Wasserman's Appellate Summaries
July 27, 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. Camacho
Case No. S075720
Supreme Court of California
CRIMINAL-SEARCH AND SEIZURE-FOURTH AMENDMENT-OBJECTIVELY REASONABLE EXPECTATION OF PRIVACY-OBSERVATION OF POLICE OFFICERS WHILE TRESPASSING
When they arrived at the residence there was no excessive noise. They did not knock at the door, but went to the side yard, looked through a window and observed Camacho packaging cocaine. Camacho's motion to suppress was denied and he pleaded guilty to possession of a controlled substance. The Court of Appeal held the police violated Camacho’s right to be free of unreasonable searches and seizures under the Fourth Amendment and, reversed the trial court.
HELD: The Fourth Amendment provides; the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. The key question in reviewing a question of search and seizure is whether there was an objectively reasonable expectation of privacy. Accepting the facts as determined in the trial court, the appellate court exercises independent judgment in reviewing this question. Observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. In this case the officer was trespassing on Camacho's property. Affirmed the Court of Appeal.
People v. Hill
Case No. S077706
Supreme Court of California
CRIMINAL-KIDNAPPING-CARJACKING-AN INFANT MAY BE A VICTIM OF CARJACKING EVEN IF NOT CAPABLE OF GIVING OR WITHHOLDING CONSENT TO THE TAKING OF THE VEHICLE
The victim was in front of her Spring Valley home removing her infant child from the car. She was accosted by Hill and another, who forced her to give them her car keys. Hill and his accomplice kidnapped her and the baby and she was raped before being able to escape. Hill was convicted of kidnapping and car jacking of both the victim and the infant child. The appellate court reversed the carjacking conviction as to the infant, since this crime requires that the perpetrator act against the victim’s will and by means of force or fear.
HELD: The statutory provision for kidnapping requires a carrying away of a person forcibly, or by any other means of instilling fear. The Court finessed the question and held that in this case the jury could have found that could find it was directed at both. In regard to the carjacking offense, the statute requires, that the taking of the vehicle be against the will of the victim and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. The Court concluded that the Legislature did not intend to preclude an infant from being the victim of a carjacking. The potential for harm in a carjacking is not less because the victim is an infant who is incapable of giving or withholding consent. What the Legislature most likely meant by "against his or her will" was merely the absence of lawful consent, not an affirmative act of free will. Reversed the carjacking judgment of the Court of appeal and affirm the balance of the judgment and remanded.
People/Lockyer, Attorney General v. Pacific Gaming Technologies
Case No. B134202
California Court of Appeal, Second District, Division One
OTHER-MACHINE SALE OF TELEPHONE CALLING CARDS WITH LOTTERY FEATURE-SLOT MACHINE GAMING DEVICE
Pacific Gaming Technologies places VendaTel vending machines in bus stations, truck stops, and other places where people are likely to buy prepaid telephone calling cards. Unlike ordinary vending machines, the VendaTel has a "sweepstakes" feature that pays out money. When PGT sought to market the machines in California it sought an opinion from the California Attorney General. The Attorney General sought a declaratory opinion from the court. The trial court found that the machines were not slot machines.
HELD: Once the element of chance is added, people are no longer paying just for the product regardless of the value given that product by the vendor. The VendaTel looks like a slot machine. It acts like a slot machine. It sounds like a slot machine. If it looks like a duck, walks like a duck, and sounds like a duck, it is a duck. And so it is with this duck. Reversed and remanded with directions to enter a new judgment.
Winikow v. Superior Court/Schroeder
Case No. B138616
California Court of Appeal, Sixth District, Division Four
OTHER-MONETARY SANCTION IMPROPERLY ASSESSED-AWARD OF COSTS TO ATTORNEY SECURING WRIT OF MANDATE COMPELLING VACATION OF SANCTION
Winikow is an attorney. He filed suit for plaintiff, Schroeder before receiving a right to sue letter for wrongful termination. The complaint alleged only common law causes of action. The Superior court served a notice of status conference on Winikow, with directions that he serve it on all defendants. Several days before the scheduled status conference Winikow advised the court that the complaint had not been served, because of the planned amendment after receiving a right to sue letter. Forty days before the status conference Winikow mailed defendant, Haight, Brown a letter notifying them of the status conference and explaining the reason why the complaint had not been served on them. Thirty days before the status conference the complaint was served on defendant, Haight, Brown, who did not make an appearance at the status conference and an OSC was issued. At the OSC Winikow received a monetary sanction of $150. Winikow sought a Writ of Certiorari. The appellate court issued an Alternative Writ of Mandate. In response to the alternative writ the Superior court issued an order vacating the $150 sanction. Winikow then sought the costs he had incurred in securing the writ. The Superior Court responded that it was immune from an award of costs.
HELD: The court’s basis for imposition of sanctions against petitioner is not supported by the record and thus, was an abuse of discretion. The service of the notice of status conference by mail, before service of the complaint was not required by statute. The record does not support petitioner’s conclusion that the trial court acted in excess of its jurisdiction. Mandate issued requiring the payment of $150 to Winikow. Each party to pay its own costs.
United States v. Andra
Case No. 99-30296
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-UNCONDITIONAL PLEA OF GUILTY ADMITS ALL ELEMENTS OF CRIME CHARGED-SENTENCING
Andra became associated with The Pilot Connection Society. He pleaded guilty to conspiracy to defraud the United States and corrupt intimidation of and interference with IRS agents.
HELD: Andra's unconditional guilty plea admitted that the TPCS conspiracy involved falsely representing that TPCS would permanently and legally remove any obligation to pay income taxes and charging fees for an "untaxing package" including forms to remove the obligation to maintain records, file income tax returns or pay income taxes. TPCS also falsely represented that their products would remove IRS liens or levies and resolve old tax problems. The objectives of the conspiracy were to impede or impair the IRS and to resist IRS assessment and collection efforts by deceitful means, including advising and encouraging members to close bank accounts, cancel credit cards, refuse to file tax returns, claim excessive exemptions on withholding forms and place assets in nominee names. The government concedes that some penalties and interest were improperly included in the tax loss calculation. Sentence vacated and remanded.
Alameda Books v. City of Los Angeles
Case No. 98-56200
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-FIRST AMENDMENT-FREE SPEECH-MUNICIPAL ORDINANCE PROHIBITING MORE THAN ONE TYPE OF ADULT ENTERTAINMENT IN THE SAME LOCATION
In 1977, the City prohibited the establishment, substantial enlargement or transfer of ownership or control of an adult business establishment within 1,000 feet of another such business or within 500 feet of any religious institution, school or public park within the City of Los Angeles. In 1983 the ordinance was amended to provide that: the establishment or maintenance of more than one adult entertainment establishment in the same building, structure, or portion thereof was prohibited. The ordinance specifically categorized an "adult bookstore" and an "adult arcade" as separate adult entertainment businesses even if operated in conjunction with another adult entertainment business at the same establishment. Alameda rents and sells sexually oriented products and has viewing booths for videotapes. In 1995 the City brought an action for violation of the ordinance and Alameda cross-complained for declaratory relief. Summary judgment was for Alameda.
HELD: In order to pass First Amendment scrutiny on the right to freedom of expression the regulation must be content-neutral. The ordinance must be aimed to control secondary effects resulting from the protected expression rather than at inhibiting the protected expression itself. There also must be a substantial government interest in reducing crime in its neighborhoods. There is nothing in the case to indicate that the same type of behavior that occurs in viewing booths in combination bookstore/arcades would not occur in an establishment that only furnishes an arcade. The 1977 study and studies from other states relied by the City were inadequate. Affirmed.
United States v. Lindberg
Case No. 99-10371
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-HYDE AMENDMENT-RECOVERY OF FEES BY CRIMINAL DEFENDANT ALLOWED WHEN PROSECUTION WAS VEXATIOUS, FRIVOLOUS OR IN BAD FAITH
A grand jury in Hawaii returned an indictment against Lindberg and other members of his family; charging them with conspiracy to defraud the government of federal income taxes and conspiracy to structure and assist in structuring currency transactions with domestic financial institutions for the purpose of evading certain reporting requirements. Lindberg was 17 years old when the alleged conspiracy began in 1988 and 21 when it ended in 1992. In essence the charges were based on his assistance in depositing cash skimmed from his mother's bar operations, depositing the cash in amounts less than $10,000 and later withdrawing the funds in a cashier check. After trial began the government dismissed Lindberg from counts 2 through 32, which involved the substantive offense of structuring and which served as the basis for the forfeiture count. Two weeks later Lindberg was found guilty of count 1, the conspiracy charge. The district court then entered a judgment of guilty on the forfeiture count. His conviction on count 1 and the forfeiture count were reversed on appeal. Lindberg filed a motion for costs and fees pursuant to the Hyde Amendment, alleging that the government's prosecution of him was vexatious, frivolous, or in bad faith. The motion was denied.
HELD: The Hyde Amendment allows a court to award litigation expenses to a prevailing criminal defendant where the government's position was vexatious, frivolous, or in bad faith. Appellate review of a decision under the Hyde amendment is for abuse of discretion. In order to recover expenses, a defendant must show more than that the government's position was not substantially justified. The fact that the conviction was reversed on appeal is not per se proof of bad faith. No abuse of discretion was shown. Affirmed.
In Re: National Environmental Waste Corporation
Case No. 98-55597
U.S. Court of Appeals for the Ninth Circuit
ORDER-BANKRUPTCY-STATUTE OF LIMITATIONS
Amendment to opinion filed on January 18, 2000, not affecting the judgment.
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