Wasserman's Appellate Summaries
September 22, 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.
Woo v. Superior Court/Carey
Case No. B143499
California Court of Appeal, Second District, Division Three
GOVERNMENT-CHANGE IN CITY CHARTER LIMITING TERM OF OFFICE ON CITY COUNCIL-TIME OF FORMER SERVICE ON CITY COUNCIL AS APPLIED TO CHANGE IN CHARTER
Woo served two full terms as an elected member of the Los Angeles City Council, from July 1985 to June 1993. He seeks reelection for a third term to commence in July 2001. The city clerk advised him that he was ineligible to seek reelection based on a provision of the new city charter limiting elected city officials to only two terms in office. The provision is identical to a provision of the former charter, except that it omits language expressly stating that only terms commenced on or after July 1, 1993, count toward the two-term limit. The Superior Court denied the petition, stating that the charter provision is clear on its face.
HELD: The voters’ intent in approving the measure is our paramount concern. The Court construed the charter provision and the change to mean that the voters intended to retain the former term limits law without change and did not intend to make persons who had served two terms of office before July 1993 ineligible to hold office. The new charter provision only except terms of office served before July, 1993, from counting toward the two-term limit, as under the former charter. Peremptory writ of mandate issue directing the superior court to vacate its order denying the petition for writ of mandate and enter a new order granting the petition.
Cardenas-Uriarte v. Immigration and Naturalization Service
Case No. 97-70692
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-JURISDICTION-POSSESSION OF DRUG PARAPHERNALIA AS DEPORTABLE CONTROLLED SUBSTANCE OFFENSE-FIRST OFFENDER ACT-EXPUNGEMENT OF CONVICTION
Cardenas entered the United States from Mexico without inspection in 1985. In 1990, he was made a permanent lawful resident through the Special Agricultural Workers Program. In 1991, he pled no contest to a charge of possession of drug paraphernalia under Arizona law. The Immigration Judge found him to be deportable. The BIA found that the expungement of his conviction did not prevent deportation and affirmed.
HELD: The Illegal Immigrant Reform and Immigration Responsibility Act does not divest the court of jurisdiction to determine if Cardenas has committed a deportable offense. A conviction for possession of drug paraphernalia under Arizona law is a crime relating to a controlled substance within the meaning of the Immigration and Nationality Act. If Cardenas would have been eligible for first offender treatment under federal law, he would not stand convicted for purposes of the immigration laws. The plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in the statute as relating to a controlled substance. It would be an absurd result if we refused to allow Cardenas' plea to possession of drug paraphernalia to qualify under the First Offender Act because if he had been convicted of the more damaging offense of possession of the drugs, he could qualify under the Act. Reversed and remanded, with instructions.
*John Deere Insurance Company v. Nueva/Los Angeles County Metropolitan Transit Authority
Case No. 98-56464
U.S. Court of Appeals for the Ninth Circuit
INSURANCE-EFFECT OF FEDERAL REQUIRED MCS-90 ENDORSEMENT ON EXCLUSION OF VEHICLE FROM COVERAGE-PERMISSIVE USER
A tractor/semi-trailer operated by Singh Garcha and Blue Star transportation rear-ended a Los Angeles County Metropolitan Transit Authority bus driven by Guillermo Nueva. The collision resulted in a total loss to the bus and personal injuries to Nueva. Baljit Singh Sahota was selling the tractor to Garcha, but title had not transferred because the final payment had not been made. Garcha and Blue Star were uninsured. John Deere insured Sahota. This policy had the mandatory federally mandated MCS-90 endorsement. Deere sought declaratory relief. Deere's motion for summary judgment was granted, because the MCS-90 endorsement created merely a reimbursable obligation with respect to its insured, Sahota, but did not create coverage for Garcha and Blue Star, who it classified as users of non-scheduled vehicles. Sahota and Sahota Trucking were dismissed for lack of prosecution.
HELD: The policy definition of "insured" included permissive users of the vehicle. The policy listed neither the trailer nor any other vehicle or portion of any vehicle involved in this accident under "Covered Autos". In the instant case Nueva and LACMTA are injured members of the public, and are precisely the group meant to be protected by the MCS-90. The critical language in the MCS-90 endorsement is the provision which states that the insurer agrees to pay any final judgment recovered against the insured for public liability regardless of whether or not each motor vehicle is specifically described in the policy. Reversed and remanded.
United States v. Garcia-Guizar
Case No. 99-10435
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-CORRECTION OF SENTENCING COMPUTATION ERROR AFTER REVERSAL OF PORTION OF CONVICTION-REVIEW FOR PLAIN ERROR AFTER FAILURE TO OBJECT
Garcia-Guizar was convicted of four drug counts and one count of criminal forfeiture. The court followed the recommendation of the first presentence report and based the recommended offense level on the amount of methamphetamine mixture involved in all four sales. Calculation on the basis of pure methamphetamine would have led to a higher offense level. One conviction was reversed on appeal. At resentencing, the district court adopted the findings of the now-revised presentence report and sentenced Garcia on the remaining drug count based on the pure methamphetamine in the three sales. The sentence was 33 months longer than for the conviction on the four counts.
HELD: The district court erred by finding at resentencing that Garcia conspired to distribute 450 grams of methamphetamine. This finding, made under a preponderance-of-the-evidence standard, increased the statutory maximum penalty to which Garcia was exposed from twenty years to life. Because Garcia did not object to the district court's making these sentencing findings, review of the error is made under the plain error standard. The error did not prejudice Garcia. He was sentenced to 168 months in prison, which is substantially less than the twenty-year prescribed statutory maximum to which Garcia was subject under the facts as found by the jury. The correction of the sentencing error did not evidence vindictiveness or violate due process. Affirmed.
*Change in law, interesting case, or just watch out!
Wasserman's Archived Appellate Summaries
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