Wasserman's Appellate Summaries
June 6, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
Comer v. Stewart
Case No. 98-99003
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-COMPETENCE TO WITHDRAW APPEAL
Comer was absent from the courtroom throughout his 1988 state trial for capital murder. After seven days of hearing evidence, a jury convicted him of one count of first degree murder, three counts of armed robbery, two counts of aggravated assault, two counts of kidnapping, two counts of sexual abuse, and three counts of sexual assault. Comer was physically present in the courtroom for the first time on the day of sentencing. He was shackled to a wheelchair and, except for a cloth draped over his genitals, he was naked. His body was slumped to one side and his head drooped toward his shoulder. He had visible abrasions on his body. After asking both the court deputy and a prison psychiatrist whether Mr. Comer was conscious, the state trial judge sentenced him to death. His federal habeas corpus petition was denied and his appeal is pending. The State of Arizona has filed a motion to dismiss Comer's appeal, contending this court has no jurisdiction to determine any aspect of his case because he has recently stated that he no longer wants this or any other federal court to hear it. Comer has also filed a pro se motion to dismiss his appeal, in which he asserts many of the State's arguments and claims that he has not authorized his counsel to file any pleading on his behalf. Mr. Comer's counsel opposed these motions, which is the issue the Ninth Circuit addressed.
HELD: The Court retained jurisdiction of the motion, but remanded to the district court to conduct an evidentiary hearing as to whether Mr. Comer has expressly or impliedly consented to the filing of any pleadings in federal court. The Court expressed grave concerns that a mentally disabled man may be seeking this court's assistance in ending his life, and therefore refuse to allow the State of Arizona to execute him at least until the district court holds an evidentiary hearing to determine if he can validly withdraw his consent to proceed with his appeal.
Alberto-Gonzalez v. Immigration and Naturalization Service
Case No. 97-70473
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-WAIVER OF DEPORTATION-REQUIREMENT OF CONVICTION OF TWO CRIMES OF MORAL TURPITUDE AND A SENTENCE OF ONE YEAR OR MORE
Gonzalez entered the United States in 1965 when he was four years old. He was convicted of burglary in June and October of 1986 and was placed in deportation proceedings.
The Immigration Judge granted his request for waiver of deportation under the Immigration and Nationality Act. In 1991, he was convicted for receiving stolen property. In 1994, he was sentenced to 79 days in prison for felony burglary. In 1994, the INS issued an Order to Show Cause for deportation for having committed two crimes of moral turpitude, based on the 1991 and 1994 convictions. At the hearing Gonzalez admitted the allegations. His application for a waiver of deportation was denied. During the pendency of this appeal, IIRIRA and the Antiterrorism and Effective Death Penalty Act were enacted. The BIA dismissed Gonzalez's appeal in 1997, finding that he was statutorily ineligible for a waiver.
HELD: At the time deportation proceedings were initiated against Gonzalez, the statute provided, that any alien who is convicted of a crime involving moral turpitude and either is sentenced to confinement or is confined therefore in a prison or correctional institution for one year or longer is deportable. Since on one conviction he was only sentenced to 79 days and the sentence cannot be determined for the other alleged conviction. Remanded to the BIA to consider whether Gonzalez is eligible for waiver of deportation.
Department of Health and Human Services v. Kathleen K.
Case No. C032964
California Court of Appeal, Third District
FAMILY LAW-DUE PROCESS-RIGHT TO A CONTESTED REVIEW HEARING ON DEMAND
In November 1998, the juvenile court sustained petitions holding minors dependent children, and ordered DHHS to provide appellant with reasonable reunification services. Kathleen K's participation in reunification services was inconsistent. She completed a series of parenting classes. She failed to test on a regular basis for illegal drug use and did not respond to a referral for individual counseling. Moreover, she had not obtained a residence and failed to maintain contact with the social worker. At the six-month review hearing counsel for Kathleen K. requested a contested hearing on the issue whether she should receive an extended period of reunification services. The juvenile court denied the request for a contested hearing.
HELD: At each of the three six month review hearing the review hearings it is statutorily presumed the child will be returned to parental custody unless the juvenile court finds by a preponderance of the evidence that returning the minor will create a substantial risk of detriment to the well-being of the minor. Moreover, it is the agency, rather than the parent, that bears the burden of establishing detriment. At every review hearing, the juvenile court is obliged to determine whether the agency offered the parent reasonable reunification services. The review hearings are the essential mechanisms by which a parent may be foreclosed from any further relationship with the child. It is an abuse of discretion for the juvenile court to deny a parent a contested review hearing when the parent has tendered an adequate statement explaining the basis of a request for a contested hearing. Denial of the right to a contested review hearing based on an allegedly inadequate or even a nonexistent offer of proof violates due process. Reversed and remanded.
In Re The Marriage of Hall
Case No. G023735
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-CHILD SUPPORT-DEVIATION FROM GUIDELINES-REQUIREMENT FOR STATING REASON FOR DEVIATION FROM GUIDELINE SUPPORT
Robin, a certified public accountant, and Robert, a product manager for Unisys Corporation. They have one minor child, Stacey, about 11 years old at the time of the initial child support order in January 1996. The initial order required Robert to pay Robin $940 a month, based on gross income to Robert of $10,953 per month and to Robin of $8,634 a month, and a time share factor of 20 percent. In December 1997, Robert filed an order to show cause seeking a reduction in support based on an increase in the time share factor to 35 percent, and a possible increase to 40 percent if he also obtained more summer visitation time. Robert's income and expense declaration listed his gross average monthly income over the previous 12 months as $11,707 Robin filed her own order to show cause for modification of child support, seeking guideline support, and asserting that her average gross income for the past 12 months was $6,373, later amended to show $8,031. The trial judge signed an order requiring Robert to pay Robin $836 a month plus 8 percent "of all earnings over and above the sum of $10,300 per month.
HELD: The Court held that his is one of those rare "judgment roll" appeals that merits a reversal, essentially because of the rigid structure of California's child support statutes combined with the requirement that any deviation from formula guidelines be sua sponte articulated by the trial judge. Here, the trial court made a child support order which would require payment of an arbitrary percentage of one parent's income above a certain level without regard to fluctuations in the other parent's income. The order differs on its face from the formula guideline set forth in Family Code and cannot be saved as an exercise of discretion because the court did not make the requisite statements required by statute. That statute is clear that a court cannot exercise its discretion in making a child support order without saying why, either in writing or on the record. Reversed and remanded.
City of Oceanside v. The Superior Court (MacDonald)
Case No. D034606
California Court of Appeal, Fourth District, Division One
PERSONAL INJURY-FIREFIGHTERS RULE-APPLICATION TO PUBLICLY EMPLOYED LIFEGUARD-EXCEPTIONS TO FIREFIGHTERS RULE
In July 1996 City lifeguards, including Ferris, and Camp Pendleton lifeguards, including MacDonald, conducted a joint operation to rescue a jet ski collision victim who was stranded in ocean water adjacent to a Camp Pendleton jetty.. After the lifeguards made only limited progress in transporting the victim along the jetty rocks, Ferris asserted authority over the joint rescue operation and directed MacDonald and other lifeguards to lower the victim off the rocks onto a floating sled behind a jet ski, which would ferry the victim to a nearby harbor patrol boat. While MacDonald stood in the water to assist the victim off the rocks and onto the sled, a wave pushed her against the jetty rocks. She sustained back and other injuries. MacDonald filed a personal injury action against Defendants, alleging Ferris was negligent in directing her to follow an unreasonable rescue plan. In response to defendants' motion for summary judgment and adjudication the trial court found the firefighter's rule did not apply to the facts alleged in this case. It further found government immunity under the Government Code did not apply because Defendants' alleged actions were not basic policy decisions.
HELD: Under the firefighter's rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. The legal principle involved is assumption of the risk. The firefighter's rule is subject to a common law exception. The firefighter does not assume every risk of his or her occupation. The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene. The Civil Code narrows the exceptions by eliminating the requirement that the injury result from subsequent independent acts of misconduct committed after the defendant becomes aware of the officer's presence. There is no compelling reason to distinguish publicly-employed lifeguards from publicly-employed firefighters, police officers and emergency medical personnel for purposes of application of the firefighter's rule. The common law exception should not apply in this case to the actions of a lifeguard in the course of conducting a joint rescue operation. The jet ski victim's actions necessitated Ferris's presence at the scene and the joint rescue operation. The same public policy considerations underlying the application of the firefighter's rule should also apply to exonerate a fellow lifeguard whose presence and actions are in furtherance of the joint rescue operation for that victim. A peremptory writ of mandate issued directing the superior court to vacate its order denying petitioners' motion for summary judgment.
People v. Bonner
Case No. D030163
California Court of Appeal, Fourth District, Division One
ORDER
Modification of opinion filed May 9, 2000, not effecting the judgment.
Wasserman's Archived Appellate Summaries
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