Wasserman's Appellate Summaries
June 12, 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.
In Re Pedro M./People v. Pedro M.
Case No. B130400
California Court of Appeal, Second District, Division Two
JUVENILE-CONDITIONS OF PROBATION-TESTIMONY BY JUVENILE'S THERAPIST-SUFFICIENCY OF EVIDENCE TO COMMIT TO CALIFORNIA YOUTH AUTHORITY-NECESSITY TO CALCULATE PRECOMMITMENT CUSTODY CREDITS
Pedro M., the appellant herein, was declared a ward of the juvenile court after admitting several charges of lewd acts upon a child under 14 years of age and burglary. He was placed in a program as a condition of probation. When he refused to cooperate with the program a supplemental petition was filed. After a hearing Pedro was committed to the California Youth Authority. At the hearing his therapist was allowed to testify over objection. The court declared Pedros' maximum period of confinement to be 11 years, 8 months and awarded him predisposition credit, without specifying the number of days to which he was entitled.
HELD: In the instant case, the juvenile court determined that Pedro's rehabilitation necessitated his participation and cooperation in a sex offender treatment program, a determination which was clearly within the court's authority to make, given Pedro's commission of sex-related offenses. The court's ability to evaluate Pedro's compliance with this particular condition of the court's disposition order and its effect on his rehabilitation would be severely diminished in the absence of some type of feedback from the therapist and it would be unreasonable for Pedro to think otherwise. The therapist's testimony was sufficient in and of itself to prove the allegations of the supplemental petition. A decision by the juvenile court to commit a minor to the CYA will not be deemed to constitute an abuse of discretion where the evidence demonstrate[s] probable benefit to the minor from commitment to the CYA and that less restrictive alternatives would be ineffective or inappropriate. The evidence established that notwithstanding an 18-month placement in one of the best sex offender treatment programs available at the county level, Pedro had made virtually no progress. The juvenile court should have set forth the amount of precommitment custody credit to which Pedro was entitled. Affirmed, and remanded to the juvenile court with directions to calculate the amount of precommitment custody credit.
Rose v. The Superior Court/People
Case No. B134032
California Court of Appeal, Second District, Division Six
CRIMINAL-PROCEDURE-HABEAS CORPUS-COURT DUTY ON REMAND TO HOLD EVIDENTIARY HEARING ON GRANT OF AN ORDER TO SHOW CAUSE
Rose was convicted of first degree murder, attempted murder, and assault with a firearm. Two inexperienced attorneys represented him at trial. An OSC was issued by the Court of Appeal and the matter was ordered returnable in the Superior Court. Rose's appellate attorney filed a detailed 43-page traverse. The court's terse minute order was not enlightening. It stated merely that the court had read and considered the traverse; that Rose was unrepresented and not present in court; and that the petition for Habeas Corpus was denied. The court held no hearing. It made no factual findings.
HELD: A superior court judges considering a habeas corpus petition should keep in mind that a denial without a statement of reasons is contrary to the plain requirements of California Rules of Court. The consideration of a habeas corpus petition is more than a formal ritual or a procedural nuisance. The remand of Rose's habeas corpus petition for hearing was because he has raised what may be meritorious contentions concerning the quality of his representation. This calls for more than a cursory review. A defendant has a constitutional right to be represented by effective counsel. The order on remand was explicit: the People were "to show cause before the Superior Court of the County of Los Angeles, when the matter is placed on calendar, why the relief prayed for in the petition should not be granted. Mandate issued commanding respondent court to vacate its order denying the petition and to hold an evidentiary hearing in conformance with the views expressed in this opinion.
Luque v. Herrera/Fremont Compensation Insurance Company v. Herrera
Case No. B133525
California Court of Appeal, Second District, Division Six
PERSONAL INJURY-DEDUCTION FROM SETTLEMENT FOR ATTORNEY FEES-ALLOCATION OF PAYMENT AMONG THE ATTORNEYS THAT PARTICIPATE IN SETTLEMENT
Luque was driving in the course of her employment. She was injured in a collision with Herrera, in which Herrera was solely at fault. Luque filed a claim for workers' compensation benefits with the Fremont Compensation Insurance Company. Luque also filed an action for damages against Herrera. Fremont paid $21,670 in compensation benefits to Luque and filed suit against Herrera. The consolidated cases against Herrera settled for Herrera's $15,000 policy limits. Luque filed a motion for attorney's fees. In support of the motion Luque's counsel declared that he negotiated a settlement with Herrera's insurance carrier for $15,000 policy limits. The trial court granted Luque's counsel fees of $9,000.
HELD: By statute: "Where settlement is effected, with or without suit, solely through the efforts of the employee's attorney, then prior to the reimbursement of the employer, . . . there shall be deducted from the amount of the settlement the reasonable expenses incurred in effecting such settlement, including a reasonable attorney's fee to be paid to the employee's attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee. When both the employer and employee are represented by attorneys, then the amount of attorneys fees are disbursed in accordance with the effort of each attorney in reaching settlement."
The standard does not ask whether counsel 'minimally participated' in the case but rather whether counsel 'actively participated' in the creation of the settlement fund. The uncontradicted declarations show that Luque's attorney negotiated the settlement. Affirmed.
People v. Rubalcava
Case No. S081209
Supreme Court of California
CRIMINAL-REQUIRED INTENT FOR CARRYING DIRK OR DAGGER
Rubalcava was arrested on an outstanding warrant. During the arrest a knife was discovered on Rubalcava's person. The knife had a blade roughly three inches long and a handle approximately three and one-eighth inches long. Rubalcava was charged with "willfully and unlawfully carrying concealed upon his/her person a dirk and dagger." The jury was instructed of CALJIC Nos. 12.41 and 3.30. These instructions defined the offense as a "general intent" crime and stated that a defendant violates section 12020, subdivision (a), if he "carried a dirk or dagger" "substantially concealed upon his person" and "knew he was carrying the weapon." Rubalcava did not object to these instructions, and did not request CALJIC No.12.42, which stated that the jury may consider "intended use" when determining whether the instrument is a dirk of dagger-or any other comparable instruction. Rubalcava was convicted. The Court of Appeal affirmed.
HELD: The offense of carrying a dirk or dagger does not have a specific intent requirement. Courts have no duty to sua sponte instruct the jury with CALJIC No. 12.42. The legislative history is clear and unequivocal: the intent to use the concealed instrument as a stabbing instrument is not an element of the crime of carrying a concealed dirk or dagger. Indeed, the offense has never had such an intent requirement, and we find nothing suggesting an intent by the Legislature to alter this established rule. Affirmed.
Kajima/Wilson v. Los Angeles County Metropolitan Transportation Authority
Case No. S077461
Supreme Court of California
CIVIL-GOVERNMENT-CONTRACTS-DAMAGES FOR ERRONEOUS AWARD OF
When the LAMTA solicited bids for a construction job Kajima/Wilson submitted the lowest bid. The job was awarded to Tutor-Saliba. Unknown to Kajima, MTA had an unwritten policy granting only a 5 percent DBE credit of bid amounts designated for entities identified as "brokers," while awarding 100 percent credit of bid amounts for those identified as "subcontractors." Had Kajima received the same percentage credit for the work to be performed by Tejeda as did Tutor-Saliba, Kajima's DBE credit would have exceeded the 30 percent goal for DBE participation. Kajima sued. Judgment was for Kajima. The court awarded Kajima $44,869 in round two bid expenses, $89,223 in round two bid protest expenses, $300,000 in unabsorbed overhead, $350,000 in lost profits, and $139,829.74 in prejudgment interest. The Court of Appeal affirmed.
HELD: Under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. To the extent LAMTA awarded a contract, it was statutorily required under the circumstances of this case to award that contract to the lowest responsible bidder. The Court concluded that preparation costs are recoverable against a public entity for the misaward of a public contract, but not lost profits. Reversed.
Vasudeva v. United States
Case No. 98-35726
U.S. Court of Appeals for the Ninth Circuit
GOVERNMENT-VIOLATIONS OF FOOD STAMP PROGRAM REQUIREMENTS-AGENCY DISCRETION IN DETERMINING CIVIL MONETARY PENALTY IN LIEU OF DISQUALIFICATION FROM FOOD STAMP PROGRAM
Owners of three 7-11 stores participated in the Food Stamp Program pursuant to an agreement in which they agreed to accept responsibility on behalf of the firm to prevent violations of Food Stamp regulations, including trafficking regulations, and to accept responsibility for violations committed by the firm's employees. On a surveillance check repeated violations were found. The owners were found to be eligible for a Civil Monetary Penalty in lieu of disqualification. The owners challenged the amount of the penalty imposed. Summary judgment was for the US.
HELD: Trafficking in food stamps is illegal and permanent disqualification is the default penalty for trafficking violations. However, store owners can opt to pay a Civil Monetary Penalty rather than be disqualified, if the owner can show that the store had an effective anti-trafficking training program in place and that the store owner had no knowledge of the trafficking. The store owners are qualified for a CMP in lieu of permanent disqualification, and adequate agency discretion was exercised in adopting the formula by which the amount of the CMP is determined. Affirmed.
Morales/Medranos v. City of Los Angeles
Case No. 98-56478
U.S. Court of Appeals for the Ninth Circuit
TORTS-STATUTE OF LIMITATIONS-CIVIL RIGHTS ACTION-TIME OF ACCRUAL OF CAUSE OF ACTION-TOLLING OF CAUSE OF ACTION WHEN APPEAL TAKEN
The Medaranos filed a civil rights action after their son was killed by police officers. Judgment was for the defendants. In July 1998 the Medaranos then filed a second civil rights lawsuit, also in federal district court, alleging that the police officers violated the Medaranos' right to access to the courts by conspiring to conceal the true nature of the shooting. The district court granted a motion for judicial notice of the date of the state court judgment and the motion to dismiss, on the ground that plaintiffs' cause of action accrued by no later than June 1995, the date on which the state jury returned its verdict adverse to the plaintiff. The Morales case has some similar elements; an arrest and acquittal on drug charges in 1989. He then filed a civil rights lawsuit in 1998, on the grounds that the police falsified evidence against him. Judgment was for the defendants, on the ground that the action was time barred.
HELD: Actions brought for violations of civil rights are governed by the state statutes of limitations for personal injury actions. Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues. Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury, which is the basis of the action. Morales' and the Medaranos' causes of action accrued when the alleged police misconduct resulted in judgments being entered against them. At that point, they knew or had reason to know that the alleged misconduct actually caused concrete injury. The possibility that a subsequent appellate reversal of the judgments might moot the cause of action does not affect the analysis. Accrual and mootness principles operate independently of each other. California law holds that the limitations period begins to run on the date of judgment, but is tolled from the date the notice of appeal is filed, and begins to run again when the state appellate court issues a remittitur. Neither record contains the exact dates that the remittiturs were filed. Reversed and remanded for further proceedings.
United States v. Bowman
Case No. 99-30120
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE-STATEMENTS OF COCONSPIRATOR- IDENTIFICATION OF THIRD PARTY AS PERPETRATOR-SEARCH AND SEIZURE-SENTENCING-DOUBLE COUNTING OF ENHANCEMENT
Bowman was convicted for numerous bank robberies. At trial testimony of a co-conspirator and his companion was admitted. Evidence that others had been identified in several bank robberies was excluded. He was sentenced to 295 months.
HELD: The statement of a co-conspirator is admissible against the defendant if the government shows by a preponderance of the evidence that a conspiracy existed at the time the statement was made; the defendant had knowledge of, and participated in, the conspiracy; and the statement was made in furtherance of the conspiracy. There is no question that Penney was part of the conspiracy. She laundered money from the robberies, paid the bills and generally assisted when requested. Other crime evidence of third party culpability may be introduced if there are distinctive similarities between the crime charged and the other robberies, such evidence may still be excluded if it is insufficiently probative in light of its prejudicial effect. The trial court did not abuse its discretion in excluding the evidence. The search of Bowman's garbage was not a violation of his constitutional rights. There is no expectation of privacy in ones garbage. The affidavit for a warrant to search his home was sufficient and the agents relied on it in good faith. The enhancements for brandishing a firearm did not result in double counting. Affirmed.
United States v. Cervantes
Case No. 98-50722
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SEARCH AND SEIZURE-WARRANTLESS SEARCH-EXCEPTIONS-PROBABLE CAUSE PLUS EXIGENT CIRCUMSTANCES
Fireman reported a strong chemical odor coming from an apartment at the scene of a fire. A police officer looked through the blinds of an apartment from where the fumes were strongest and saw several men inside. When police entered the apartment the men ran. Cervantes was caught and arrested. Officers obtained a search warrant and found methamphetamine. Cervantes was convicted of manufacturing and possessing with intent to distribute methamphetamine.
HELD: The Fourth Amendment prohibits searching a residence without a warrant unless at the time of the search: (1) there is probable cause to believe that contraband or evidence of a crime will be found in the residence; and (2) exigent circumstances are present. The searches in this case were legal under the emergency doctrine. This doctrine provides that a police officer, while investigating within the scope necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was no probable cause to believe that such evidence would be found. The subsequent search under the search warrant was legal. In considering the affidavit supporting issuance of a search warrant the portion of the affidavit in support of the warrant application containing information that was obtained during the illegal fourth search must be excised. Given the admissible facts in the affidavit there was a substantial basis for concluding that there was probable cause to believe that contraband or evidence of a crime would be found in Apartment 3. Given the lack of furniture in the apartment, the large amount of methamphetamine, and drug producing equipment found, Apartment 3 appears to have been used exclusively for making and storing methamphetamine. Cervantes was more than merely present at Apartment 3, he paid the rent, pretended to be the leaseholder, and opened the door when the police arrived. Affirmed.
United States v. Hicks
Case No. 99-10352
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FALSE STATEMENT TO FINANCIAL INSTITUTION-IMPLIED STATEMENT BY SUBMITTING TAX RETURN-INSTRUCTIONS-MEANING OF WORD FALSE AND STATEMENT-SENTENCING
Hicks applied for nine loans from Glendale Federal Savings Bank. Each loan was to fund Hicks' purchase of a particular piece of real property. Because he was self-employed, Hicks was required to submit copies of his last two federal income tax returns in support of each application. Hicks caused false returns to be prepared and submitted them to the bank. At trial and expert witness testified that the income figures in the false tax forms were more accurate than the income figures in Hicks' actual IRS tax returns. Hicks was convicted by of making false statements to a federally insured financial institution.
HELD: The tax returns submitted to the bank were IRS 1040s, signed by Hicks and his wife, and had been completed by a professional tax preparer and stamped "Taxpayer's Copy." The jury reasonably could have concluded that, by submitting those carefully prepared documents in response to the bank's request for Hicks' last two tax returns, he falsely stated that the documents were copies of the tax forms that he had filed with the IRS. The jury could have convicted Hicks based on his implicit statement that the Glendale returns were copies of his actually filed IRS tax returns. The district court declined to give either party's requested instruction on the meaning of the term "statement," and similarly declined to give Defendant's requested instruction defining the term "false." The district court simply instructed the jury that the government was required to prove beyond a reasonable doubt that Hicks "made a false statement to Glendale." There was no error. Affirmed conviction, vacated sentence and remanded.
Wasserman's Archived Appellate Summaries
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