Wasserman's Appellate Summaries
July 7, 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.
Fresno County Department of Social Services v. Sonia C.
Case No. F034257
California Court of Appeal, Fifth District
FAMILY LAW-SUBSTANTIAL EVIDENCE OF EMOTIONAL DAMAGE TO CHILD
The mother and father of Brison C. were going through a custody battle. The mother made a complaint to the Fresno County Department of Social Services that the father had molested the child. After investigation the charges were deemed to unfounded. The Department then filed a petition alleging that Brison was suffering serious emotional damage because of his parents’ ongoing custody dispute. Brison was removed from the mother’s home and placed in foster care. After hearing, the allegation was found true and return of Brison to either parent was found detrimental.
HELD: The Department failed to proffer substantial evidence showing that at the time of the hearing Brison was seriously emotionally disturbed or that he was in substantial danger of suffering serious emotional damage. The evidence shows only that Brison, an otherwise reasonably well-adjusted child who performed well at school and displayed no serious behavioral problems, despised his father and desperately sought to avoid visiting him. Standing alone, this circumstance is insufficient to support a finding that Brison is seriously emotionally damaged. Reversed.
People v. Miller
Case No. H017020
California Court of Appeal, Sixth District
CRIMINAL-THEFT BY FALSE PRETENSES-REQUIREMENT FOR CORROBORATION-METHOD OF CORROBORATION-EVIDENCE OF OTHER NON CHARGED ACTS
Miller and Harris were convicted of stealing over $150,000 by false pretenses from two elderly single men and then attempting to dissuade one of the victims from testifying against them. The evidence at trial showed a pattern of making contact with older men and inducing them to give them money on various pretexts. Harris was sentenced to 77 years to life (three 25-year-to-life sentences to be served consecutively plus the two-year great taking enhancement, one 25-to-life sentence to be served concurrently, and one 25-to-life sentence stayed). Miller received seven years in state prison: the two-year midterm for count 1 plus the consecutive two-year great taking enhancement; three years concurrent on dissuading a witness, count 3; and three years consecutive for dissuading a witness with a threat of force.
HELD: A theft conviction on the theory of false pretenses requires proof that (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. If the conviction rests primarily on the testimony of a single witness that the false pretense was made, the making of the pretense must be corroborated. The corroboration required is of the making of the pretense. The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. Corroborative evidence may be found in the defendant’s declarations to other persons. When more than one witness testifies to a defendant’s false pretenses, even though made on separate occasions, the multiple witness requirement is met as long as the same type of scheme is involved and the same manner is employed. The evidence was sufficient to establish corroboration of the false pretense. Evidence of a prior crime or bad act is admissible so long as it shows not only criminal disposition, but is relevant to prove a fact such as motive, opportunity, intent, plan, or knowledge. The contacts that Miller and Harris had with other potential victims were admissible. The instructions were proper. Affirmed.
Naegele/Donaldson v. R.J. Reynolds Tobacco Company
Case Nos. A084367/A084371
California Court of Appeal, First District, Division One
ORDER
Modification of opinion filed on June 9, 2000, not affecting the judgment.
United States v. Kellingon
Case No. 98-30193
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-PROCEDURE-EFFECT OF FAILURE OF TRIAL COURT TO MAKE CONDITIONAL ORDER ON MOTION FOR NEW TRIAL AFTER GRANTING MOTION FOR ACQUITTAL-JURISDICTION TO REINSTATE MOTION FOR NEW TRIAL AFTER REMAND
Kellington is an experienced civil attorney specializing in personal injury law and trusts and estates. A business client was arrested and requested Kellington visit him in jail. The client gave Kellington a detailed list of money and other property that he wanted an employee to secure and some papers that he wanted destroyed. Kellington related the information to the employee. Kellington was convicted of obstruction of justice and conspiracy to obstruct justice. At trial an expert testified relating to the ethical obligation of an attorney to his client. The district court instructed the jury that the expert testimony was merely background information rather than evidence going to Kellington's intent, and also expressly prohibited defense counsel from arguing in closing that Kellington's ethical obligations to his client negated his criminal intent. The trial court granted Kellington's motion for acquittal and denied his motion for a new trial as moot. The acquittal order was reversed on appeal. The order of reversal stating, "reversed and remanded for entry of judgment and for sentencing. Kellington then renewed his motion for a new trial. The motion was reinstated and granted.
HELD: Applying the rule of mandate: lower courts are obliged to execute the terms of a mandate, but they are free as to anything not foreclosed by the mandate. In this case the motion for new trial was not before the Kellington I court. Only the judgment of acquittal was appealed and addressed by the decision. There can be no implication that, in reversing the judgment of acquittal, the Kellington I court implicitly disposed of the merits of the motion for new trial. The district court did not exceed its authority on remand by reinstating the motion for new trial. It is well settled that in the prosecution of a lawyer for conduct stemming from his or her representation of a client, expert testimony on the lawyer's ethical obligations is relevant to establish the lawyer's intent and state of mind. The expert testimony was critical to the defense. There was no abuse of discretion in granting Kellington's motion for new trial. Affirmed and remanded.
Ray v. Henderson, Postmaster General
Case No. 99-15289
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-RETALIATORY DISCRIMINATION-HOSTILE WORK ENVIRONMENT
Ray has been a rural postal carrier in Willits, California for over 28 years. Ray and his co-workers became concerned about gender bias and harassment at the post office by their supervisor. Ray next made a complaint about the treatment of women at a meeting. The supervisor thereafter instituted more restrictive policies relating to hours of work and imposed standards for many tasks. Harassment escalated over time. Ray complaint to the EEO was rejected and he filed suit. Summary judgment was for the defendant on his retaliation claim.
HELD: An adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity. Under this standard, we conclude that Ray suffered cognizable adverse employment actions when his employer, in retaliation for Ray's complaints concerning management's treatment of women employees, eliminated employee meetings, eliminated its flexible starting time policy, and cut Ray's salary. Ray has a claim for retaliation based on his supervisors' creation of a hostile work environment. Reversed and remanded.
Kortan v. California Youth Authority
Case No. 98-56047
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-ACTS CONSTITUTING SEXUAL HARASSMENT-ADVERSE EMPLOYMENT ACTION
Kortan is a Caucasian female. She began working at the Southern Youth Reception Center and Clinic in 1988 as a Clinical Staff Psychologist. Problems developed and escalated after a nurse ignored her order not to transfer a juvenile back to the general population and her feeling that she was largely ignored and belittled when she complained about the incident. She ultimately quit her job and filed suit. Summary judgment was for the CYA.
HELD: Under Title VII, it is unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Title VII is violated if sexual harassment is so severe or pervasive as to create a hostile work environment. There is no question that certain comments to Kortan were offensive. The difficulty is that they were mainly made in a flurry on February 3rd. Once or twice before he had referred to a former female superintendent as a "castrating bitch" or "madonna" or "regina," but Kortan did not regard this as harassing and she thought her immediate supervisor behaved like a "perfect gentleman" prior to February 3. As unpleasant as the supervisor's outburst was, the comments were about other people. He never directed a sexual insult at Kortan. The utterances were just offensive. Additionally, Kortan failed to show an adverse employment action. Affirmed.
United States v. Garza-Sanchez
Case No. 99-50596
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INFORMED AND INTELLIGENT WAIVER OF RIGHTS-LIMITATION ON REQUIREMENT TO BE INFORMED OF RIGHTS WAIVED
Garza-Sanchez was convicted of being an alien found in the United States following deportation. His pretrial motion to dismiss the indictment, on the ground that the underlying deportation was unlawful was denied. Garza then pleaded guilty, reserving the right to appeal the denial of his motion to dismiss.
HELD: It was undisputed that Garza waived the right to appeal his order of deportation. The record shows that the he was advised by the Immigration Judge of all the rights he was waiving that was required by law. Garza's waiver was fully informed, considered and intelligent, and was valid. The Due Process Clause does not require the IJ to advise of potential constitutional challenges. Affirmed.
United States v. Arvisu
Case No. 99-10229
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INVESTIGATORY STOP WITHOUT JUSTIFICATION-SUBSEQUENT CONSENT TO SEARCH
This was a border stop of a van containing Arvizu, his wife and three children. The border patrol agent testified as to the facts that aroused his suspicion before he made a stop. The agent approached the van with his hand on his gun and requested permission to look around the van. Arvizu believed this meant look around the outside of the van and granted permission. The agent did not tell Arvizu that he had a right to refuse a search, nor did he read Arvizu his Miranda rights. Arvizu's motion to suppress was denied. Marijuana was discovered in a duffel bag. He then entered a conditional plea of guilty.
HELD: In order to satisfy the Fourth Amendment's an investigatory stop may be made only if an officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Although the level of suspicion required for a brief investigatory stop is less demanding than that required to establish probable cause, the Fourth Amendment still requires an objective justification for such a stop. In this case some of the factors on which the district court relied to establish justification are neither relevant nor appropriate to a reasonable suspicion analysis, and that the others, singly and collectively, are insufficient to give rise to reasonable suspicion. The stop by the agent was not supported by reasonable suspicion and taints the evidence obtained during the stop, unless the taint is purged by subsequent events. Here, the interrogation, consent and search flowed directly from the stop. No events occurred after the stop that served to purge the subsequent consent and search of the taint. Reversed and remanded.
Exxon Mobil v. Environmental Protection Agency
Case No. 99-70945
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-CLEAN AIR ACT-FEDERAL PREEMPTION OF STATE REGULATION OF AIR QUALITY-GASOLINE OXYGENATION REQUIREMENT
In 1988, Clark County, Nevada began an oxygenated fuel program in the wintertime to reduce the level of CO emissions. The level of oxygenation was raised to 3.5%. Exxon, in opposition to this level, contended that the statute only permitted states to adopt a minimum oxygen requirement of 2.7%. The EPA approved the 3.5% requirement.
HELD: In reviewing a final action by the EPA the appellate court can reverse only if the action is arbitrary, capricious, or contrary to law or if it exceeds the statutory jurisdiction, authority, or limitations. The first section of the Clean Air Act, entitled "Congressional Findings," makes clear that the states retain the leading role in regulating matters of health and air quality. The statute also states that nothing in the legislation shall preclude the right of any State to adopt or enforce any standard or limitation respecting emissions of air pollutants or any requirement respecting control or abatement of air pollution. Affirmed.
United States v. Wallace
Case No. 99-50567
U.S. Court of Appeals for the Ninth Circuit
ORDER-PROBABLE CAUSE FOR DETENTION SEARCH-MISTAKEN BELIEF IN LEGALITY OF TINTED WINDOWS ON VEHICLE
Amendment to Opinion filed on June 9, 2000, not affecting the judgment.
United States v. Daniel
Case No. 99-10268
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-REVOCATION OF SUPERVISED RELEASE
Amendment to opinion filed on April 19, 2000, not affecting the judgment.
MacFarlane/Fogel v. Walter/Ducharme
Case No. 97-35725
U.S. Court of Appeals for the Ninth Circuit
ORDER
Case dismissed as moot.
Wasserman's Archived Appellate Summaries
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