Wasserman's Appellate Summaries
July 13, 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. Valencia
Case No. B134135
California Court of Appeal, Second District, Division Five
(Certified for partial publication.)
CRIMINAL-SECOND DEGREE MURDER SENTENCING-ENHANCEMENT FOR USE OF A FIREARM-APPLICATION OF SENTENCE ENHANCEMENT TO INFLICTION OF GREAT BODILY INJURY
Valencia, was convicted of: second degree murder; discharging a firearm into an inhabited dwelling; and grand theft of an automobile. It was also found that Valencia personally used a firearm within the meaning of the Penal Code. Valencia was sentenced to 25 years to life.
HELD: When defendant shot the decedent to death, an essential element of the firearm use enhancement at issue required the victim to suffer great bodily injury, as defined in the penal Code. The Penal Code provides that: Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he or she is convicted. The relevant section of the Penal code explicitly states that the great bodily injury enhancement does not apply to the crime of murder. After analysis of the statutory scheme and the intent of the Legislature the Court concluded that the 25 year to life sentence applied to the offense.
Rucker v. Workers' Compensation Appeals Board
Case No. B137562
California Court of Appeal, Second District, Division Four
WORKERS' COMP-DUE PROCESS-RESOLUTION BY WORKERS COMPENSATION JUDGE OF ISSUE NOT PRESENTED BY PARTIES
In 1991, petitioner, an employee of respondent, County of Los Angeles, suffered an industrial injury, which caused a 50 percent permanent disability. On December 5, 1995, the parties stipulated to an award payable weekly. In 1996 Rucker filed an appeal to the Board for the denial of her claim for vocational rehabilitation maintenance allowance plus penalties, interest, and attorney fees to provide notification in compliance with the statute. The court issued a notice of intent to allow VRMA for a disputed period in1995. The WCAB did not object to the tentative order, and it became final on August 7, 1997, leaving penalties, based on failure to pay PDA and VRMA at the same time, as the remaining issue for trial. The WCJ denied penalties and when a motion for reconsideration was made, that the payment of PDA was not in issue, because petitioner had failed to raise it, and found that Rucker had not requested the PD advance. Rucker's motion for reconsideration of the new findings was denied.
HELD: Contained in the WCJ’s own file was the letter from petitioner’s attorney, addressed to the WCJ, with a copy to respondent’s attorney, requesting that the WCJ address the issue of PDA "requested by Applicant 3/14/96." Rucker brought the subject up again on May 25, 1999, in a settlement conference before the WCJ, in the presence of opposing counsel. The WCAB admitted not paying PDA, based on a case citation. A WCJ may not resolve an unaddressed issue without first affording the parties an opportunity to offer rebuttal. This was a denial of due process. Annulled the order of the Board denying PDA and penalties and the matter is remanded for further proceedings.
Sacramento County Office of Education v. Workers' Compensation Appeals Board/DeBoard
Case No. C031864
California Court of Appeal, Third District
WORKERS' COMP-JURISDICTION-INTERRUPTION IN VOCATIONAL REHABILITATION-LOSS OF JURISDICTION AFTER FIVE YEARS
On June 9, 1993, DeBoard, a teacher’s aide, stepped into a hole, injuring her neck, back, leg and head. DeBoard participated in vocational rehabilitation plans but sought an interruption in rehabilitation because of a subsequent nonindustrial injury. She failed to restart vocational rehabilitation services within a prescribed five year period, and the County notified DeBoard that services were terminated. The WCAB granted her application for further services.
HELD: Vocational rehabilitation may be interrupted upon agreement of the employee and employer. DeBoard requested an interruption on October 6, 1997, and the County responded with a notice of interruption on October 9, 1997. The notice informed DeBoard that if she failed to request reinstatement of vocational rehabilitation services within five years of the date of injury, her right to request further benefits would terminate. In the present case, DeBoard obtained a suspension, which by its terms was to last only six months. The suspension expired on March 3, 1998, and DeBoard did not request an extension of the suspension prior to the expiration. Any implicit reservation of jurisdiction expires when the suspension expires. Since DeBoard requested no extension of suspension prior to March 6, 1998, the WCAB lost jurisdiction five years after the date of injury: June 9, 1998.
Turner v. Martire
Case No. E026082
California Court of Appeal, Fourth District, Division Two
CIVIL-IMMUNITY OF PUBLIC OFFICIALS-ACTS MUST BE DISCRETIONARY AND WITHIN SCOPE OF OFFICIAL DUTIES-ABSOLUTE IMMUNITY OF INDIAN TRIBE
The San Manuel Band of Mission Indians a federally recognized Indian tribe, owns and operates the San Manuel Indian Bingo and Casino, a gaming facility located on the Tribe’s reservation in San Bernardino County, California. Martire and other defendants are tribal law enforcement officers, but are not members of the Tribe. Turner is a union organizer. Turner was at the casino facility to speak with employees about their legal rights. Turner was taking photographs to document his activities. Martire approached Turner, demanded his camera, and pushed him. Turner was forced to the ground, kicked, pepper sprayed and his camera taken. He was detained and turned over to county sheriff deputies. Turner sued for assault and battery, false imprisonment, conversion, and violation of civil rights. The trial court found it did not have jurisdiction and dismissed the action.
HELD: Immunity generally has been afforded to tribal officials acting in their official capacity. However, federal case law shows that this immunity has its roots in the common law immunity traditionally afforded public officials for their discretionary acts in the performance of their duties, rather than in the absolute immunity enjoyed by tribes themselves. The Court concluded that to establish immunity defendants were required to show their conduct was discretionary in nature and within the scope of their official duties. The court found insufficient evidence on the present record to make the required showing. Reversed.
People v. National Automobile & Casualty
Case Nos. E025091/E025094
California Court of Appeal, Fourth District, Division Two
CIVIL-FORFEITURE OF BAIL BONDS-LIMITATION PERIOD FOR EXONERATION OF BAIL BOND-STIPULATION TO PROCEDURE IN EXCESS OF JURISDICTION-ESTOPPEL
National Automobile and Casualty posted two $15,000 bail bonds on behalf of Zobie in two felony actions in which he was charged. Zobie failed to appear for trial and forfeiture was ordered. The clerk mailed notice of that forfeiture the following day, June 4, thereby commencing the running of the 185-day period within which the Surety would be entitled to have the forfeiture vacated and the bond exonerated. The Surety motion to vacate the forfeiture was denied on November 7, 1997. On December 1, 1997, the Surety filed a motion for an order extending the 185-day period. Pursuant to that stipulation, on December 16, 1997, the trial court extended the 185-day appearance period to June 3, 1998, and later to November 30, 1998. On December 3, 1998 Summary judgment was entered for forfeiture. National's motion to set aside the judgment, on the grounds of lack of jurisdiction, was denied.
HELD: The court record indicating one of the bonds was exonerated was found to be an error in the record. Although the order to extend the date for exoneration of a bond is required by statute to be made before the statutory period expires, the Court found that a litigant who has stipulated or otherwise consented to a procedure in excess of jurisdiction may be estopped to question it. Additionally, in the written stipulations upon which the two orders extending the appearance period were based, National expressly agreed not to bring any action that directly or collaterally attacks any tolling order entered in this case. Affirmed.
People v. Lucero
Case No. S012568
Supreme Court of California
CRIMINAL-DEATH PENALTY APPEAL
The case arises out of murders in San Bernardino of two girls ages seven and ten. In 1981, defendant Lucero was sentenced to death after conviction for two counts of murder and found true an alleged multiple-murder special circumstance. In 1988, the judgment of guilt, including the special circumstance finding, was affirmed. The judgment of death was reversed, on the grounds that the trial court had improperly excluded certain mitigating evidence at the penalty phase of trial. At retrial, the jury again imposed the death penalty. The appeal issues related to the penalty phase of the trial and post traumatic stress disorder.
HELD: Affirmed.
People v. Castaneda
Case No. S069237
Supreme Court of California
CRIMINAL-STREET TERRORISM ENFORCEMENT AND PROTECTION ACT-MEANING OF ACTIVELY PARTICIPATE IN CRIMINAL STREET GANG
Two young male persons reported their robbery at gunpoint and identified Castaneda as one of the perpetrators. Prior to the robbery Santa Ana police officers saw Castaneda in the presence of known Goldenwest gang members; on three of these occasions they gave him written notice that Goldenwest was a criminal street gang. Castaneda was convicted of robbery, attempted robbery, and active participation in a criminal street gang. The Court of Appeal affirmed.
HELD: The Street Terrorism Enforcement and Protection Act provides that, any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment. A person "actively participates" in some enterprise or activity by taking part in it in a manner that is not passive. Giving these words their usual and ordinary meaning, the statutory language "actively participates in any criminal street gang" means involvement with a criminal street gang that is more than nominal or passive. Affirmed.
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