Wasserman's Appellate Summaries
July 31, 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. Mendoza
Case No. S067104
Supreme Court of California
CRIMINAL-FAILURE OF JURY TO SPECIFY DEGREE OF MURDER-EXCEPTION TO ATTRIBUTING LESSER DEGREE OF OFFENSE TO MURDER
Mendoza was charged, tried for and convicted of felony murder, robbery and burglary. At his trial Mendoza did not contend the jury could convict him of a degree or form of criminal homicide other than first degree felony murder. Nor did he ask the trial court to instruct the jury on lesser included offenses; his counsel agreed that because the prosecution had presented only a first degree felony-murder case, instructions relating to specific intent for other forms of first degree murder were unnecessary. Thus, Mendoza’s counsel expressly declined to request instructions on malice aforethought and premeditation and deliberation. At other points during the discussion of the instructions, Mendoza’s counsel expressed his understanding that the prosecution’s only murder theory was first degree felony murder. The Court of Appeal affirmed the judgment.
HELD: Under the Penal Code; whenever a defendant is convicted of a crime which is distinguished into degrees, the trier of fact must find the degree of the crime of which he is guilty. Upon the failure of the trier of fact to so determine, the degree of the crime it, shall be deemed to be of the lesser degree. That section of the Penal code does not apply to the instant case since the defendant has not been convicted of a crime which is distinguished into degrees. The conviction is not deemed to be of the lesser degree. Affirmed.
People v. Jorge M., a Juvenile
Case No. S074270
Supreme Court of California
CRIMINAL-POSSESSION OF AN ASSAULT WEAPON-ACTUAL KNOWLEDGE OF CHARACTERISTICS OF AN ASSAULT WEAPON NOT REQUIRED-REQUIRED MENS REA IS REASONABLY SHOULD HAVE KNOWN OF ASSAULT WEAPON CHARACTERISTICS-ASSAULT WEAPONS CONTROL ACT
Jorge M., a minor, was adjudicated a ward of the juvenile court and ordered into a juvenile camp program, in part because he was found to have been in possession of an assault weapon, The Court of Appeal reversed that finding on the ground the record contained insufficient evidence the minor knew the firearm had the characteristics bringing it within the definition of an assault weapon under the Assault Weapons Control Act.
HELD: The Supreme Court agreed with the Court of Appeal that the statute's alternative felony/misdemeanor punishable by up to three years in state prison was not intended to define a strict liability offense. The Court disagreed that actual knowledge regarding the firearm’s prohibited characteristics is required. Such a requirement would be inconsistent with the public safety goals of the AWCA. Effective enforcement of that law demands, instead, that a conviction be obtainable upon proof of negligent failure to know, as well as actual knowledge of, the weapon’s salient characteristics. All that must be proved is that a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the AWCA. The record of this case contains sufficient evidence to prove the requisite mens rea. Reversed the Court of Appeal.
People v. Frawley
Case No. A088519
California Court of Appeal, First District, Division Four
CRIMINAL-EX FELON IN POSSESSION OF NON CONCEALABLE FIREARM AFTER PRIOR STATUTORY EXPUNGEMENT/DISMISSAL OF CHARGE FOR WHICH CONVICTED
Frawley had a felony conviction in the early 1990s. In 1997, the court dismissed that conviction under the statutory provisions for such dismissal. (The Court expressly declined to refer to the dismissal procedure as an expungement.) In 1999, he was charged with various controlled substance violations, possession by an ex-felon of ammunition, and possession by an ex-felon of a firearm (a shotgun and rifle). Frawley's motion to dismiss was granted as to the possession of a firearm charge, but denied as to the possession of ammunition charge.
HELD: The Penal Code provides that it is a felony for any person who has been convicted of a felony to possess any firearm. Under the statute for dismissal of a prior offense it is stated that, one who obtains the relief provided shall thereafter be released from all penalties and disabilities resulting from the offense. If this language stood alone, it would almost certainly be understood to effect a true "expungement," such that the prior conviction would cease to exist. The statute does not purport to render the conviction a legal nullity. Instead it provides that, except as elsewhere stated, the defendant is released from all penalties and disabilities resulting from the offense. The statute contains a sweeping limitation on the relief it offers, stating that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. In an amendment to the statue it was provided that, dismissal of an accusation or information pursuant to the provision for dismissal does not permit a person to own, possess, or have in his custody or control, any firearm capable of being concealed upon the person or prevent his conviction for possession of a firearm. The Court interpreted the legislative intent to still make it a crime for an ex felon to be convicted of possession of any firearm, concealable, or non-concealable. Reversed the dismissal of the possession of a firearm charge by a felon.
County of Los Angeles v. Superior Court/Axelrad
Case No. B134958
California Court of Appeal, Second District, Division Two
CIVIL-USE OF CALIFORNIA PUBLIC RECORDS ACT IN LIEU OF DISCOVERY IN PENDING CASE-EXCEPTIONS TO REQUIREMENT TO PRODUCE GOVERNMENT RECORDS
Axelrad is an attorney. He sought disclosure of certain documents relating to three civil actions by former inmates of the County jail who allegedly were over-detained. When the discovery motions were denied, Axelrad filed with the County two requests pursuant to the California Public Records Act seeking the identical documents. The County refused to disclose or provide access to the requested documents. Axelrad sued under the CPRA. The trial court rejected the County's assertion of the deliberative process privilege, since there was nothing in the record to support the privilege. The trial court ordered the County to provide all the records requested except certain information relating to jail security.
HELD: The CPRA makes clear that every person has a right to inspect any public record for any purpose subject to certain exemptions. In addition to listing of various exceptions, the statute provides that even if the record does not fall within one of the express exemptions, the record still can be withheld if the government can demonstrate that on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. Although Axelrad filed his CPRA request in an attempt to obtain documents for use in the over-detention cases, he was permitted to do so under the CPRA, which provides that there are no limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure. A peremptory writ of mandate issued. directing respondent court to vacate its order granting real party in interest Adam Axelrad’s CPRA motion to compel the production of certain documents in the possession of the Los Angeles County Sheriff’s Department, and to thereafter conduct in camera reviews to determine if in order to determine whether the deliberative process privilege is applicable.
People v. Bohannon/Hageman
Case No. B115308
California Court of Appeal, Second District, Division Two
(Certified for publication with the exception of the factual summary, appellants’ contentions and parts 2 and 4 - 10.)
CRIMINAL-DISCLOSURE OF PROSECUTION EVIDENCE-ALTERNATE PROCEDURE UPON RESTRICTION OF DISCOVERY OF ADDRESSES OF TWO PROSECUTION WITNESSES-SENTENCING-FIVE DAY PERIOD FOR REVIEW OF PROBATION REPORT REQUIRED
Bohannon was convicted of seven counts against five victims as follows: one count of rape by use of drugs; one count of rape of an unconscious person; four counts of conspiracy to rape by use of drugs; and, one count of attempted rape by use of a drug. Bohannon was sentenced to 19 years in state prison. His accomplice, Hangman was convicted of 43 counts against 14 victims and sentenced to 77 years. Prior to trial the trial court made an order that the defense not contact any victim in the case so long as the district attorney would make the victims available for interview by the defense. A request for the addresses of two prosecution witnesses was denied. The procedure established by the court order was followed as to the two witnesses that Bohannon requested be deposed. After his conviction Hageman's counsel made a clear and unequivocal objection to proceeding with sentencing without having at least the statutorily required five days to read, consider and respond to the 42-page probation report. The court denied the request and proceeded to sentence the defendant.
HELD: The obligation of the People to disclose information to the defense is dependent upon whether that obligation has a constitutional or statutory basis. The prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. To prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right of a defendant, the defendant must establish that the information not disclosed was exculpatory and that there is a reasonable probability that, had the evidence been disclosed, the result of the proceedings might have been different. On the record presented, Hageman's contention is without merit. The sentencing procedure followed by the trial court was in error. The probation report is required by statute to be made available to the court and the prosecuting and defense attorneys at least five days, or upon request of the defendant or prosecuting attorney, nine days prior to the time fixed by the court for the hearing and determination of the report. Even though Hangman was presumptively ineligible for probation on most of the counts of which he was convicted, his counsel was entitled by statute to the five-day continuance, which he unequivocally requested. Hageman is entitled to a remand for resentencing. Hageman's claim of sentencing error lacks merit. Affirmed both convictions. Remanded for resentencing as to Hangman only.
People v. Matelski
Case No. E025259
California Court of Appeal, Fourth District, Division Two
CRIMINAL-PROCEDURE-DISMISSAL OF COMPLAINT AT PRELIMINARY HEARING-MOTION TO REINSTATE BY PROSECUTION-UNREASONABLE SEARCH AND SEIZURE-DETENTION OF PERSON ASSOCIATING WITH PROBATIONER SUSPECTED TO BE IN VIOLATION OF TERMS OF PROBATION
Michael Mitchell was on probation. When he failed a drug test officers went to his residence to conduct a search. The officers encountered Mitchell and defendant, Matelski exiting the residence. Both defendants had outstanding arrest warrants. Both were arrested and searched. Methamphetamine and two marijuana pipes were found in Mrs. Matelski’s purse. Each defendant told the officers that the methamphetamine belonged to Matelski. Matelski's motion to suppress was granted. The prosecution's motion to reinstate the complaint was denied.
HELD: It appeared to the Court that the magistrate was so thoroughly confused that he handled Matelski's suppression motion as if it were a preliminary hearing and was unclear as to the basis for dismissal of the action. The Penal Code provides that, when suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint or, in the alternative, the people may move to reinstate the complaint. The procedure followed by the prosecution was proper, as was the appeal. Since the Constitution proscribes unreasonable searches and seizures, it is the job of the courts to determine reasonableness in individual cases. Because that issue is a question of law, the appellate court is not bound by the substantial evidence standard in reviewing the trial court’s decision, but uses its independent judgment. Although there was some intrusion on the privacy interests of the Matelski as a result of the probation search, such intrusion was minimal and not unreasonable in the light of the officer’s duty to ascertain if Mitchell was violating the terms of his probation. The officers simply had no other way to enforce the probation term that Mitchell not associate with known felons unless they could identify his associates and determine whether they were known felons or not. They did so in a minimally intrusive manner, and we find that the intrusion did not violate the privacy rights of defendants. There was a legitimate governmental interest in this case for detaining Matelski to determine who he was and if he had any information concerning the juvenile for whom they were searching. The extent of the intrusion here was minimal. Reversed and remanded with directions.
People v. Mooc
Case No. G023714
California Court of Appeal, Fourth District, Division Three
ORDER-CRIMINAL-DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS
Modification of opinion filed on June 30, 2000, not affecting the judgment.
United States v. Reyna
Case No. 99-10333
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-MOTION TO SUPPRESS WIRETAP-APPROVAL REQUIRED BY OFFICE OF DEPARTMENT OF JUSTICE BEFORE WIRETAP MAY BE APPROVED
In 1997, Assistant United States Attorney Pougiales submitted to the Office of Enforcement Operations of the United States Department of Justice, in Washington D.C., a draft application to intercept communications over a cellular telephone line. Usual practice was that the OEO staff attorney assigned to the application would inform Pougiales that whether approval would be recommended. The application was then taken to the assigned judge so that the application could be reviewed in preparation to approve it, after the application was authorized. After oral notification that the application would be approved it was taken to the assigned judge. The government commenced the wiretap within minutes after receiving facsimile approval. The next Monday morning, Pougiales submitted the authorization memorandum to the Judge, who filed an order attaching the authorization memorandum, along with the order designating the Attorney General's agents to the application, and ordered the application itself amended to reflect that a Deputy Assistant Attorney General authorized the application, instead of the Acting Assistant Attorney General named in the application. Reyna's motion to suppress was granted, on the ground that the required authorization of the application was not obtained before submitting it to the district court.
HELD: The Omnibus Crime Control and Safe Streets Act, establishes the procedure by which law enforcement officials may obtain judicial authority to intercept communications. The Act plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order. The district court correctly suppressed the evidence procured by the unlawful interception of communication. Affirmed.
United States v. Romero-Rendon
Case No. 99-50137
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-SENTENCING-ENHANCEMENT FOR PRIOR CONVICTION-PRESENTENCE REPORT REFERRING TO SPECIFIC STATUTE FOR DEFENDANT'S PRIOR AGGRAVATED FELONY CONVICTION IS CLEAR AND CONVINCING EVIDENCE
The opinion filed December 7, 1999, and reported at 198 F.3d 745 was withdrawn and a new opinion filed. Romero-Rendon was arrested as he attempted to enter the United States illegally. He pleaded guilty to one count of being a deported alien found in the United States. The probation Presentence Report recommended that Romero-Rendon's base offense level be eight and that he had a Criminal History Category of II. The PSR also recommended that the base offense level be increased sixteen levels under the Sentencing Guidelines, which provides for such upward adjustment where the defendant-alien has been previously deported following a conviction for an aggravated felony (a crime of violence for which the term of imprisonment is at least one year). Romero objected to the accuracy of the PSR and asserted the nature of the previous conviction must be established by the judgment or commitment documents from the previous conviction, his "rap sheet," or deportation documents. The district court rejected his motion and found that he had committed an aggravated felony.
HELD: In most cases, the government bears the burden of proving factors enhancing a sentence by a preponderance of the evidence. When a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction the government may have to satisfy a clear and convincing standard. The court may rely on an unchallenged PSR at sentencing to find by a preponderance of the evidence that the facts underlying a sentence enhancement have been established. Judges may rely on any information for sentencing purposes, so long as it has sufficient indicia of reliability to support its probable accuracy. The PSR included the specific statute of conviction, which gave the judge all the information that Romero-Rendon claims he needed to decide that his prior conviction was for an aggravated felony. The uncontroverted PSR, the only evidence before the sentencing judge, provides clear and convincing evidence of the previous conviction. A PSR may be clear and convincing evidenced of a prior felony. Affirmed.
Pacheco v. United States
Case No. 99-15421
U.S. Court of Appeals for the Ninth Circuit
TORTS-DUTY TO WARN OF HAZARD ON ADJACENT PROPERTY-IMPLIED INVITATION TO PLAY IN WATER IN AREA OF BEACH RIP CURRENTS
The Pfeiffer Beach Day Use Area, is a public recreational area, which is part of the Los Padres National Forest, in the Big Sur area of the Pacific Coast. It is managed by a private company under license from under a special use permit from the Forrest Service. The Forest Service promotes the beach in the area as the first of Big Sur's truly great beaches. It does not provide any notice of the particularly hazardous surf with strong riptides and undercurrents. The Pacheco family came from Kansas and visited the beach. One child was playing and wading, not swimming, in a calm portion of the water, the surf rolled up on the Beach. It caught child, and the riptide swept her out into the ocean where she drowned. Her mother and her grandmother both rushed to save Ivy, but they too were caught by the riptide and carried into the ocean where they also drowned. The husband and father filed this action. The defendant's motion to dismiss was granted.
HELD: The Court distinguished the California cases holding that, since the beach owner did not create the hazard there was no duty to protect against the hazard. In this case, by handing out toys (a pail with a perforated bottom) that implicitly suggested that children play in the water and by instructing beach-goers on all the things they should not do yet omitting any instructions about children playing in the water, the landowner did create the danger. This situation has the elements of something similar to entrapment, not criminal, but civil. While defendants could not eliminate the hazards in the ocean, they could satisfy their duty to appellants by posting or distributing warnings on the property under their control. Reversed and remanded.
United States v. Hicks
Case No. 99-10352
U.S. Court of Appeals for the Ninth Circuit
ORDER-FALSE STATEMENTS TO A FEDERALLY INSURED FINANCIAL INSTITUTION
Modification of opinion filed June 12, 2000, not affecting the judgment.
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page