Wasserman's Appellate Summaries
September 12, 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.
People v. Scott
Case Nos. D033131/D033902
California Court of Appeal, Fourth District, Division One
(Certified for publication with the exception of parts III, IV and V.)
CRIMINAL-DOUBLE JEOPARDY-INEFFECTIVE ASSISTANCE OF COUNSEL-CONVICTION OF LESSER INCLUDED OFFENSE AS MAY BE IMPLIED BY CONVICTION FOR A LESSER INCLUDED OFFENSE-ELEMENTS TEST FOR LESSER INCLUDED OFFENSE
Scott was convicted of unlawful sexual intercourse age and two counts of oral copulation by a person 21 years or older with a minor under 16. The jury was unable to reach a verdict on one count of forcible rape and two counts of forcible oral copulation. The trial court declared a mistrial as to these counts. The trial court subsequently found Scott suffered two prior serious/violent felonies or "strikes" and sentenced Scott to a total prison term of 50 years to life. In the second trial, a jury convicted Scott of the three violent sex counts that had been mistried. The trial court set aside the previously imposed sentence and resentenced Scott to state prison for a total term of 75 years to life.
HELD: Scott's claim of double jeopardy has been waived because it was not raised below. A plea of double jeopardy cannot be raised for the first time on appeal. The merits were addressed because Scott has maintained, in a supplemental brief, that his trial counsel's failure to raise this defense constituted ineffective assistance of counsel. A defendant cannot prevail on a claim of ineffective assistance of counsel unless the defendant can establish (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. The Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution ensure a person shall not be placed twice in jeopardy for the same offense. An acquittal barring a second prosecution may be either express or implied by a conviction on a lesser included offense when the jury was given the opportunity to return a verdict on the greater offense. In this case Scott's double jeopardy contention fails because the non-forcible sex offenses were not lesser included offenses of the forcible sex offenses within the context of double jeopardy principles. The non-forcible sex crimes require the perpetrator and victim to be within certain age limits while the forcible sex crimes do not. The non-forcible crimes are not lesser included offenses of the forcible sex crimes. It was conceded that the elements of the lesser offense were not included in the greater offense. The non-forcible sex offenses were separately pled counts, which were not lesser included offenses in the accusatory pleading merely because they were committed at the same time as the forcible sex crimes. In any event it is the elements test that is relevant. Affirmed.
People v. England
Case No. C032080
California Court of Appeal, Third District
(Certified for publication with the exception of parts II, III and IV.)
CRIMINAL-TRIAL ON GROUNDS OF PRISON-STANDARDS OF JUDICIAL ADMINISTRATION
England was an inmate at High Desert State Prison. Correctional officers discovered wire missing from a cyclone fence and began a search of inmates’ cells. England and his cellmate refused to cooperate. After several warnings and repeated use of pepper spray, correctional officers began a forcible extraction procedure. England resisted and stabbed two correctional officers with a sharp instrument. He was convicted of two counts of battery by an inmate on a non confined person; one count of possession by an inmate of a sharp instrument; and, one count of resisting executive officers by force or violence. The trial was held in a courtroom located on the grounds of the prison. He was sentenced to 26 years to life consecutive to the term then being served.
HELD: Jury trials on prison grounds are not inappropriate in all circumstances. That is not what the Standards of Judicial Administration provide. The courtroom was not within the actual confines of the prison, and jurors could drive directly to the courtroom. The other conditions for such location were met. The trial was not closed to the public because it was might be more difficult to attend. The trial location did not adversely impact jury selection or otherwise violate his constitutional rights. Affirmed.
Ross Island v. Matson
Case No. 99-16031
U.S. Court of Appeals for the Ninth Circuit
ADMIRALTY-JONES ACT-LIMITATION OF LIABILITY ACTION-DISSOLUTION OF INJUNCTION BY SINGLE CLAIMANT IN LIMITATION OF LIABILITY ACTION
Ross Island employed Matson. He was injured while aboard the "Anchor Scow" vessel. Matson filed suit in San Joaquin Superior Court against Ross Island under the Jones Act, alleging negligence and unseaworthiness. Ross Island filed a "limitation of liability" action in federal court. Ross Island then filed a stipulation for the value of the ship in the sum of $20,000, and the district court enjoined proceedings and ordered all claimants to file its claims within its court. Matson appeared and filed a claim in district court, then later filed a motion to dissolve the stay of his parallel state court proceedings on the basis that he was a single claimant. Matson failed to stipulate to the adequacy of the limitation fund, which is expressly required before the stay can be lifted. His motion was denied.
HELD: A limitation of liability action is a proceeding in admiralty for vessel owners that permits them to limit their liability to their interest in the vessel and its freight, provided that the loss was incurred without their privity or knowledge. A district court, as a general rule, enjoys broad discretion to decide whether to dissolve an injunction under the Limitation of Liability Act. Under the single claimant exception the district court's decision is narrowly circumscribed. The injunction must be dissolved unless the owner can show that his right to a limitation of liability will be prejudiced. A single claimant must either stipulate to the value of the limitation fund or object to the sufficiency of the fund or its method of computation. Since Matson failed to do this the motion was properly denied. Affirmed.
United States v. Sumner
Case No. 99-10523
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EXPUNGEMENT OF CONVICTION UNDER THE FEDERAL YOUTH CORRECTIONS ACT-FAILURE TO STRICTLY COMPLY WITH CONDITIONS OF PROBATION AND SECURE AN EARLY DISCHARGE FROM PROBATION
In 1972 Sumner pled guilty to unlawful possession of a controlled substance and was sentenced under the Federal Youth Corrections Act. As a condition of probation he paid two days late. Twenty-six years after his conviction, Sumner filed a motion in the same criminal case to have his conviction expunged and to have all records of his arrest and conviction physically removed from the Government's central files. The district court denied Sumner's motion on the ground that it did not have jurisdiction.
HELD: In the present case, the record does not indicate that Sumner received an early unconditional discharge from probation, or that he failed to receive one due to an oversight. In fact, it indicates that the opposite is true. Sumner did not present evidence to the district court or even allege that his probation officer failed to file a report evaluating Sumner's conduct and progress and reminding the court that an early unconditional discharge automatically sets aside the conviction. The decision resulted from Sumner's failure to comply with a condition of his sentence requiring the payment of a fine during the term of probation. Affirmed.
Nurse v. United States and 39 Unknown Employees of The Department of The Treasury
Case No. 98-56971
U.S. Court of Appeals for the Ninth Circuit
TORTS-SUIT UNDER FEDERAL TORT CLAIMS ACT-EXCEPTIONS TO SUIT UNDER FEDERAL TORT CLAIMS ACT-SOVEREIGN IMMUNITY DOES NOT EXTEND TO INDIVIDUAL DEFENDANTS-BIVENS CLAIMS
Nurse, a black woman and Canadian citizen, traveled to the United States. When she arrived at the airport in Vancouver, she was detained, arrested and searched by ten unknown agents of the United States Customs Service. She the flew to Los Angeles, where she was again detained, arrested and searched by ten unknown customs agents without probable cause or reasonable suspicion solely because of her race. She filled suit. On motion of the government the district court dismissed her entire complaint.
HELD: Under the Federal Tort Claims Act the United States may be held civilly liable for the torts of its employees in the same manner and to the same extent as a private individual under like circumstances. This waiver of immunity is limited by a number of statutory exceptions. The discretionary function exception precludes claims against the United States that are based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion was abused. The complaint alleges that the policy-making defendants promulgated discriminatory, unconstitutional policies, which they had no discretion to create. In general, governmental conduct cannot be discretionary if it violates a legal mandate. This question cannot be resolved by a motion to dismiss. The acts of the officers at Los Angeles do not come within any exception to the FTCA. The FTCA's foreign country exception provides that the United States may not be held liable in tort for acts or omissions arising in a foreign country. The United States is immune from suit for any negligence that occurred or should have been avoided in Vancouver. Sovereign immunity does not bar Bivens claims for damages against federal officials in their individual capacities for violating individual constitutional rights. Affirmed in part and reversed in part and remanded.
*In Re TLC Hospitals, Inc. v. United States Department of Health and Human Services
Case No. 98-16327
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-RECOUPMENT OF PRE PETITION OVERPAYMENT FROM POST PETITION UNDERPAYMENT-OFFSET
TLC Hospitals, Inc. operated skilled nursing facilities. Many of their services were subject to reimbursement by Medicare. TLC filed a petition in bankruptcy but continued to provide Medicare nursing services. Audits then revealed that Department of Health and Human Services, had both overpaid and underpaid TLC for its services. The Bankruptcy Court allowed offsets for pre-petition overpayments and underpayments, but refused to allow an offset of pre-petition overpayments against post petition underpayments. The district court overruled the Bankruptcy Court and allowed recoupment of the overpayments from the post petition underpayments.
HELD: Recoupment and setoff have much in common, but they have differences with important consequences in the bankruptcy context. The Bankruptcy Code provides for setoff, preserving certain rights that exist under relevant non-bankruptcy law. Under setoff, mutual debts cancel each other, but must be incurred prior to the filing of a bankruptcy petition. Recoupment does not owe its legitimacy to anything in the Bankruptcy Code. As applied in bankruptcy, recoupment is an equitable doctrine that exempts a debt from the automatic stay when the debt is inextricably tied up in the post-petition claim. Recoupment is not limited to pre-petition claims and may be employed to recover across the petition date. HHS may recoup its overpayments by applying them against its post-petition underpayment liabilities. Affirmed.
Nordyke v. King
Case No. 99-17551
U.S. Court of Appeals for the Ninth Circuit
ORDER
The questions of law certified to the California Supreme Court to be answered is:
1. Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property?
Great Western v. Los Angeles
Case No. 99-56605
U.S. Court of Appeals for the Ninth Circuit
ORDER
The questions of law certified to the California Supreme Court to be answered are:
1. Does state law regulating the sale of firearms and gun shows preempt a municipal ordinance prohibiting gun and ammunition sales on county property?
2. May a county, consistent with Article 11,S 7 of the California Constitution, regulate the sale of firearms on its property located in an incorporated city within the borders of the county?
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