Wasserman's Appellate Summaries
July 11, 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.
People v. Fountain
Case No. C028465
California Court of Appeal, Third District
(Certified for publication with the exception of Parts II and III.)
CRIMINAL-SENTENCING-ENHANCEMENT BY USE OF JUVENILE CONVICTION AS A STRIKE
Fountain was convicted of lewd and lascivious conduct with a child under 14 years of age. Fountain had two prior convictions, one for battery with serious bodily injury, which was in juvenile proceedings, and the other in adult court for robbery. He was sentenced to 80 years under the Three strikes Law.
HELD: The Penal Code provides that a prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement for certain enumerated violent and serious felonies. The Court held that the trial court could properly look to the record behind the offense finding in Juvenile Court to determine whether defendant’s conduct constituted assault by any means of force likely to produce great bodily injury. However, it is not enough to show that great bodily injury resulted from an offense, it must also be shown that the means employed in causing the injury was likely to do so. The evidence fails to show that the juvenile offense was a strike. Reversed the finding that the juvenile offense was a strike and remanded for resentencing.
People v. Campbell
Case No. D034190
California Court of Appeal, Fourth District, Division One
CRIMINAL-TYING OR BINDING DURING COMMISSION OF CERTAIN SEXUAL OFFENSES-BLINDFOLDING WITH TAPE-VAGUENESS OF STATUTE
During the course of committing a rape Campbell put tape over the eyes of the victim. Campbell's motion to set aside this allegation was granted. Campbell was later convicted of sodomy by force, residential robbery and burglary, assault with intent to commit rape and false imprisonment. The People appeal the grant of the motion.
HELD: When there is a conviction for certain sexual offenses the sentence level is increased under certain circumstances. One such circumstance is the tying or binding of the victim in the commission of the offense. While it may be true that Campbell's goals included not being identified by the victim, the means which Campbell chose to effectuate this goal increased his victim's vulnerability, and came well within the scope of the prohibition on tying or binding of the victim. Campbell's actions came within the statutory prohibition on tying or binding of the victim during the course of the offense. The statute is not unconstitutionally vague. Reversed the order setting aside the tying circumstance.
People v. Cain
Case No. E025274
California Court of Appeal, Fourth District, Division Two
CRIMINAL-DUE PROCESS-RIGHT TO EXAMINE WITNESSES RELATING TO RESTITUTION FINE
Cain pled no contest to infliction of corporal punishment on a spouse. As one of the conditions of his probation, Cain was ordered to pay $1,890.75 to the State Board of Control to reimburse the Board for payment of counseling fees on behalf of defendant’s wife. Cain was not allowed to cross-examine the psychotherapist as to the amount and relationship of the counseling to his offense.
HELD: The scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited: A defendant’s due process rights are protected when the probation report gives notice of the amount of restitution claimed and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing. The defendant does not have a state or a federal constitutional right to cross-examine the psychotherapist who provides counseling to the victim of the defendant’s crime. During the hearing, the prosecution repeatedly referred to a statement from the psychotherapist that the counseling was 100 percent related to the crime. There was no objection from Cain and no request to introduce the report into evidence. Affirmed.
Lindstrom v. Hertz
Case No. B128724
California Court of Appeal, Second District, Division Seven
ORDER
Modification of opinion filed on June 13, 2000, not affecting the judgment.
El Paso City v. America West Airlines
Case No. 98-16918
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-DISALLOWANCE OF TAX LIEN ON PERSONAL PROPERTY-TAX LIEN AVOIDABLE WHEN TRANSFER TO BONA FIDE PURCHASER
America West filed a petition for relief under chapter 11 of the Bankruptcy Code. On February 1, 1992, El Paso filed a proof of claim in America West's bankruptcy case for personal property taxes for the 1991 tax year. The bankruptcy court disallowed the claim, on he grounds that it was based on avoidable transfer. The district court affirmed.
HELD: The City's tax lien on America West's personal property arose under the Texas Tax Code. If a proof of claim is filed in a bankruptcy proceeding, the claim is allowed, unless a party in interest objects. The bankruptcy court is required to disallow a claim based on an avoidable transfer. The Tax code further provides that a tax lien may not be enforced against personal property transferred to a bona fide purchaser for value who does not have actual notice of the existence of the lien. Because a tax lien is an involuntary parting of an interest in property, it qualifies as a transfer within the meaning of the Bankruptcy Code; El Paso's lien is avoidable as a lien unenforceable against a bona fide purchaser. Affirmed.
Cornejo-Barreto v. Siefert, Warden
Case No. 98-56827
U.S. Court of Appeals for the Ninth Circuit
OTHER-PROCEDURE-EXTRADITION REQUEST BY MEXICO-REQUIREMENT OF REFERENCE TO SECRETARY OF STATE IF PRISONER LIKELY TO BE TORTURED IF EXTRADITED-JUDICIAL REVIEW OF SECRETARY'S DECISION TO ALLOW EXTRADITION
Cornejo-Barreto, a Mexican citizen is a lawful permanent resident of the United States, In 1991, a Mexican warrant for his arrest was issued on charges of homicide, robbery, injuries, deliberate property damage, kidnapping, and firing a weapon upon a person. An American magistrate found that he is likely to be tortured if he is surrendered to the requesting government, but nonetheless issued the extradition certificate. His habeas petition was denied the district court.
HELD: The United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment to which the United States is a party, prohibits extradition if torture is likely. A party seeking protection under the Convention must have the Secretary of State first must make a determination as to whether to extradite petitioner in light of a claim that the requesting government is likely to torture him upon surrender. Once a magistrate has certified to the Secretary of State that the individual is extraditable and any habeas review has concluded, the Secretary acts in her discretion to determine whether the person will be surrendered, via extradition warrant. The Secretary's implementation of the Torture Convention is subject to judicial review under the Administrative Procedures Act, although review may be limited by the regulations the Secretary promulgates. Affirmed the denial of habeas corpus relief, without prejudice to a new petition if the Secretary of state decides to surrender Barreto.
Duran v. City of Maywood
Case No. 97-55262
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-INSTRUCTIONS-STEALTH APPROACH-STANDARD OF CARE FOR HANDLING FIREARM-INVASION OF RESIDENCE-EVIDENCE OF OTHER ACTS OF POLICE OFFICER
The Durans filed a civil rights lawsuit against Officer Curiel and the City of Maywood after Officer Curiel shot and killed their son. The verdict was for the Defendants. The trial court excluded evidence of another shooting Officer Curiel was involved in three days after the Duran shooting and rejected instruction relating to a theory of liability under the Fourth Amendment; a rebuttable presumption under the California Home Protection Bill of Rights; and the third involved the standard of care required for handling a gun.
HELD: Although the officers had their guns drawn and did not announce their presence, these actions were entirely reasonable given that they were responding to a call that shots had been fired. They did not make a stealth approach. Under the facts in this case, a reasonable person in Duran's position would not have believed that the officers had unlawfully and forcibly entered his residence. The standard of care for an individual handling a firearm is the same as it is for other negligence actions -ordinary care under the circumstances. The trial court correctly denied all three proposed instructions. Other act evidence is admissible if: (1) there is sufficient proof for the jury to find that the defendant committed the other act; (2) the other act must not be too remote in time; (3) the other act must be introduced to prove a material issue in the case; and, (4) the other act must, in some cases, be similar to the offense charged. The trial court excluded the other act evidence based on the marginally probative value of the evidence was substantially outweighed by the danger of unfair prejudice. This was not an abuse of discretion. Affirmed.
Deppe v. United Airlines
Case No. 98-17382
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-AMERICANS WITH DISABILITY ACT-QUESTION OF WHETHER EMPLOYER REGARDED EMPLOYEE AS DISABLED PREVENTS SUMMARY JUDGMENT-EVIDENCE-EXPERT REPORT OF PHYSICAL CONDITION
Deppe was employed by United Airlines, as a mechanic. He was injured on the job in 1989 and received Workers' Compensation. Vocational rehabilitation included computer courses. In 1990 it was concluded that his back injury was permanent and stabilized. His condition precluded heavy lifting, stooping and bending. He also developed carpal tunnel syndrome. Deppe was placed on extended illness status. At the end of the period it was found that his injury could not be accommodated and he was terminated. Several months later he was cleared by his doctor to return to work, but United would not reinstate him. Deppe sued. Summary judgment was for United.
HELD: The Americans with Disabilities Act prohibits an employer from discharging a qualified individual with a disability solely on the basis of that employee's disability. The ADA defines "disability" with respect to an individual as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such an impairment; or, (C) being regarded as having such an impairment. To avoid a summary judgment disposition Deppe must show that at the time he was terminated there was at least a question whether United regarded him as having a physical or mental impairment that substantially limited his ability to work. The Court concluded that a genuine issue of material fact exists as to whether United regarded Deppe as disabled. The district court also failed to consider the report of Deppe's expert witness regarding his condition. Reversed.
Compton Impressions v. Queen City Bank
Case No. 98-56701
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-SURCHARGE TO SECURED CREDITOR FOR SERVICES RENDERED POST BANKRUPTCY-BENEFIT TO SECURED CREDITOR
Compton Impressions, Ltd. obtained a construction loan from Queen City Bank and several other banks. Compton defaulted in repayment and filed for Chapter 11 reorganization in Bankruptcy. The Banks agreed to two cash-collateral stipulations to allow Compton to complete the project and attempt to sell the residential units. Compton employed the services of Rutter, Hobbs & Davidoff as its law firm, and the Kaleson Group as its sales and marketing company. Compton's motion to surcharge the Banks for services rendered and expenses incurred by the RH&D law firm and by Kaleson, was denied, except for a $10,,000 attorney fee award.
HELD: Payment of administrative expenses from the proceeds of secured collateral is only allowed when incurred primarily for the benefit of the secured creditor or when the secured creditor caused or consented to the expense. Not only were the fees and expenses which were the subject of the surcharge motion unnecessary and unreasonable as to the Banks' recovery, the expenses did not benefit the Banks. The bankruptcy court did not clearly err in finding that Compton failed to meet its burden of establishing that the Banks quantifiably benefited from the services of the Debtor's professionals. The $10,000 award was justified by the bankruptcy court findings. Affirmed.
Schell v. Witek
Case No. 97-56197
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-NO RULING ON PENDING MOTION TO SUBSTITUTE COUNSEL-REQUIREMENT FOR DECISION ON MOTION TO SUBSTITUTE COUNSEL
Schell was accused of burglary. A public defender was appointed to defend him. There were disagreements on the method to combat the state's fingerprint evidence. Two days before trial, Schell's attorney informed the court of the conflict and that Schell wanted the court to relieve her and to appoint substitute counsel. The trial court did not rule on the motion because Schell was not present. The matter was transferred and the motion was never ruled on. The public defender continued to act as Schell's attorney. Schell was convicted. His requested "Marsden" hearing on his motion to substitute another attorney was denied and affirmed by the court of appeal.
HELD: There was sufficient evidence for a reasonable jury to convict Schell of residential burglary. The state trial court's failure to make a formal inquiry into the nature and extent of the conflict between Schell and his counsel was error. Furthermore, on the facts of this case, Schell's allegation that his counsel failed to consult a fingerprint expert could have constituted ineffective assistance of counsel if true. Remanded to the district court for an evidentiary hearing.
Wright v. Riveland
Case No. 97-36074
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DEDUCTIONS FROM OTHER INCOME RECEIVED BY INMATE-LIMITATION OF DEDUCTION FOR CERTAIN FEDERAL BENEFITS PAID TO INMATE
This class action challenged a Washington state statute, which provided that any outside money that a prison inmate received was subject to a percentage deduction under the Washington Revenue Code for crime victim compensation, part to a savings account for the inmate and part for costs of incarceration. The district court granted partial summary judgment in favor of the Class and declared the Statute void to the extent that it authorized funds to be deducted from Veteran's Administration benefits, Social Security benefits, proceeds from civil rights actions and certain funds distributed to Native Americans. Summary judgment was for the defendants on the remainder of the claims.
HELD: The 35% total deduction provided for by the Statute is not a "tax." Although the Washington state legislature enacted the Statute, the 35% deduction is only imposed on a select group of people: those inmates who receive funds from outside sources. Since this was not a tax the district court had jurisdiction. The Class did not plead, brief, or argue due process issues in the district court and are precluded from raising them on appeal. To demonstrate standing relating to the Excessive Fines claim, the Class must allege (1) an actual or imminent injury, which is concrete and particularized and not hypothetical or conjectural, (2) that the injury is fairly traceable to the challenged actions of the defendant, and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision. The Court found that the Class had standing. On the merits the Court concluded that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment. Consequently, if the deductions authorized by the Statute serve the purpose of retribution or deterrence, they are subject to Eighth Amendment scrutiny. The Court concluded that the victims' compensation deduction and the cost of incarceration deduction under the traditional goals of deterrence is punishment. The victim's compensation and cost of incarceration deductions, after passage of an amendment allowing an inmate to challenge a deduction, are not excessive as a matter of law. Deducting funds pursuant from benefits received from ERISA-qualified pension plans is not prohibited. Affirmed in part, reversed in part and remanded.
Association of American Medical Colleges, et al. v. United States
Case No. 98-56190
U.S. Court of Appeals for the Ninth Circuit
CIVIL-REQUIREMENT FOR CASE OR CONTROVERSY RIPE FOR SETTLEMENT-PROSPECTIVE AUDIT PROGRAM OF MEDICAL INSTITUTIONS FOR MEDICARE OVERPAYMENTS
A Government audit of a teaching hospital resulted in a refund of $30 million dollars in Medicare payments made to the institution. The government sought to expand the audit program. The medical hospital plaintiffs alleged that the audits are based on unlawful or retroactively applied standards for Medicare billing, and that settlements are coerced on threat of suit under the False Claims Act. They brought suit. The district court dismissed, on the grounds that the action is premature because there has been no final agency action, plaintiffs have adequate alternative remedies, and the issues are not ripe for adjudication.
HELD: It is well settled that injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy ripe for judicial resolution. In evaluating ripeness, courts assess both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. The general rule is that administrative orders are not final and reviewable unless and until they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process. Even final agency rules may not be fit for review unless the rule has been concretely applied to the plaintiff. Affirmed on the grounds that there is no case or controversy under Article III of the Constitution, and dismissed without prejudice.
United States v. Reyes-Platero
Case No. 99-50234
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-UNCONDITIONAL PLEA OF GUILTY CURES ALL ANTECEDENT DEFECTS-PROCEDURE-CHALLENGE OF INEFFECTIVE COUNSEL BY HABEAS CORPUS
Reyes-Platero was convicted of being a deported alien found in the United States. The INS agent who took him into custody did not inform him that he could contact the Mexican Consulate. The Pre Sentence Report recommended a sixteen-point increase to the base offense level because of his previous deportation for an aggravated felony. Platero successfully argued for a five- point downward departure based upon the modest nature of the previous felony.
HELD: The Court generally does not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects, and that portion of the appeal was dismissed. An unconditional guilty plea constitutes a waiver of the right to appeal all non-jurisdictional antecedent rulings and cures all antecedent defects, including does based on violation of treaty conventions. A defendant may still attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was inadequate. This argument has been waived by failure to raise this argument in his opening brief. Because the facts are insufficiently developed, and since Reyes-Platero's counsel secured a five point downward adjustment in the base sentence he was not obviously inadequate. Ineffective assistance of counsel attacks should generally be brought by habeas corpus proceedings. The Court refused to consider his ineffective assistance argument on direct appeal and affirmed his sentence.
Wasserman's Archived Appellate Summaries
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