CA Unpub Decisions

Barry F. appeals the judgment terminating his parental rights over M.C. Barry contends the juvenile court found he was an alleged father rather than a biological father, depriving him of due process and standing to contest termination of his parental rights, and the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm.

In 2005 Allen Burt Dickenson entered a negotiated guilty plea to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)). The plea bargain called for a low term lid of 16 months. The trial court suspended sentence and granted Dickenson probation for three years, conditioned on, among other things, he serve 365 days in jail.
In 2007 Dickenson's probation was revoked for failure to pay fines and failure to report to his probation officer. Dickenson admitted violating probation by not reporting to his probation officer. The court formally revoked Dickenson's probation and then reinstated probation under the same terms and conditions until February 8, 2010. The court committed Dickenson to jail for 270 days and gave him credit for serving 216 actual days. Dickenson waived past, present and future Penal Code section 4019 credits.

Keith D. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26, including the denial of his section 388 petition. 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 pursuant to 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 his requests to review the record for error and to address his Anders issue. (Anders v. California (1967) 386 U.S. 738.) Keith D.'s counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied.

A jury found defendant and appellant Steven Lowell Stafford guilty of second degree robbery (Pen. Code,[1] 211, count 1), and two counts of battery ( 242, counts 2, and 3). The trial court found true the allegation that defendant had suffered seven prior prison terms ( 667.5, subd. (b)). The court sentenced him to 10 years in state prison, which consisted of the midterm of three years on count 1, plus seven consecutive one-year terms on the prison priors. With regard to counts 2 and 3, the court ordered defendant to serve 180 days in county jail, but stayed the terms under section 654. On appeal, defendant contends the court erred by admitting evidence of his prior crimes from 2003 and 2004, and by failing to redact prejudicial information from the documents that supported those prior convictions. Court affirm.

Defendant and real party in interest, Kenneth Holtz (Holtz), appeals from a judgment of the trial court granting the petition for writ of mandate by the County of San Bernardino (County).
After the County terminated Holtzs employment as a deputy sheriff, an administrative hearing officer upheld the termination. The Countys three-person Civil Service Commission (Commission) reviewed the hearing officers decision and rejected the recommendation for termination. The County then sought a petition for writ of mandate and the superior court granted the writ, upholding Holtzs termination. On appeal, Holtz argues the trial court erred in finding that the Countys Personnel Rules, and not the MOU applying to sheriffs deputies, controlled the authority of the Commission to accept or reject the findings and recommendation of the hearing officer to terminate Holtzs employment. We agree with the trial court that the Commission abused its discretion by rejecting the recommendation for termination. Court affirm the judgment.

Plaintiff and appellant Fritz G. Beyer appeals from a judgment entered following a grant of nonsuit as to his claims for intentional infliction of emotional distress and intentional interference with prospective economic advantage against defendant and respondent William Boyland. Beyer contends that nonsuit was improper because he submitted sufficient facts to establish a right to recovery under the theories pleaded. Court hold that the trial court properly granted nonsuit on these claims. He also contends that we should read his complaint as encompassing a cause of action for intentional interference with contractual relations. Even if this theory has not been waived or forfeited for failing to assert it below, Court reject this contention. Accordingly, Court will affirm the judgment.

Plaintiff Grant W. Becklund appeals an order denying his motion to disqualify Attorney Kenneth Stream and his law firm, Gresham Savage Nolan & Tilden, from representing defendant corporation, Gabel, Cook & Becklund, Inc., and defendants, Craig Cook and William Gabel, individually. Becklund contends Stream and his law firm should be disqualified because Streams representation of the corporation conflicts with his former representation of Becklund. Becklund further contends Stream should be disqualified because Cooks and Gabels interests are adverse to those of the corporation. Court conclude Becklund has failed to establish that the trial court abused its discretion in denying Becklunds motion for disqualification. There was sufficient evidence supporting the courts finding that Stream never represented Becklund, and the interests of the corporation, Cook, and Gabel (defendants) are not in conflict. The disqualification order is affirmed.

L.C. (mother) appeals from an order of the juvenile court terminating her parental rights to her daughter, A.C.,[1]under Welfare and Institutions Code section 366.26. Mother contends the trial court erred in finding that the Indian Child Welfare Act (ICWA) did not apply because adequate notice was not given. Respondent Riverside County Department of Public Social Services (Department), joined by counsel for minor, contends the ICWA notice was adequate and urges us to affirm the order of the juvenile court. Court find that any error was harmless, and Court affirm.

A jury convicted Yacub Avicenna McClendon of second degree murder (Pen. Code[1] 187; count 1), assault with a semiautomatic weapon ( 245, subd. (b); counts 2, 4, 5 & 6) and possession of firearm by convicted felon ( 12021, subd. (a)(1); count 13). The jury found enhancements for personal and intentional use of a firearm to be true on counts 1, 2, 4, 5 and 6. The court sentenced appellant to an indeterminate term of 15 years to life on count 1, plus 25 years to life for the gun enhancement under section 12022.53, subdivision (d). On count 4, the principal determinate term, appellant was sentenced to nine years, plus a consecutive term of 10 years pursuant to section 12022.5, subdivision (a). On each of counts 5 and 6, appellant was given two years with an enhancement under section 12022.5, subdivision (a), for a consecutive term of three years four months. The sentence on count 2 was stayed. On appeal, appellant contends the section 12022.53, subdivision (d), enhancement to count 1 violates the multiple punishment bar of section 654. He also contends an erroneous true finding on enhancements under section 12022.53, subdivision (b), must be reversed because the enhancements were not charged in the information; and do not apply to counts 4, 5 and 6. We will affirm the judgment.

Appellant, Ellis Carter, pled no contest to assault with a firearm (Pen. Code, 245, subd. (a)(2)). On appeal, Carter contends the court violated the terms of his plea bargain. Court will affirm.

Pursuant to a plea agreement, appellant, Byron Tokumoto, pled guilty to elder abuse (Pen. Code, 368, subd. (b)(1)) and admitted an enhancement allegation that in committing that offense, he personally inflicted great bodily injury that caused the victim to suffer paralysis of a permanent nature or coma-inducing brain injury. (Pen. Code, 12022.7, subd. (b)). The court imposed a prison term of nine years, consisting of the four-year upper term on the substantive offense and five years on the accompanying enhancement. Prior to sentencing, appellant moved to withdraw his plea (plea motion). The court denied the motion. Appellants sole contention on appeal is that the court erred in denying his plea motion.

On September 19, 2008, appellant Larry Vasquez, pursuant to a plea agreement, pled no contest to possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)). Terms of the plea agreement included that appellant would be placed on probation and that the conditions of probation would include the following: he would serve 365 days in the custody of the Fresno County Sheriff (Sheriff), but he would be released on or after November 25, 2008, to enter and complete an in-patient treatment program of at least a six-month duration. On November 7, 2008, the court suspended imposition of judgment for three years and placed appellant on probation for that period. Conditions of probation included that he serve 365 days in the custody of the Sheriff, but he could be released, in the event space became available, on or after November 25, 2008, to complete a six month in patient treatment program at Poverello House.

Defendant Abel Hernandez appeals from an order denying his motion to vacate a 1994 controlled substance conviction. He contends the attorneys that represented him before and at trial failed to provide effective assistance of counsel because they did not investigate his immigration status or seek a disposition of the prosecution avoiding the adverse immigration consequences. Alternatively, defendant attacks his waiver of a jury trial on the ground he did not knowing and intelligently waive this constitutional right. Since defendant is procedurally barred from now asserting these contentions and, in any event, his claims lack merit, Court affirm the trial courts ruling.

In this case, defense counsel hired a psychologist to evaluate defendant and perhaps testify as an expert witness. During discovery, counsel gave a copy of the psychological evaluation to the prosecutor, but, before doing so, he inexplicably failed to redact defendants statements to the psychologist and thus waived the psychotherapist-patient and attorney-client privileges protecting them. Although later at trial, defendant exercised his Fifth Amendment right against self-incrimination and did not testify, his own words to the psychologist introduced by the prosecutor became the sword that struck a fatal blow to his defense. Providing that weapon to the prosecution could not have been a reasonable trial tactic, and, therefore, Court conclude that counsel rendered ineffective assistance that undermines our confidence in the jurys verdict.