Wasserman's Appellate Summaries
September 1, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back 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.
Scott v. Baldwin
Case No. 99-35132
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EX POST FACTO-CHANGE IN REVIEW PERIOD WHEN CLASSIFIED AS DANGEROUS OFFENDER
Scott was convicted in 1979 of first degree rape, attempted murder, and first degree sexual assault. Scott raped a child and crushed her head with a rock in a failed attempt to kill her. The trial court found Scott was a dangerous offender and, under Oregon's dangerous offender law, sentenced him to two thirty-year sentences with a fifteen-year minimum for each. The same year Oregon passed a law requiring a two year review of the classification of an inmate as a dangerous offender. The law was amended two years later to eliminate the two year review requirement and provided for review on petition of the inmate, if reasonable cause existed to believe the inmate was no longer dangerous. It also eliminated the need for a psychological review. Scott's application for biennial review was denied.
HELD: The test of whether a change in the law governing sentencing and parole is whether retroactive application of the change in the law creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. The elimination of biennial reviews disadvantaged Scott, but this is offset by the provision for application for a hearing at any time. The possible effect of elimination of psychological examinations on Scott's sentence was too speculative to support an Ex Post Facto claim. Affirmed.
People v. Wutzke
Case No. D033221
California Court of Appeal, Fourth District, Division One
(Certified for publication with the exception of parts I, II and III.)
CRIMINAL-SENTENCING-ELIGIBILITY FOR PROBATION OF RELATIVE COMMITTING CHILD MOLESTATION-DE FACTO RELATIVE
Wutzke was convicted of multiple acts of child molestation with multiple victims. Wutzke lived with Ruth for 20 years. Over the years Wutzke molested 5 of her female granddaughters. He was sentenced to four concurrent 15 years to life terms, without the possibility of probation.
HELD: The Court concluded that Wutzke fell within the meaning of "relative" as described in the statutory provision allowing probation for the offenses. In this case Wutzke's relationship with the victims was a close trusting relationship. He had been accepted by the victims and their families as a de facto, quasi or step-grandfather within their family units. Sentences vacated and remanded.
People v. Farell
Case No. H019633
California Court of Appeal, Fifth District
CRIMINAL-SENTENCING-AMBIGUITY IN STATUTE
Farell was employed as a design engineer. He pleaded no contest to one count of trade secret theft. The complaint alleged that the theft was of an amount exceeding $100,000 within the meaning of the statute requiring a minimum 90 day sentence as a condition of probation for conviction of a felony for theft of an amount exceeding $50,000 in a single transaction. Farell was placed on probation, conditioned on service of five months in county jail.
HELD: In interpreting the intent of the statute the Court found that some language of other subdivisions within the statute itself supports the view that the Legislature intended the 90 day minimum sentence to apply only to monetary theft, but that there was contrary indications that it did apply. When a penal statute is susceptible of two constructions, the one more favorable to the defendant should be adopted. Reversed.
People v. Marshall
Case No. B137038
California Court of Appeal, Second District, Division Five
ORDER
Modification of opinion not affecting the judgment.
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