practices and its belief is confirmed by an independent audit. (Gov. Code, § 53260, subd. (b)(1).)[1]

A jury in Sacramento County found defendant Yuriy Penkov guilty of unlawfully possessing ammunition.[1] The trial court (Sacramento County) sentenced him to state prison for one-third the midterm (eight months) to run consecutive to a four-year term for a previous drug conviction from Yolo County, denying defendant’s request to impose a lower term on the drug offense or designate the ammunition offense as the principal term. Defendant appeals, contending the trial court incorrectly found it lacked jurisdiction to designate defendant’s ammunition offense the principal term at the time of sentencing. As we will explain, we conclude that the trial court properly sentenced defendant.

A jury found defendant Robert Sengphinith guilty of assaulting his mother with a deadly weapon -- a meat cleaver (count 2; "Pen. Code" Pen. Code,[1] "§ 245, subd. (a)(1)" § 245, subd. (a)(1)). The jury found defendant not guilty of first degree robbery (count 1; "§ 211" § 211) and making criminal threats (count 3;"§ 422" § 422). In a bifurcated proceeding, the trial court found true an allegation defendant had a prior serious felony conviction within the meaning of "section 667, subdivision (a)" section 667, subdivision (a), that also qualified as strike under "section 667, subdivisions (b)-(i) and 1170.1" section 667, subdivisions (b)-(i), and section 1170.12. Defendant was sentenced to an aggregate term of 11 years in state prison, consisting of the middle term of 3 years, doubled for the prior strike, plus 5 years pursuant to section 667, subdivision (a).

A jury found defendant Dennis Alva Adams not guilty of assault with intent to commit rape of an intoxicated person (count 1) or assault with intent to commit rape of an unconscious person (count 3), but guilty of the lesser included offense of misdemeanor assault (Pen. Code, § 240)[1] as to both counts. The jury also found defendant guilty of misdemeanor sexual battery (count 7) and not guilty of the remaining charges (counts 2, 4, and 6).[2] Defendant was placed on 36 months informal probation, ordered to serve 30 days in county jail, stayed pending appeal, and ordered to register as a sex offender pursuant to section 290.
Defendant appeals. In his opening brief, he contends, among other things, that his convictions for simple assault (counts 1 and 3) must be reversed because simple assault is a lesser included offense to misdemeanor sexual battery. With this court’s permission, defendant filed a supplemental opening brief, contending his convictions--all misdemeanors--are barred by the applicable one-year statute of limitations set forth in section 802, subdivision (a), and must be dismissed. The People agree both that “the assault convictions are necessarily included lesser offenses to the sexual battery count,” and that the complaint on its face indicates the sexual battery offense is time-barred. The People request that we “remand the matter back to the trial court for a hearing to determine whether [the sexual battery offense is] time-barred with orders to vacate the judgment if time-barred by the statute of limitations, but otherwise to affirm the conviction for misdemeanor sexual battery . . . .”[3]

Defendant Bobbie Beal was convicted of possessing hydrocodone for the purpose of sale. (Health & Safety Code, § 11351.) He appealed, contending that the trial court erred in denying his challenge pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 by refusing to consider whether two jurors had been excused on the basis of their race on the grounds that the challenge was untimely. We agreed and remanded the matter for the trial court to evaluate the prosecutor’s reasons for challenging the two jurors and determine whether the prosecutor exercised her peremptory challenges in a permissible fashion. (People v. Beal (Feb. 24, 2012, B231175) [nonpub. opn.].) After conducting a hearing, the trial court found that the challenges were race-neutral and reinstated the judgment. Defendant appeals and we affirm.

Michael W. (Father) appeals from an order of the juvenile court terminating his parental rights to his daughters, S.W. and A.W. He contends that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), and the analogous California statutes governing custody proceedings involving Indian children. (Welf. & Inst. Code, § 224 et seq.)[1] We conclude that the inquiry conducted was not in full compliance with the requisites of the statute. We reverse for the limited purpose of full compliance with ICWA, as explained below.

Defendant Derrell Woolbright appeals from the judgment entered following his open plea to the court of “no contest” to the following charges: sexual battery by restraint (Pen. Code, § 243.4, subd. (a))[1]; sexual penetration by a foreign object (§ 289, subd. (a)(1)); violation of a protective order (§ 273.6, subd. (a)); kidnapping (§ 207, subd. (a)); and two counts of false imprisonment by violence (§ 236). Defendant admitted having suffered three prior convictions for serious or violent felonies (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)). Defendant admitted having served three prior prison terms (§ 667.5, subd. (b)). He also admitted an allegation that he had suffered two prior convictions within the meaning of section 667, subdivision (a)(1).

A modification decision.

Earl Graham Ward appeals the judgment entered after he pled no contest to two counts of grand theft by embezzlement (Pen. Code,[1] § 487, subd. (a)). Appellant was sentenced to 16 months in state prison and ordered to pay a total of $126,159.63 in victim restitution. The trial court also ordered him to pay $500 in attorney fees pursuant to section 987.8. Appellant contends the evidence is insufficient to support the attorney fee order. In response, the People acknowledge the court did not hold a hearing on the issue of attorney fees and made no express finding on appellant's ability to pay. They claim, however, that the court implicitly made such a finding and that there is sufficient



evidence in the record to support that finding. We agree with appellant.[2] Accordingly, we shall reverse the attorney fee order and remand for further proceedings.[3]