Wasserman's Appellate Summaries
September 25, 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. Brown
Case No. B134542
California Court of Appeal, Second District, Division Five
(Certified for publication with the exception of the indicated portions of part III.A, B, C.1 heading, C.2, and C.3.)
CRIMINAL-SENTENCING-SINGLE FACTOR JUSTIFYING SENTENCE CHOICE-INCONSISTENCY IN LOW SENTENCE FOR PRIMARY OFFENSE AND HIGH SENTENCE FOR ENHANCEMENT
Brown, was convicted of attempted voluntary manslaughter. She was also found to have personally used a firearm in the commission of the offense and inflicted great bodily injury. The trial court imposed an 18-month term for attempted voluntary manslaughter and a 10 year firearm enhancement.
HELD: California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice, including the selection of an upper term for an enhancement. The California Rules of Court provides that the enumeration in the rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria shall be stated on the record by the sentencing judge. The trial court noted Brown used the handgun repeatedly - she shot the victim four times - and inflicted great bodily injury on him. The trial court did not abuse its discretion in sentencing defendant to the upper term for the firearm use enhancement. Conversely, the trial court reasonably could have concluded that Brown's misconduct in connection with the commission of the principal offense, occurring during the heat of passion or unreasonably in response to a perceived threat by the victim, was a less serious form of attempted voluntary manslaughter particularly given her absence of any prior felony convictions and her previous commission of only a single misdemeanor offense as a youth. Affirmed, subject to correction of the abstract of judgment to reflect the stay of a three year enhancement.
Friends of Davis v. City of Davis/Fulcrum Davis
Case No. C029236
California Court of Appeal, Third District
(Certified for publication with the exception of parts II, IV and V.)
ENVIRONMENTAL-LIMITATION ON APPLICATION OF ZONING ORDINANCE-DESIGN REVIEW ORDINANCE-CALIFORNIA ENVIRONMENTAL QUALITY ACT-NON PHYSICAL CHANGES TO ENVIRONMENT-CONCLUSIVE EFFECT OF ENVIRONMENTAL IMPACT REPORT OR NEGATIVE DECLARATION
The University of California, Davis and the City of Davis went through a lengthy planning process before awarding an option to purchase a small parcel of real property in the City's downtown area to the Fulcrum Davis entity. The only discretionary approval remaining was for the City’s design review ordinance. The Friends of Davis objected when they learned that a bookstore was planned for the site. The City's position was that the design review did not include tenant approval, and approved the site design. Friends sued. Judgment was for the City and Fulcrum.
HELD: A city’s power to enact zoning regulation derives from the police power and, as such, zoning regulations must be reasonably necessary and reasonably related to the health, safety, morals, or general welfare of the community. The broad declaration of purpose of the ordinance is nothing more than a declaration that a design review process will serve the purposes of the City’s land use policies. A zoning ordinance must provide at least some criteria to govern its application. The City’s design review ordinance does so. It refers entirely to the adverse effects of poor or inappropriate exterior design of improvements. The Davis City Code provides for review of the siting, exterior appearance, and landscaping of proposed projects, but not for tenant approval or tenant-specific review of the previously approved use of the proposed project. The general statement of purpose in Davis City Code is, in itself too imprecise to constitute a valid delegation of authority to the City’s planning department. Under CEQA, it is the responsibility of the lead agency to determine whether an EIR shall be required. This entails a preliminary review to determine whether the project is subject to CEQA and, if so, whether an exemption applies, followed by an initial study to determine whether the project may have a significant effect on the environment. An EIR is required if the project may have a significant effect on the environment. In this case the University included the project in a project-specific initial study and negative declaration. Since the time limitations for challenging these actions have expired, compliance with CEQA is conclusively presumed, unless there are substantial changes to the project. The City was not required to make a new initial study in the absence of such change. CEQA deals with physical changes in the environment, which does not include the specific tenant of a project. Affirmed.
People v. Antonio C., a Juvenile
Case No. F034727
California Court of Appeal, Fifth District
JUVENILE-LIMITATION ON CONDITIONS OF PROBATION-GANG RELATED MARKINGS
Antonio C., a minor, admitted he possessed an explosive, a felony violation and was subject to the jurisdiction of the Juvenile Court. The court placed him on probation subject to a number of conditions, which included prohibiting him from obtaining any new tattoos, brands, burns, piercings or any voluntary scarring.
HELD: As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal. However, where an objection would have been futile, the claim is not waived. The People concede that an objection to the condition would have been futile in light of the Juvenile Court’s rejection, without explanation, of Antonio’s objection to the gang affiliation conditions. A juvenile court may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted; (2) forbids conduct that is not reasonably related to future criminality; and, (3) relates to conduct that is not itself criminal. In addition, where an otherwise valid condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in the minor’s reformation and rehabilitation. The tattoo and body marking prohibitions are consistent with the reformative and rehabilitative purposes of juvenile probation and constitute a reasonable exercise of the juvenile court’s supervisory function to provide for the minor’s safety and protection. Affirmed, with a modification relating to gang significance of markings.
Nakamura v. Superior Court of Los Angeles County/Oruna
Case No. B139794
California Court of Appeal, Second District, Division Five
ORDER
Modification of the opinion filed herein on September 13, 2000. Change in judgment. On page 16, the Disposition is modified to read: The petition is denied. The temporary stay order is vacated. Real parties in interest to recover their costs in this proceeding.
Merrill v. Apfel, Commissioner of Social Security
Case No. 98-36000
U.S. Court of Appeals for the Ninth Circuit
GOVERNMENT-DENIAL OF SOCIAL SECURITY BENEFITS FOR DISABILITY-EVIDENCE
In 1994, Mrs. Merrill filed her son's, Austin's, application for SSI disability benefits, based on his asthma and bilateral clubfeet since his birth. Surgery on his feet in May and July of 1995 resulted in Austin wearing clubfoot splints and he had started walking. The mother testified that he could not walk without assistance. The claim was rejected and after a hearing the ALJ found that there was no disability. The district court upheld the ALJ decision.
HELD: A child is disabled for the purposes of the SSI program if he suffers from a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The ALJ finding that Austin did not suffer from a marked and severe functional limitation was not supported by substantial evidence. The medical evidence relied on by the ALJ only established that Austin had a good prognosis after corrective surgery, not that he failed to satisfy the criteria for a disability. Reversed and remanded.
Pace v. Honolulu Disposal Service, Inc.
Case No. 99-15796
U.S. Court of Appeals for the Ninth Circuit
LABOR-JURISDICTION-MODIFICATION OF COLLECTIVE BARGAINING AGREEMENT BY ORAL AGREEMENT-PAROL EVIDENCE RULE
Plaintiffs are four former and current employees who were roll off drivers for Honolulu Disposal Service, Inc. They claim that wages and benefits under a series of written Collective Bargaining Agreements negotiated by HDS and the Laborers International Union. HDS, the Union, and several union trust funds assert that the Drivers are not covered by the CBAs because HDS and the Union orally agreed to limit the scope of the bargaining unit to a couple of employees not including these Drivers. Summary judgment was for HDS.
HELD: The Court found that the district court had jurisdiction as an "exception to the primary jurisdiction doctrine of the National Labor relations Act and that the Drivers have standing to assert claims for wages and benefits under the CBAs, since the Drivers face an alleged oral agreement that excludes them from the bargaining unit. On the merits the Court found that faced with clear, unambiguous written agreements containing integration clauses and no-oral-modification clauses, and in the absence of language acknowledging any supplemental agreements, the parol evidence rule bars introduction of evidence of an oral agreement that directly contradicts a key term of the written contracts. Reversed and remanded.
United States v. Arrieta
Case No. 99-50368
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-REENTERING THE UNITED STATES AFTER BEING DEPORTED-CHALLENGE TO UNDERLYING DEPORTATION-DUE PROCESS-FAILURE TO GIVE ADEQUATE OPPORTUNITY TO APPEAL
Arrieta entered the United States in 1986 at the age of nine. Ten years later he was convicted in California of attempted forcible rape and sentenced to serve one year in a county jail. Upon his release, the Immigration and Naturalization Service instituted deportation proceedings. At the deportation hearing Arrieta was found to be subject to deportation and then asked if he accepted the decision or wanted to appeal. Arrieta indicated that he accepted, and was deported. In 1998 Arrieta was arrested for reentering the United States after being deported. When his motion to dismiss was denied he pleaded guilty.
HELD: The Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation. If the defendant's deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding. An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. In this case, Arrieta was denied due process and a meaningful opportunity for judicial review. The IJ should have known that Mr. Arrieta was eligible to apply for a waiver since the record establishes that his mother is a lawful permanent resident and that his daughter is a citizen. Without this information Arrieta, who was not represented by counsel, could not make a considered and intelligent decision about whether to apply for a waiver, and could not make a considered and intelligent decision about whether to appeal the IJ's deportation order. Prejudice to him was shown by this denial. Reversed.
*Change in law, interesting case, or just watch out!
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