CA Unpub Decisions

The campus of a middle school is not an unlimited public forum for First Amendment purposes. Accordingly, a police officer does not violate the civil rights of a parent at the school, who is distributing leaflets on its campus without permission, by detaining the parent briefly at the request of the principal, and warning the parent that he will be arrested if he does not leave. The trial court therefore correctly granted summary judgment against such a parent in his suit for civil rights violations against the police officer and his employing municipality.

This appeal has been taken from a judgment following a jurisdictional hearing that included orders by the juvenile court that terminated dependency jurisdiction, denied appellant reunification services, and granted the mother exclusive physical and legal custody of the minors. Court agree with appellant that the dispositional orders are flawed by the juvenile courts failure to grant him a dispositional hearing and the right to present evidence. Court therefore reverse the judgment in part.

Dennis Hawkins appeals from a judgment of the Solano County Superior Court following the courts revocation of his probation after his plea of no contest to possession of cocaine base. (Health & Saf. Code, 11350, subd. (a).) Appellant asserts, and respondent Attorney General concedes, that the court erred in imposing a second restitution fine of $400 pursuant to Penal Code section 1202.4,[1]where it had originally imposed a $200 restitution fine pursuant to section 1202.4 upon granting probation. Respondent also concedes that the court erred in imposing and suspending a parole revocation fine pursuant to section 1202.45 in the amount of $400, as the mandatory stayed parole restitution fine imposed under section 1202.45 must be identical in amount to the restitution imposed under section 1202.4.
The judgment is affirmed.

E.O. (mother) appeals from orders terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughter, N.W. and selecting a permanent plan of guardianship for her son, U.B.[1] Mother challenges the juvenile courts denial, without a hearing, of a section 388 petition she brought to reopen reunification services. Mother also argues the court was unable to ascertain N.s current wishes such that there was insufficient evidence to support the courts finding that she was adoptable. On review, Court disagree with mother and will affirm.

A modification decision.

In May 2005, Jay Richard Settanni (Settanni) was charged by information with eight counts of committing lewd acts with a child under the age of 14. (Pen. Code, 288, subd. (a).)[1] The acts were alleged to have occurred between January 1, 2000, and May 28, 2004, and to have involved a single child, E.D.[2] The information further alleged that with respect to count 1 of the information Settanni had digitally penetrated the childs vagina or rectum, an enhancement allegation that if proven precludes a grant of probation. ( 1203.066, subd. (a)(8).) However, the district attorney dismissed this enhancement allegation on grounds of insufficiency of the evidence at the conclusion of the prosecutions case in chief. On February 14, 2007, a jury convicted Settanni on all counts, and less than a month later, the trial court sentenced Settanni to a nine year prison term. Settanni filed a timely appeal. The judgment is therefore reversed and the matter remanded for a new trial. Court dismiss the appeal as moot because it addresses trial issues not relevant to the case on remand.

Original proceeding; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition denied in part and granted in part. Parole denial vacated. Matter remanded to Board of Parole Hearings.

Plaintiffs Alan Schwartz, Lloyd Cymrot, Mark Robbins and Harvey Lerchin filed suit, pursuant to the Uniform Fraudulent Transfer Act, to recover monies paid by a third party to defendant Dell Furano. The parties appeal and cross-appeal from a judgment in favor of plaintiffs for $375,000, plus prejudgment interest compounded annually. Court remand the matter for the recalculation of prejudgment interest. In all other respects, Court affirm.

Kenneth Raymond Warren appeals from a judgment upon a jury verdict finding him guilty of four counts: (1) driving under the influence of alcohol (DUI) with a prior felony DUI conviction within 10 years (count one) (Veh. Code,[1] 23152, subd. (a), 23550.5); (2) driving with a blood-alcohol level of 0.08 percent or greater with a prior felony DUI conviction (count two) ( 23152, subd. (b), 23550.5); (3) DUI after having accumulated three or more DUI prior convictions within 10 years (count three) ( 23152, subd. (a), 23550); and (4) driving with a blood-alcohol level of 0.08 percent or greater after accumulating three or more prior DUI convictions within 10 years (count four) ( 23152, subd. (b), 23550). In a bifurcated proceeding, the trial court found true the allegations that defendant suffered three misdemeanor DUI convictions and one felony DUI conviction, but struck the alleged prior strike conviction. Defendant contends his convictions for counts three and four must be reversed because the counts are not different crimes but simply constitute sentencing provisions. The Attorney General concedes that reversal of counts three and four is warranted. Court reverse the convictions on counts three and four, but otherwise affirm.

A jury convicted defendant of assault in violation of Penal Code section 245, subdivision (a)(1).[1] Defendant appeals and argues that the lower court committed prejudicial error by failing to instruct the jury on self-defense and by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We conclude that the trial court did not commit instructional error. However, as to defendants latter argument, we reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and to conduct further proceedings as authorized by law.

As directed on October 28, 2008 by the California Supreme Court on remand to this court, we hereby vacate our decision in this matter filed on February 28, 2008. This opinion constitutes our reconsideration of the cause in light of In re Lawrence (2008) 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241, as further directed by the Supreme Court.
In 1984, Justo Avalos was convicted of second degree murder and sentenced to an indeterminate prison term of 15 years to life. In 2006, the Board of Parole Hearings (Board) found Avalos suitable for parole, however, Governor Arnold Schwarzenegger reversed the decision. Avalos filed a petition for a writ of habeas corpus challenging the Governors decision as not supported by some evidence. Court agree and grant the petition as prayed.

The plaintiff filed a complaint for defamation, and the defendants filed special motions to strike pursuant to Code of Civil Procedure section 425.16 which the trial court granted. The plaintiff appeals. Because we find the trial court erred in determining the plaintiff had failed to make a prima facie showing of facts sufficient to support a judgment in her favor if the evidence in her favor is credited regarding one cause of action against each defendant, Court reverse in part and affirm in part.

S.L., who is the alleged father of A.M., appeals from the order that re-instated the termination of his parental rightsunder Welfare and Institutions Code section 366.26.[1] Specifically, S.L. assails the juvenile court conclusion that notice of the proceedings was properly given as required by the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. 1901-1963). Respondent Department of Children and Family Services (the Department) argues, among other contentions, that S.L. lacks standing to challenge notice under the ICWA. Court agree S.L. has no standing to assert the issue because he is an alleged father and there is no evidence before this court S.L. took official action to acknowledge or establish his paternity. Accordingly, Court dismiss the appeal.

In several cases consolidated for purposes of trial, a jury convicted defendant Michael Antonio Placencia of carjacking and related counts. The trial court imposed an aggregate sentence of nine years four months in state prison. On appeal, defendant contends the trial court erred by (1) denying his Batson/Wheeler[1]motion, and (2) validating the prosecutions definition of reasonable doubt in violation of defendants constitutional right to due process. Court reverse as to the first contention and remand for further proceedings consistent with this opinion. In all other respects, Court affirm the judgment.