Wasserman's Appellate Summaries
August 2, 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. Downey
Case No. B136294
California Court of Appeal, Second District, Division Two
CRIMINAL-SENTENCING-DISCRETION TO GRANT PROBATION-STATEMENT OF REASONS FOR CONSECUTIVE SENTENCES FOR MULTIPLE OFFENSES-FAILURE TO SPECIFY WHETHER MISDEMEANOR SENTENCES WERE TO BE CONSECUTIVE-WAIVER OF OBJECTION TO COURTS REASONS FOR CONSECUTIVE SENTENCING-ALLOWANCE OF CREDITS FOR TIME SERVED
This case concerns the well-publicized antics involving controlled substances of the movie actor, Robert Downey Jr. Downey, Jr., was placed on probation after his plea of no contest to possession of cocaine, misdemeanor driving under the influence of alcohol and/or drugs, misdemeanor possession of a concealed firearm in a vehicle, and misdemeanor being under the influence of a controlled substance. His probation was revoked when he failed to submit to testing. He appeals from the judgment entered following revocation of probation. He raises some 14 specific errors in his appeal.
HELD: A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. The trial court abused its discretion in refusing to reinstate probation and in sentencing Downey to prison. It is clear that the trial court did not abandon its role as an impartial judicial officer, and to the extent Downey asserts judicial bias, this claim is waived for failure to raise an appropriate objection in the trial court. The trial court stated that a statement of reasons for consecutive sentencing was not required as to misdemeanor counts and the opinion that the felony term has to be served under the law consecutive to the misdemeanor. This represents an incorrect understanding of the law, which imposes no such requirement. When a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. The court's failure to specify whether the misdemeanor counts were to be consecutive or concurrent requires that they be deemed concurrent. The Penal Code states that, upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently. Appeal of a trial court’s statement of reasons for discretionary sentence choices, are waived where there is no objection so long as the defendant had a meaningful opportunity to object. To the extent there were no objections to the trial court’s reasons, these claims are waived. In compliance with the statute the trial court gave a lengthy statement of reasons for its denial of probation and imposition of a prison term. The trial court’s misstatement that the weapon was in the glove box at the time of Downey’s first offenses is harmless. The trial court did not improperly rely on his addiction as an aggravating circumstance, as asserted in the appeal. Downey was found to be entitled to 53 days credit for time served while in a residential drug rehabilitation program. Bail is appropriate, since with the additional credits granted he has served all the time required. Remanded for consideration of sentencing issues.
Philip/Antiochian Orthodox Christian Archdiocese v. Steiger/Press
Case No. H019638
California Court of Appeal, Sixth District
(Certified for publication with the exception of part B of the Discussion.)
OTHER-CHURCH FACTION DISPUTE
The church at issue here is located in Ben Lomond, California and part of the Evangelical Orthodox Church. Many of its members were among a group of persons who sought to worship as a true New Testament church. The EOC joined with the Antiochian Eastern Orthodox Church, presided over by Metropolitan Philip. Eleven years later, all but two of the dozen priests who led the Ben Lomond parish applied to Philip to leave Antioch. Philip responded by laicizing some of the priests, suspending the others, and sending new priests to lead the Ben Lomond parish. Antioch subsequently filed suit seeking a legal determination that it is the rightful owner of the Ben Lomond parish’s property, despite the fact that title stands in the name of a corporation formed before the EOC churches joined Antioch Judgment was in favor of Antioch.
HELD: The real question in this case was not whether the property belonged to the general church or to a seceding local church, but rather which of the two local groups is entitled to possession and use of the property. Civil courts are not equipped to resolve disputes over which faction represents the "true church." Affirmed.
West Sheild Investigations/Pathfinders' Way v. Superior Court/Eymil
Case Nos. H019973/H019976
California Court of Appeal, Sixth District
CIVIL-EMANCIPATION OF MINOR AS ENDING TOLLING PERIOD TO BRING A CAUSE OF ACTION
Sixteen year-old Charleen Eymil was a problem child. Her parents contracted with West Shield Investigations and Security Consultants to transport her to a six week wilderness program conducted by Pathfinders. She had numerous complaints of the methods employed and her treatment in being transported and at the program. After her return to the Bay Area, Eymil was emancipated from her parents by court order on May 8, 1995. Eymil turned 18 on September 8, 1995. On September 9, 1996, Eymil filed a lawsuit with eleven cause of action against Pathfinders, West Shield, and several individual defendants. Defendant's motion for summary adjudication, on the ground the one-year statute of limitations for personal injury claims had passed, was denied. Pleading defects were asserted as to the other causes of action. The trial court denied the motions for summary judgment.
HELD: Any statute of limitations which applies to the claims of a minor is tolled until the minor reaches the age of 18. The Emancipation of Minors Law specifically includes among its purposes the removal of the minor’s incapacity to sue or be sued in the minor’s own name. The statute of limitations for he personal injury claims expired one year from her emancipation. A purported nunc pro tunc order three years after her 18th birthday, stating that her right to be sued or sue was tolled until she reached 18 years of age was ineffective. The statute of limitations applicable to the Unruh Civil Rights Act claim is also subject to the one year statute of limitations. The denial of summary adjudication of her misrepresentation and related claims were properly denied. Issues of reliance and such cannot be decided on summary judgment. Mandate issued granting and denying the petition in part.
United States v. Zamora-Hernandez
Case No. 99-50068
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DENIAL OF CONTINUANCE OF RETRIAL FOR PURPOSE OF REVIEWING TRANSCRIPT OF PREVIOUS MISTRIAL
Zamora-Hernandez was convicted of transporting illegal aliens. His first trial had ended in a hung jury. He then made a motion to continue his retrial until he could secure a copy of the transcript of the trial. The motion was denied. The transcript was received during the second trial and Zamora was able to use part of it during the trial.
HELD: There are four factors to consider in reviewing the denial of the motion to continue: 1) the diligence of Zamora in preparing his defense prior to the trial date; 2) whether the continuance would have satisfied his needs; 3) the inconvenience a continuance would have caused the court and the government; and, 4) the extent to which Zamora might have suffered harm as a result of the district court's denial. The fourth factor is most critical. Assuming without deciding that the other three factors weigh in Zamora's favor, he must still demonstrate that he suffered prejudice. The delay in receiving the transcript did not prevent Zamora from fully presenting any evidence in his defense. There was no prejudice. Affirmed.
Chand v. Immigration and Naturalization Service
Case No. 98-70541
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ACTS ARISING TO LEVEL OF PERSECUTION-PERSECUTION ON PROTECTED GROUND-REVIEW UNDER TRANSITIONAL RULES OF ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT
Chand and his wife entered the United States on temporary visitor visas, but overstayed their time and then applied for asylum and withholding of deportation. The INS hearing transcript showed that Chand is a Hindu Indian from Fiji who worked as a foreman in a shop of cabinetmakers; he was not politically active. He lived in a small village on the island of Latouka. Two-thirds of the people in the village were ethnic Fijians while the other one-third were Indian Fijians. After a coup in 1987 Indian Fijians were subjected to severe persecution, including physical attack. The U.S. State Department publication stated that any persecution after the coup was short lived. The BIA affirmed the IJ finding that the incidents testified to by Chand did not involve a protected ground and were due to general conditions of unrest.
HELD: Because Chand was placed in deportation proceedings prior to April 1, 1997, and his deportation order became final after October 30, 1996, his case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act. The Court found it evident that the harm Chand suffered rises to the level of persecution, and conclude that no reasonable fact-finder could have found otherwise. An applicant may suffer persecution because of the cumulative effect of several incidents, no one of which rises to the level of persecution. The BIA erred in concluding that the harm Chand suffered was not on account of a protected ground. The record is replete with evidence that Indians are the victims of racially motivated assaults and other crimes committed against them by ethnic Fijians, and that the Fijian police are sometimes either unwilling or unable to control such crime. No reasonable fact-finder could find that he was not persecuted on account of a protected ground. The petition for review was granted and the matter remanded.
United States v. Sesma-Hernandez
Case No. 99-10491
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-REVOCATION OF SUPERVISED RELEASE-INSUFFICIENT NOTICE OF CHARGES IN STATE COURT ACTION-EXCLUSION OF EVIDENCE-ORAL FINDINGS OF FACT AS DENIAL OF DUE PROCESS
A petition to revoke the supervised release of Sesma-Hernandez was filed, based on a complaint of misdemeanor domestic violence filed in the Las Vegas Municipal Court. Other violations to the terms of the release were added by amendment.
HELD: The fact that the petition to revoke his release did not set forth the specific state statute under which he was charged does not constitute insufficient notice of the charges. The charges were identified by statutory reference in the state complaint and the specific acts described in the petition. Excluding testimony of a witness that they could only identify Sesma and not the women he was beating was harmless. Oral findings of the facts on the record will suffice in the absence of written findings. The evidence in the record was clearly sufficient to establish the charged violations. There was no denial of due process. Affirmed.
Coufel & Coufel Abogados v. AT&T/Lucent Technologies
Case No. 98-56988
U.S. Court of Appeals for the Ninth Circuit
CIVIL-CONFLICT OF LAWS-JURISDICTION WITH SIGNIFICANT INTEREST IN APPLYING ITS LAWS
AT&T Productos de Consumo de Mexico S.A. de C.V. contracted with Avanti Constructora to construct a factory in Mexico. Productos terminated Avanti in 1991. Avanti had been paid $9 million of the contract amount of $11 million. The factory was completed at an additional expense of $4 million. Productos hired Coufal to recover damages under a contingency fee arrangement under which Coufal would receive any amount recovered from Avanti in excess of $400,000. The arbitration proceeding against Avanti resulted in a $7.8 million award to Productos. The contingency fee agreement was renegotiated to provide that Coufal would receive one half of the amount collected. Because of the publicity AT&T decided to terminate Coufal and hired a new attorney. During this period of time the $5 million performance bond expired. Coufal sued in Los Angeles County Superior Court, alleging, in part, tortious interference with his contract with Productos. The matter was removed to the District Court and summary judgment granted to AT&T, on the grounds that Mexican law applied and the statute of limitations had expired.
HELD: California applies a three-step governmental interest analysis to choice-of-law questions. The court examines the substantive law of each jurisdiction to determine whether the laws differ as applied to the relevant transaction. The parties agree that the laws of New York and Mexico differ. Specifically, New York recognizes a claim for tortious interference, whereas Mexico does not. The situs of the injury is no longer the sole consideration in California choice-of-law analysis, California courts have held that, with respect to regulating or affecting conduct within its borders, the place of the wrong has the predominant interest. Mexico has a significant interest in applying its law to this action. New York does not have a significant interest in applying its law. There is a false conflict of law situation and the district court correctly determined that Mexican law applied. Since Coufal did not raise the question of a contrary interpretation of the commencing of the statute of limitations period under Mexican law in the district court the argument is waived. Affirmed.
Newman v. Apfel
Case No. 98-56397
U.S. Court of Appeals for the Ninth Circuit
GOVERNMENT-DISCRETION OF AGENCY IN IMPLEMENTING STATUTE-DISCRETIONARY STATUTE-MANDATORY STATUTE
The Commissioner of Social Security does not alter the amount of an SSI recipient's benefits in response to a change in the recipient's income until two months after that change has occurred. Congress has enacted a statute providing for the Commissioner to change its regulation and make current-month adjustments when reliable and currently available information is available. Newman sued and the Court directed the Commissioner to promulgate appropriate regulations. Newman now challenges a SSI regulation declaring that there will be no discretionary exception to the standard method of retrospective monthly accounting used to determine SSI benefits. Newman brought a class action. The Commissioner's motion for summary judgment was granted.
HELD: The Commissioner's discharging a judicial order to make Newman whole would not require the Commissioner to promulgate retroactive regulations. The statue providing that the Commissioner change its regulations was not permissive and not mandatory. The change was left to the discretion of the Commissioner. Affirmed.
United States v. Rivera-Sanchez
Case No. 99-10243
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-PROCEDURE-CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL-DISCRETIONARY REFUSAL TO DEPART DOWNWARD IN SENTENCING-METHOD OF CORRECTION OF AMBIGUITY IN JUDGMENT OF CONVICTION
Rivera Sanchez pled guilty to entering the United States, after being deported, without the express consent of the Attorney General. When represented by attorney Aguilar he rejected a plea offer. Sanchez later wrote several letters to the district court complaining about his lack of contact with Aguilar and requested appointment of new counsel. The court appointed new counsel. The government refused to reinstate the rejected plea bargain offer. He contends that his first attorney's inadequate explanation of the Government's plea offer deprived him of the effective assistance of counsel. The district court refused to grant a departure based on Sanchez's claim that Aguilar's representation regarding the plea agreement was ineffective.
HELD: Claims of ineffective assistance of counsel are inappropriate on direct appeal and should be raised, instead, in habeas corpus proceedings. Such claims will only be reviewed on direct appeal where the record is sufficiently developed to permit review and determination of the issue, or the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel. To establish ineffective assistance of counsel, Sanchez must show that: (1) his attorney's performance was unreasonable under prevailing professional standards; and, (2) that there is a reasonable probability that but for counsel's errors, the result would have been different. The record demonstrates that Sanchez fully understood the rejected plea agreement and tried to get a better offer. It is also clear from the record that the court's refusal to depart downward was not based on a belief that it lacked the authority to depart downward for that reason, but rather, was an exercise of its discretion. There is no jurisdiction to review a discretionary refusal to depart downward in sentencing. There was an inappropriate statutory reference in the sentencing minutes, which created an ambiguity as to which statute was violated. The proper procedure under such circumstances is to direct the district court to enter a corrected judgment striking the reference to the incorrect statute. Affirmed the judgment and sentence. Remanded for correction of the ambiguity in the judgment.
Salmon v. Lungren, Attorney General
Case No. 96-55707
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-HEARING ON INEFFECTIVENESS OF COUNSEL
Amendment to order filed June 28, 2000, case be remanded to the district court for an evidentiary hearing on Petitioner's plea-related and appeal-related ineffectiveness of counsel claims. The record shows that Salmon understood the plea agreement offered and wanted to see if he could get a better deal. Salmon has failed to demonstrate that he received ineffective assistance of counsel warranting a reversal of his sentence.
Blair v. City of Pomona
Case No. 98-55548
U.S. Court of Appeals for the Ninth Circuit
ORDER
Amendment to opinion filed on March 21, 2000, not affecting the judgment.
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