Wasserman's Appellate Summaries
June 9, 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.
Mission Housing Development v. City and County of San Francisco
Case No. A085462
California Court of Appeal, First District, Division Five
CIVIL-APPEAL-LIMITATION OF AUTHORITY OF TRIAL COURT TO EXCEED DIRECTIONS OF APPELLATE COURT AFTER REMAND
Mission Housing Development are 11 corporations and limited partnerships that own low income housing projects located in San Francisco. They filed a complaint against San Francisco seeking a partial refund of the property taxes they had paid for the 1982-1983 through 1987-1988 tax years. The case was tried by a judge who ruled Taxpayers were not entitled to any refund. The matter was reversed on appeal and remanded. The trial court bifurcated the valuation issues from the issue of whether Taxpayers were entitled to an award of attorney fees. On the valuation question, the court ruled Taxpayers were entitled to have their opinions of value, as stated in their application for reduction in assessment, inserted on the assessment rolls for certain tax years. It denied the request to have their opinions of value inserted on the assessment rolls for other years. The court also determined the amount that San Francisco must refund to Taxpayers. The trial court further found Mission was not entitled to an award of attorney fees.
HELD: The Court's prior opinion could not have been more clear that Mission was only entitled to have their opinions of value inserted on the tax rolls only with respect to tax years 1985-1986 and 1986-1987. A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal of the judgment on appeal and add conditions, which it assumes the reviewing court should have included. The trial court correctly declined to order San Francisco to value Taxpayers' property as requested, and, since Mission has not timely appealed the court's decision to deny their request for attorney fees that issue cannot be addressed. On the cross-appeal, the court erred when determining the amount that San Francisco must refund to Taxpayers and will reverse that portion of the judgment.
In Re Eduardo D./People v. Eduardo D.
Case No. B134643
California Court of Appeal, Second District, Division Five
JUVENILE-GRAND THEFT-TAKING OF PROPERTY FROM PERSON-NECESSITY FOR STATEMENT ON RECORD AS TO WHETHER FELONY OF MISDEMEANOR OFFENSE
Eduardo D. assaulted another juvenile with a pipe. When the victim escaped the assault he left behind his backpack and cap. Eduardo took the backpack and cap. The juvenile court sustained one of the allegations of a petition finding a lesser included offense of grand theft from a person rather than second degree robbery as originally charged. The juvenile court ordered that the minor, Eduardo, be removed from the custody of his parents and placed in camp. The juvenile court further ordered that the minor not be held in physical confinement for a period exceeding three years.
HELD: Grand theft is theft committed when property is taken from the person of another theft from the person contemplates that the property is upon or attached to the person or carried or held in physical possession. The victim did not abandon the backpack and his cap. The minor's wrongful deed set the taking of the victim's possessions in motion. As a result, there is substantial evidence the theft was from the person of the victim. The juvenile court did not orally indicate on the record whether the crime was a felony or misdemeanor. Nor did the juvenile court use any language that demonstrated an awareness of its discretion to make such a determination. The minute order reflects that it was a felony and the minor's period of confinement was set not to exceed the felony period of three years. This alone does not satisfy the requirements for a specific statement. Remanded for clarification of whether felony of misdemeanor and affirmed in all other respects.
People v. James
Case No. A083198
California Court of Appeal, First District, Division Three
CRIMINAL-DOMESTIC VIOLENCE-ADMISSION OF EVIDENCE OF PRIOR DOMESTIC VIOLENCE-ERRONEOUS INSTRUCTIONS ON EVIDENCE OF PRIOR DOMESTIC VIOLENCE-HARMLESS ERROR
Pursuant to the addition of the Evidence Code sections allowing admission in evidence of prior domestic violence in domestic violence cases. The trial court allowed an early version of the standard jury instructions. These instructions permitted the jury to infer from James' prior offenses, proven by a preponderance of the evidence, that James had a disposition to commit similar offenses, and to draw a further inference from this disposition that the defendant was likely to commit and did commit the crime of which he is accused. James was convicted.
HELD: The statutes relating to admissibility of evidence of prior offenses in domestic violence cases is constitutional. Due process demands that each element of a charged offense be proven beyond a reasonable doubt. That right is substantially eroded by instructions suggesting that a defendant's prior offenses may be sufficient to convict him of the charged crime. The tendency of propensity evidence to overpersuade the jury is beyond dispute. The instructions violated due process by increasing the likelihood the jury would misuse evidence of prior offenses, opening the door to conviction based merely on propensity. The question is whether the jury would have been tempted to apply the instruction literally and infer James' guilt directly from the propensity established by his prior offenses, without regard to the facts of the charged offense. The Court was convinced that this did not occur. The pattern of the abuse was so strong it is overwhelmingly clear that the jury would have considered all the instances together. The prior domestic violence evidence properly served as corroborative circumstantial evidence supporting the victim's direct testimony. Affirmed.
Naegele, as co-trustee v. R.J. Reynolds Tobacco Co./Donaldson, as successor in interest v. R.J. Reynolds Tobacco Co.
Case Nos. A084367/A084371
California Court of Appeal, First District, Division One
CIVIL-STATUTE OF LIMITATIONS-AMENDMENT TO STATUTE-TOBACCO CAUSED LUNG INJURY-WHEN ACTION ACCRUES
Plaintiffs sued R. J. Reynolds Tobacco, alleging that at some unknown time before January 1, 1988, the DNA in at least one cell in his lungs was irrevocably injured by smoking and that the injured cell replicated and eventually developed into lung cancer. Each also alleged that his lung cancer was an injury that continued after January 1, 1998. The parties then stipulated to orders severing respondents, termed the "tobacco defendants," from the "asbestos defendants" for separate trial. Respondents demurred, arguing that plaintiffs had not alleged and could not allege a cause of action accruing either before January 1, 1988, or after January 1, 1998. In support of the demurrers, respondents asked the court to take judicial notice of answers to interrogatories establishing that Brigham was diagnosed with lung cancer in October 1996 and Pavolini was diagnosed with lung cancer in May 1997. The trial court sustained Reynold's demurrers.
HELD: For a decade, Civil Code former section 1714.45 gave tobacco manufacturers and sellers almost complete immunity from tort actions based on injuries or death resulting from use of their products. A dramatic policy change occurred effective January 1, 1998, when the Legislature amended the statute to eliminate the immunity of manufacturers. The principal question in these consolidated appeals is whether the amended statute allows individuals who were diagnosed with lung cancer before its effective date to maintain tort actions against tobacco manufacturers. A cause of action does not accrue until the party is entitled to sue, that is, when the last element essential to the cause of action occurs. Harm or injury to the plaintiff is an essential element of a ripe cause of action in negligence or strict liability. To be actionable, that harm must be something more than speculative or the unrealized threat of future harm. It is undisputed that plaintiffs learned of their injuries no later than 1996 and 1997, when they were diagnosed with lung cancer. At the time, former section 1714.45 was in effect and barred their action. We conclude that the amended statute is not retroactive and that former section 1714.45 bars the actions. Affirmed.
People v. King
Case No. E024979
California Court of Appeal, Fourth District, Division Two
CRIMINAL-MULTIPLE CONVICTIONS BASED ON SAME ACTS-MULTIPLE CONVICTIONS MAY NOT BE BASED ON NECESSARILY INCLUDED OFFENSE
King was convicted of one count of running a chop shop and four counts of receiving stolen property.
HELD: The law allows multiple convictions to be based on the same offense. An exception to this general rule is that multiple convictions may not be based on necessarily included offense. The offense of receiving stolen property is necessarily included within the offense of owning and operating a chop shop so as to bar simultaneous convictions on both offenses. Reversed King's convictions on the four counts of receiving stolen property.
People v. Green
Case No. F029122
California Court of Appeal, Fifth District
CRIMINAL-OUT OF STATE CONVICTION AS PRIOR-NECESSITY FOR SHOWING OF BOYKIN/TAHL WAIVER OF CONSTITUTIONAL RIGHTS IN OUT OF STATE CONVICTION-LIMITATION ON GROUNDS FOR FEDERAL CONSTITUTIONAL RIGHTS CHALLENGE
Green was charged with a failure to stop at the scene of an accident resulting in injury or death. The information further alleged that, during the commission of the offense, Green inflicted great bodily injury and that he had suffered a 1978 serious felony conviction for murder in the state of Texas. Green's motion to strike the great bodily injury allegation was granted. His motion to strike the prior felony conviction, on the ground it was obtained in violation of Boykin/Tahl, was heard and denied. The reporter's transcript of the plea proceeding does not show that the Texas trial court obtained knowing and intelligent waivers from appellant of the constitutional rights enumerated in In re Tahl - the right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination.
HELD: In the absence of the expectation that the advisements and waivers of constitutional rights will appear on the face of the record, determination of the voluntariness of an out-of-state plea would be an onerous task and place an unreasonable burden on the trial courts. A defendant may not collaterally attack a prior out-of-state conviction on Boykin/Tahl grounds in the absence of evidence that the convicting jurisdiction required Tahl-like procedural formalities. There is no right to collaterally challenge a prior conviction on federal constitutional grounds except in cases involving Gideon error (right to counsel). There is nothing in the record to indicate Texas required Tahl-like admonishments when Green's plea was taken. The trial court did not err in denying appellant's challenge to the constitutionality of his 1978 Texas conviction for murder. Affirmed.
Ye v. Immigration and Naturalization Service
Case No. 98-70784
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-JURISDICTION-ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT-REMOVAL ORDER-DEFINITION OF AGGRAVATED FELONY
Ye was admitted to the United States in 1982 at the age of seven and became a legal permanent resident in February 1983. In 1994, he pled guilty to two charges of vehicle burglary. After serving his sentence the INS took him into custody. After a hearing Ye was found to be subject to removal for commission for an aggravated felony. His application for withholding of removal was granted.
HELD: The Illegal Immigration Reform and Immigrant Responsibility Act limits judicial review of orders for removal of an alien that commits an aggravated felony. A conviction for vehicle burglary does not qualify as an "aggravated felony " because it is neither a "burglary" nor a "crime of violence" as those terms are used in the definition of "aggravated felony. The BIA erred in determining that he is removable Petition granted.
Metcalf v. Daley
Case No. 98-36135
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-WHALE HUNTING RIGHTS OF NATIVE ALASKANS-NATIONAL ENVIRONMENTAL PROTECTION ACT-OBJECTIVE PREPARATION OF ENVIRONMENTAL ASSESSMENT
The native Alaskan Makah of Washington have a 1500 year tradition of hunting whales. In 1855, the U.S. and the Makah entered into a Treaty whereby the Makah ceded most of their land on the Olympic Peninsula to the United States in exchange for the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations. In 1949, Congress passed the Whaling Convention Act to implement domestically the International Convention for the Regulation of Whaling. The IWC established pursuant to this legislation immediately banned all whaling of the gray whale. When the effected gray whales were removed from the endangered species list, the Makah decided to resume the hunting of whales which migrated through their Sanctuary. When permission to resume whaling was granted the Makah the Australians for Animals and BEACH Marine Protection filed suit. Summary judgment was for Daley, Secretary of the Interior and the Makah.
HELD: The Federal Defendants did not engage the NEPA process at the earliest possible time. Instead, the record makes clear that the Federal Defendants did not even consider the potential environmental effects of the proposed action until long after they had already committed in writing to support the Makah whaling proposal. Reversed and remanded with directions to order the Federal Defendants to set aside and suspend implementation of the Agreement with the Tribe and prepare a new Environmental Assessment.
United States v. Wallace
Case No. 99-50567
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-PROBABLE CAUSE FOR TRAFFIC STOP-TRAFFIC STOP FOR HAVING FRONT WINDOW OF VEHICLE TINTED-ILLEGALITY OF EXCESSIVE TINTING ON FRONT WINDOWS OF VEHICLE-PROBABLE CAUSE FOR TRAFFIC STOP UNDER ERRONEOUS BELIEF OF ILLEGALITY
Agents of the Drug Enforcement Agency had Wallace under surveillance. The agents requested that the San Diego police make a pretextual stop of his vehicle. The police officer observed that all the windows of the Wallace vehicle were tinted. The officer believed this was illegal and made a traffic stop. Wallace consented to a search of the vehicle. A substantial amount of marijuana was found in the vehicle and later in his residence. The officer incorrectly believed that any tinting of the front windows of a vehicle was illegal, when in fact it was permitted as long as the tinting permitted 70% of the light to pass through. Wallace's motion to suppress was granted.
HELD: The U.S. complied with the certification requirements for bringing the appeal. The U.S. Attorney may designate an Assistant U.S. Attorney to sign in his absence, but the certification should be accompanied by a declaration showing the assistant's authority. Probable cause for a traffic stop exists when police officers have facts within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime. Although the police officer making the stop believed all front window tinting was illegal, he subsequently that the window was difficult to see through and exceeded the legal 70% translucency requirement. The traffic stop, therefore, was not unlawful, and neither was the subsequent search and seizure. The motion to suppress should have been denied. Reversed and remanded.
Chanchavac v. Immigration and Naturalization Service
Case No. 98-71195
U.S. Court of Appeals for the Ninth Circuit
ORDER-PETITION FOR ASYLUM
Minor amendment to opinion filed March 27, 2000, not effecting the judgment.
Wasserman's Archived Appellate Summaries
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