Wasserman's Appellate Summaries
June 14, 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 Mitchell
Case No. D035151
California Court of Appeal, Fourth District, Division One
CRIMINAL-LIMITATION OF TIME SERVED CREDIT TO 15%
Mitchell was convicted of, inter alia, conspiracy to commit first degree robbery in concert and two counts of attempted first degree robbery in concert. He was sentenced to a total of seven years eight months in prison. At Mitchell's sentencing hearing, the trial court ruled that the 15 percent custody credit limitation of Penal Code section 2933.1 did not apply to him and ordered that his credit for time served be calculated under Penal Code section 4019. When advised by the Department of Corrections that the 15% credit applied, the trial court refused to adjust the credit time. Mitchell's petition for a writ of habeas corpus was denied.
HELD: The statue is quite clear in stating that, notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. Since conspiracy to commit residential robbery in concert is not specified as a qualifying violent felony in section 667.5, the 15 percent custody credit limitation of section 2933.1 does not apply to Mitchell. Petition granted, the Department is directed not to limit custody credit to 15%.
Geneva Towers Limited v. The City and County of San Francisco
Case No. A088355
California Court of Appeal, First District, Division Five
TAXES-STATUTE OF LIMITATIONS FOR ACTION FOR REFUND OF REAL PROPERTY TAXES-COMMENCEMENT OF LIMITATIONS PERIOD
Geneva became the owner of a low-income housing project in the City in 1987. The property was reassessed and a new base-year value of $22,888,888 set. Geneva appealed the assessment to the assessment appeals board, which reduced the base-year value to $10,343,712. In November 1991 Geneva submitted a claim for refund to the City's Board of Supervisors for approximately $4.6 million in purportedly excess taxes collected for tax years 1987-1988 through 1990-1991. The Board received the claim on November 27, 1991. No refund of taxes or any part thereof has been made. The City's demurrer, on statute of limitations grounds was granted.
HELD: Under California Constitution, real property taxes are based on the county assessor's valuation of the property as shown on the property's 1975-1976 tax bill, or, thereafter, the appraised value of the property when purchased, newly constructed, or a change in ownership has occurred after 1975. The appraised value is known as the "base year value" for the property. Future increases in the base-year value are limited to a maximum of 2 percent per year. The Revenue and Taxation Code provides that an action for a tax refund shall be commenced within six months from and after the date that the board of supervisors or city council rejects a claim for refund in whole or in part. The section further provides that, if the board of supervisors or city council fails to mail notice of its action on a claim for refund within six months after the claim is filed, the claimant may, prior to mailing of notice by the board of supervisors or city council of its action on the claim, consider the claim rejected and bring an action. The Court concluded that the Civil Code four year statute of limitations period for bringing suit, under the section providing a limitation period for relief not otherwise provided for. Affirmed.
People v. Velasquez
Case No. B135939
California Court of Appeal, Second District, Division Six
CRIMINAL-APPEAL-PROCEDURAL REQUIREMENTS-FAILURE TO FILE REQUIRED DOCUMENTS
Velasquez pleaded guilty to forcible genital penetration by foreign object. There was no agreement as to sentence. He received the middle term of six years in state prison. The notice of appeal did not state it was based solely upon grounds occurring after the entry of plea or involving the denial of a motion to suppress brought pursuant to section 1538.5. Velasquez did not file a written statement, executed under oath or penalty of perjury, showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. Nor did he obtain a certificate of probable cause for the appeal from the trial court. The superior court clerk's office prepared a complete clerk's transcript and ordered four different court reporters to prepare a transcript. The court certified the record of more than 300 pages and transmitted it to this court.
HELD: Because Velasquez pleaded guilty and did not file the documents required by the Penal Code and Rules of Court, his appeal is inoperative and a review of the entire record by this court is inappropriate. Under these circumstances, there was no need for preparation of the record on appeal and the appointment of appellate counsel, much less consideration and decision of the appeal itself. The superior court clerk's office went to needless effort. Appeal dismissed.
United States v. Jaing/Li/Zheng
Case Nos. 99-10367/99-10368
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DISMISSAL WITH PREJUDICE FOR UNNECESSARY DELAY IN TRIAL
Defendants each were indicted in the District of Guam on one count of smuggling aliens. The district court denied the government's motion for a continuance and dismissed the indictments with prejudice.
HELD: The Federal Rules of Court provide that, if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment. A district court may dismiss even when the prosecutorial delay does not amount to a violation of the Sixth Amendment. Although the rule confers discretion upon the district judge, a dismissal should be imposed only in extreme circumstances. At the time the court dismissed the indictments, Jiang and Zheng had been incarcerated for less than five months and Li for less than two months. Although further incarceration of one month qualifies as actual prejudice sufficient to justify dismissal, that prejudice could as easily have been remedied by a dismissal without prejudice. That lesser sanction was available to the district court. Additionally, only five days before the district court dismissed the cases, Defendants all had stipulated to the government's request to continue the trials until August 9. Reversed and remanded with instructions to dismiss without prejudice.
United States v. Jiminez
Case No. 99-10133
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INSTRUCTIONS-REVERSIBLE ERROR IN SPECIFYING FORMER OFFENSE
Jiminez was convicted of possession of a firearm by a felon. When the government sought to impeach JIMINEZ with his prior convictions for assault with a deadly weapon and burglary. The district court attempted to sanitize the assault prior by directing the prosecution to refer to it only as a "felony involving a firearm."
HELD: Instead of mitigating the prejudice, this ruling inadvertently exacerbated it by gratuitously informing the jury that the "deadly weapon" involved in the defendant's prior conviction was, indeed, a firearm. Since the main issue in the present case was whether or not the defendant possessed a firearm, the district court's ruling was reversible error. Reversed.
State of Idaho v. Horiuchi
Case No. 98-30149
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-KILLING BY FEDERAL LAW OFFICER-SUPREMACY CLAUSE IMMUNITY
This case is part of the infamous "Ruby Ridge" shooting in Idaho. Horiuchi was a federal officer. He was a sniper with a special rescue group. He shot through a door, intending to hit one of the armed men, and killed the wife of the suspect. When the state of Idaho filed criminal charges Horiuchi had it removed to federal court. His motion to dismiss, on the grounds that he was immune from prosecution under the Supremacy Clause, was granted.
HELD: The record supports the district court's finding that Horiuchi's belief was objectively reasonable. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Faced with a dangerous armed man, who was running to an area where he would present a greater danger, Horiuchi had less than a few seconds to make a decision. Affirmed.
Coady v. Commissioner of The Internal Revenue Service
Case No. 98-73158
U.S. Court of Appeals for the Ninth Circuit
TAXATION-EXCLUDING FROM INCOME CONTINGENT ATTORNEY FEES
Nona Coady was discharged from her position as senior loan officer at Alaska Housing Finance Corporation. She retained a law firm to represent her in a wrongful termination suit. Judgment was for Coady. AHFC issued a check to Coady for $259,610 in full payment of the judgment (withholding $113,696 for federal income taxes). The Coadys paid $221,338 to their attorneys and excluded the amount of fees paid from their income on their tax return. The Tax Court upheld the IRS determination that the total payment from AHFC should have been included in income and the $221,338 listed as a miscellaneous deduction.
HELD: The Supreme Court has explicitly rejected the notion that taxation can be escaped by procuring payment directly to creditors or by making anticipatory arrangements to prevent earnings from "vesting even for a second" in the person who earned it. Coady's recovery for back pay and benefits was income to her on which she cannot avoid taxation by diversion to creditors, including counsel for a contingency fee. Affirmed.
United States v. Rodriguez
Case No. 96-50297
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-DISPARITY IN PLEA BARGAINING SENTENCES AMONG DISTRICTS AS BASIS FOR DOWNWARD DEPARTURE IN SENTENCE
Rodriguez pleaded guilty in the United States District Court for the Central District of California to illegally reentering the United States after having been deported. At sentencing, Defendant argued for a downward departure from the applicable Sentencing Guideline range on the ground that, had he been arrested in one of the other federal districts in California, he would have been offered a plea bargain that would have resulted in a shorter prison term. The district court denied the request for downward departure.
HELD: The disparity between the charging and plea-bargaining decisions of the United States Attorney for the Central District and those of the United States Attorneys for the other federal districts in California was not a proper ground for departing from an otherwise applicable Guideline range. Affirmed.
The People of the State of California v. United States
Case No. 99-15388
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-SUBJECT MATTER JURISDICTION OF FEDERAL COURTS-STATE ENFORCEMENT OF STATE AIR QUALITY STANDARDS AGAINST FEDERAL GOVERNMENT
The Sacramento Air Quality District brought this action in state court under the California Health and Safety Code to recover civil penalties from the United States for the unauthorized emission of nitrogen oxides into the air. The United States removed this action to the district court. The district court dismissed the action on the basis that Congress had not waived the United States' sovereign immunity from liability for civil penalties imposed by states to punish past violations of state and local air quality laws.
HELD: Although the Clean Air Act establishes a federal framework for ensuring the nation's air quality, Congress vested in the states the primary responsibility for implementing its provisions. Congress amended the Clean Air Act to impose an affirmative duty upon federal facilities to comply with all federal, state, interstate, and local requirements respecting the control and abatement of air pollution to the same extent as any other person. By guaranteeing the right of state and local governments to obtain judicial remedies and sanctions in state and local courts, the text of the amendments necessarily prohibits the removal of actions that are brought by state and local governments pursuant to their own air quality laws. Judgment vacated with directions that this action be remanded to the state court, because the district court lacked subject matter jurisdiction to consider the merits of this dispute.
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page