Thursday, October 10, 2019

People v. Financial Casualty & Surety Co. (Sup. Ct. App. Div. - Oct. 10, 2019)

Judge Ricciardulli gets an A+ for this opinion published today.

If one of my students wrote this in response to a final examination hypothetical, I'd find it to be absolutely perfect.  Exactly what I would be looking for.

First, it's the lock solid right answer.  When a statute says that a judge must enter an order "within 90 days after the date upon which it may first be entered" -- "it" referring a prior court order that itself had to be entered within 180 days of a specified event -- then the 90 days begins running on the next court day that was available for the prior order to be.  Which in turn means that if, as here, the prior 180-day period expired on a Saturday, a date the court was closed, then the 90-day period starts from the following Monday (assuming that Monday isn't a holiday, in which case on Tuesday).

Second, Judge Ricciardulli's opinion sets forth every single one of the relevant statutes and principles that establish that this is the right result; e.g., Section 12 of the CCP, which extends dates that end on holidays; Sections 134 and 135 that establish that courts are closed on holidays and that Saturday is a court holiday, etc.  It shows perfectly why this the right answer.

And, finally, Judge Ricciardulli does so extremely concisely and yet with the perfect amount of explanation.  No flourish.  But definite articulation of the reasons why the result is what it is.  You can do that in six (double-spaced) pages of text.  And Judge Ricciardulli does.

I wish that all my students wrote so cleanly and concisely (and accurately).  Ditto for lawyers.

So great job by the Appellate Division, particularly Judge Ricciardulli.

I was also going to say that I was impressed, albeit for very different reasons, with the counsel for the losing party (Bail Hotline Bail Bonds), John Rorabaugh.  Not because Mr. Rorabaugh won a difficult case (he lost) or wrote an outstanding brief (since I've never read it, so I don't know one way or the other).  Rather, I was impressed that Mr. Rorabaugh could apparently effectively prosecute an appeal over a forfeited bail bond in the whopping amount of . . . $5,000.  There's only $5000 at stake.  How can a lawyer write a brief in both the trial court and in the appellate division, plus oral argument, plus all the other stuff, in a manner that makes it cost effective for the client to prosecute an appeal over such an incredibly small amount (in the scheme of things)?!  For most lawyers, the cost of the briefs alone would easily be over $5,000.  So why throw more good money down the drain (even if you're right) when the bad money you might possibly recover -- and, remember, you're not even assured of prevailing on appeal anyway -- is less than the money you're spending to get it back?

If Mr. Rorabaugh's found a way to prosecute trial and appellate proceedings on a given matter for a total costs and attorney's fees of, say, $2,000, thereby arguably making the dispute (and appeal) worth it, more power to him.  Personally, no way I could write such briefs for only $2,000.  More power to him if Mr. Rorabaugh's somehow able to pound out appellate briefs (that result in published opinions, no less) for only a grand or two.  Well done, I guess.

 (It's probably more accurate to say that I, and others, could write briefs in $5,000 appeals for a grand or two, but we pretty much uniformly refuse to do so.  At least when we're looking to make money.  There are plenty of appellate briefs that I've written for the whopping charge of $0.  But those aren't in cases I'm looking to make money or recoup (in any material way) the value of my time; they're pro bono and other matters where I'm looking to correct injustice or serve a social good.  The case at issue here doesn't seem like one someone would take on pro bono, as I doubt anyone other than the parties really cares whether the $5,000 bond here gets forfeited or goes back to Bail Hotline Bail Bonds.  So, yeah,  Mr. Rorabaugh could easily do the case for a reasonable and efficient fee to the client -- $0 -- but I bet that's not what actually went down.)




Wednesday, October 09, 2019

People v. Winn (Cal. Ct. App. - Oct. 9, 2019)

At first glance, I thought this opinion highlighted yet another danger of being a landlord:  the risk you're going to get stabbed an killed by your tenant.  After all, the first sentence of the opinion reads:

"A jury found defendant Alexander Winn guilty of first degree murder for the stabbing death of David Derrington after Derrington had Winn and his wife evicted from their home."

Killing your landlord seems an excessive reaction to being evicted.  To say the least.

But once I read more, I discovered that this wasn't just any old landlord that the defendant killed.  The landlord was also his wife's ex-husband.  (The opinion is a little confusing in places because it talks about the defendant having killed "Darrington" -- meaning David Darrington -- even though the defendant's wife was also a Darrington:  Traci Darrington.)

You can understand why you might stab and kill your wife's ex-husband for reasons beyond those that might arise from being evicted.

So maybe the lesson here is:  Be careful if you're trying to evict your ex-wife and her current husband has -- as here -- served five prior prison terms.

Yeah.  That sounds about right.

Tuesday, October 08, 2019

Brown v. USA Taekwondo (Cal. Ct. App. - Oct. 8, 2019)

Today's decision by the Court of Appeal will massively increase the exposure of National Governing bodies of the USOC (U.S. Olympic Committee) in various sports.

I'm not saying that's bad or good from a normative perspective.  Just that it's the case.

There's USA Swimming for swimming, USA Water Polo for water polo, etc.  National governing bodies that (typically) govern the sport and that establish procedures for how athletes in that sport get selected (nor not selected) to participate in the Olympics as part of the U.S. team.  But more broadly, these national governing bodies typically entire control the club-level in that sport.  If your kid is on a water polo team, for example, he's almost certainly a member of USA Water Polo, because you've got to be (essentially) to participate.

Today's opinion holds that these governing bodies have "special duties" to their members so that when a coach molests a kid, the governing body itself may be liable.  That's a huge increase in liability for the organization.  You'll undoubtedly see it reflected on the bottom line; the cost of membership in these organizations -- a practical necessity for participating the sport -- will assuredly increase.

Now, arguably, so will protections against getting molested, or (potentially) otherwise abused by your coach.  At least that's the hope.

Though I wonder how effective such screening mechanisms etc. would (will) be.  Certainly they'll be at least a TINY bit effective; screening out obvious sexual offenders, heightening concern by parents and participants and increasing awareness of the subject matter, etc.

It's just worth remembering that very few things in life are free.  Including but not limited to here.

Postscript - To nonetheless end on a happy thought, and as a reminder:  Love is always free.  So spread the wealth.

Monday, October 07, 2019

Flynt v. Shimazu (9th Cir. Oct. 7, 2019)

Larry Flynt:  Dead or alive?

Alive.  And litigating this case.  Which a split opinion of the Ninth Circuit revives after being dismissed by the district court on statute of limitations grounds.

Apparently Mr. Flynt likes to purchase "card rooms" -- poker places -- and California law makes it difficult to do so in California if you also own out-of-state casinos and the like.  Mr. Flynt is suing, claiming that's unconstitutional.

I think of Larry Flynt as an old-style pornographer from a bygone era.  I didn't previously know about his shift into (or back into) gambling.

Vices may change over time.  But there's always vice.  And people willing to make money off it.


Thursday, October 03, 2019

People v. Vital (Cal. Ct. App. - Oct. 3, 2019)

I get where Justice Dhanidina is coming from.  I really do.  The defendant committed a disgusting act.  He convinced a mother to engage in oral sex with her three year old son.  To say that I'm totally appalled by that is the understatement of the century.  I'd absurdly evil.  Made only worse once you read (as you learn in Justice Dhanidina's dissent) that in one of the videos of the crime, "the child begged his mother, 'Don’t touch it, don’t touch it! Don’t! Don’t touch it,' and told her 'that’s enough. Mommy, that’s enough.' [and] can be heard whimpering."  O.  M.  F.  G.

Everyone agrees that this is a huge crime.  Everyone also agrees that to be guilty of aiding and abetting this offense (oral copulation with a child 10 years old or younger), the perpetrator needs to be over 18 years old.  But the trial court instructed the jury that only the defendant needs to be over 18.  Wrong.  It's the direct perpetrator who needs to be over 18.  In this case, the mother.  So we all agree the conviction can't stand.

But what gets Justice Dhanidina's goat is the fact that the majority enters a judgement of acquittal on these counts.  Even though, to be honest, I'm fairly confident that the mother here was, indeed, over the age of 18.  If the prosecution had known that it needed to prove that the mother was over 18, I'd bet dollars to doughnuts they could easily do so.  So, if a retrial was permitted, they'd almost certainly be able to establish what's required.

But, for better or not, that's not the way things work.  You've got to introduce enough evidence at the first trial to convict.  You don't get a second shot.  That's the whole Double Jeopardy thing.  So if you make a mistake, or forget to introduce evidence, that's on you.  The defendant gets acquitted.  Even if we're pretty much (or entirely) certain, based upon facts outside the trial, that the guy's in fact guilty (e.g., that the mother here is over 18).

That's not a pretty result.  Either in the usual case or here.  And Justice Dhanidina doesn't particularly like that outcome.  (Nor do I.)

But it's the law.  Reasonably so.

To avoid that untoward result, Justice Dhanidina says that while the instructions were wrong -- hence the conviction must be reversed -- but there was sufficient evidence of the mother's age.  She had at least one child, was described by witnesses as an "older" woman who was an "adult," and told the defendant that "18" was the minimum age of anyone she'd have sexual relations with.

I get it.

But the thing is, while I'm looking at the exact same evidence as Justice Dhanidina, and on that basis, am fairly confident that mother is, in fact, over 18, I couldn't say that beyond a reasonable doubt.  We have a video of the incident, but 21 looks a lot like 18 which looks a lot like 17.  Maybe the mother is 17 and maybe she's described as an "older" adult in comparison to the three year old.  We just can't be totally sure.

And that's what's required.  If this was the only evidence adduced at trial -- say, at a retrial -- and the prosecution didn't introduce the mother's driver's license, birth certificate, express testimony as to her age, etc., I'd have zero doubt that it was insufficient.  Even though I'd think, as I do here, that she's indeed probably 18 or more.

You gotta follow the rules.  Even though I'm not happy -- at all -- with the result, I'd be compelled to do the same thing as the majority.  The prosecution thought it had to prove X, but it actually had to prove Y, and even though it probably could have established Y with ease, it didn't do so beyond a reasonable doubt.  Which means the evidence is insufficient and the defendant entitled to an acquittal.

Even for something as disgusting as this.

P.S. - The mother got a long sentence in prison as well.  Just so you know.

Wednesday, October 02, 2019

People v. Tejeda (Cal. Ct. App. - Oct. 2, 2019)

"I'll confess to the murder, but only if you give me a burger, fries, burrito and a soda."  This, by the way, was better (or at least more favorable to the prosecution) than the defendant's previous offer, which was to confess to various unsolved crimes in return for "a segregated cell with a television, $200 in his inmate trust account, a double bacon cheeseburger, strawberry milkshake, and chili pork burrito, stamped envelopes, legal pads, pencils, media contacts, and an exclusive interview."

What's the deal with the "media contacts" part of that earlier request?  Glad you asked.  You see, Mr. Tejada insists that he's the victim of a horrible mind control experiment.  And it wants the world to know about it.

Indeed, they finally get him to confess by having him write down his confession as part of a "press release."  So no soda.  Mr. Tejada wrote: "It must be understood that I am 100% the subject of a United States government mind control experiment project that is on-going." Which is in turn why he committed the murder.  As Justice Dato explains: "'Suggestional thoughts' were inserted into his brain, hypnotizing him and causing him to pull the trigger."

And don't think this was an isolated, rogue program.  Not at all.  Who's fault was it?  I think you know.

Obama's.

According to Mr. Tejada:  "President Barack Obama was "fully aware" of the project."  And all that Mr. Tejeda wanted was for "Obama to admit to his face, 'Ay bro, you're a project.'"

Seems a reasonable request.  If true.

Mr. Tejada gets declared incompetent several times, but ultimately is declared competent.  So goes to trial.  At which point, against his lawyer's advice (needless to say), he testified that (1) yeah, he was the one who committed the robberies and murder, (2) but that's only because his body had been controlled by "the project,"; and (3) "with the money he stole, he thought he might buy some cigarettes and catch a plane to Langley to 'get to the bottom of this mind control project.'"

Didn't quite work out that way, of course.  He was convicted.  But, perhaps not surprisingly, the Court of Appeal holds that the trial court should have conducted another competency hearing.  Mr. Tejada can be retried if he's currently competent.  But good luck with that.

Tuesday, October 01, 2019

O.G. v. Superior Court (Cal. Ct. App. - Sept. 30, 2019)

I defy you to find a Court of Appeal opinion that -- as here -- disagrees with the unanimous view of multiple other panels in the Court of Appeal, in a high-profile dispute, in an opinion that itself is only six (double-spaced) pages long.

Wow.  That's short.

Not that Justice Yegan needs to do more.  He doesn't.  There are dissents in those other Court of Appeal decisions.  And he things those dissents are right, for the reasons they express.  It doesn't take a huge number of pages to say so.  No need to gild the lily.

Plus, there's zero doubt that the California Supreme Court is going to take up this case.  Justice Yegan strikes down Senate Bill 1391 (which bars prosecutors from asking to try minors as adults in various criminal cases) as fatally inconsistent with Proposition 57 (which allows minor to be tried as adults in only limited settings).  That's an important and recurring issue, and potentially adds (or subtracts) a ton of time for various criminal defendants.  Given the split in the Court of Appeal, it's pretty much certain that the California Supreme Court will step in.

So why write something incredibly long when, in short order, the only thing that readers are going to care about anyway is the controlling decision from the Supreme Court.

Short opinion.  Super important.  Super temporary.

Salazar v. McDonald's Corp. (9th Cir. - Oct. 1, 2019)

I feel gently compelled to talk about today's opinion from the Ninth Circuit.  Not because it's the most important opinion in the universe (which it isn't).  Nor because it's the first opinion published by the Ninth Circuit in October (which it is).

Rather, I mention it because it's the first opinion published by the Ninth Circuit in a while. No opinions published last Wednesday.  Or last Thursday.  Or Friday.  Or Saturday or Sunday (obviously).  Or Monday.  Today, finally, after a week-long break, we get a single published opinion.

Better than nothing, I guess.

Meanwhile, in the last three business days alone, the Ninth Circuit has issued 108 unpublished opinions.  Which tells you a lot about how the majority of Ninth Circuit appeals get adjudicated.

Today's opinion is at least important for anyone who wore a McDonald's uniform in California in the last several years.  The Ninth Circuit upholds the entry of summary judgment in favor of McDonald's in a wage and hour class action, holding that McDonald's itself (as opposed to the relevant franchise) isn't the "employer" of the employees.  Chief Judge Thomas dissents, but since the majority opinion is by Judge Graber (joined by Judge Kleinfeld), I don't think you're going to get en banc review, nor will the Supreme Court be interested.  So that's the practical end of this case.  Notwithstanding all the amici interest in this case (on both sides). 

Thursday, September 26, 2019

People v. Ramirez (Cal. Ct. App. - Sept. 24, 2019)

Nothing published from the California judiciary today (at least thus far).  And nothing published by the Ninth Circuit today either; or, for that matter, yesterday.  Slow September.

But the gap did let me go back a couple of days and reread this opinion from Tuesday.  There's a little bit of a substantive fight between the majority opinion and the partial dissent that's at least marginally interesting.  But I wanted to talk instead about Justice Wiley's opinion style instead.

Justice Wiley is often incredibly concise.  I talked about that earlier this week, and have noticed it in several of his opinions.  But, on rare occasions, he perhaps sacrifices substance for brevity.  For example, when he decides that trial counsel might have failed to object to a particular instance of alleged prosecutorial misconduct, he makes some good points ("Many sound reasons could explain the decisions not to object to these comments. Counsel may have figured counterargument held more rhetorical promise than a mere objection. Or the jury may have looked bored, and the stimulus of an objection may have awakened the jurors’ interest in a counterproductive way."), but then simply adds:  "And so forth."

I'm always intrigued when I see ten-character sentences in a judicial opinion.  Particularly those that lack a verb.  But, on this occasion, I think you have to actually articulate -- not merely assume -- the hypothetical reasons for the purportedly "tactical" decision not to object.  "Etc." doesn't really cut it.

Mind you, in other areas, Justice Wiley's brevity strikes me as brilliant.  For example, the entirety of Section II.C. of the opinion consists of a single sentence:  "There was no cumulative error because there were no errors to cumulate."  You see a plethora of opinions say the exact same substantive thing.  But Justice Wiley's way of saying it struck me as notably pithy and memorable.  Moreover, as far as I can tell, he's the only person who's described a holding that particular way:  at a minimum, there are no published or unpublished opinions that ever use that same sentence.  So i'm impressed that Justice Wiley can come up with a new -- and arguably better -- way of saying something that a plethora of opinions have said over a century or so of jurisprudence.  Well done.  I'm hoping that someone will follow up on that example and use this same sentence sometime in the future.  'Cause I like it.

One other minor point about Justice Wiley's writing style.  The first sentence of this opinion reads:  "A jury convicted Juan Ramirez of a shotgun murder."  That's sort of a funny way to say it, right?  "A shotgun murder."  I mean, simply saying that the guy was convicted of "murder" is probably all you need to say.  Putting in "shotgun" doesn't really add anything.  Particularly since there's nothing substantive in the opinion about whether the weapon was a shotgun, finding the shotgun, ballistics from the shotgun, or the like ("so forth").

Plus, what's the deal with the article.  "A shotgun murder."  That just sounds funny.  Old school, in a way.  So I looked up whether other people (judges, anyway) say the same thing.  On this front, Justice Wiley isn't as original as his earlier "cumulative error" styling.  But it's still pretty rare.  I could only find ten or so instances of where a judge has said that there was "a shotgun murder," and that's after looking at every reported and unreported opinion from all across the nation (state and federal) over the past century.  So, yep, other people have used the same term.  But it nonetheless remains a fairly funky way of saying it.

Anyway, having joined the Court of Appeal only last year, Justice Wiley is quickly making his mark, if only as a matter of writing style.  Which is perhaps not that surprising, given his background as a long-time law professor at UCLA.  The guy knows a thing or two.  And says it in an artful way.

Wednesday, September 25, 2019

In re Marriage of Mitchell (Cal. Ct. App. - Sept. 25, 2019)

I don't think I've ever seen an opinion with an "analysis" section that's shorter than this one.  And I certainly haven't seen such brevity in the midst of a ten-page opinion.

Justice Siggins' analysis of the case is contained in a single paragraph.  Indeed, it basically consists of four sentences.  He says:  "The couple continued to cohabit long after [Wife] discovered [Husband's] infidelity. . . . Carolyn discovered Michael’s communications with DeAndra in February or March of 2017. She taped Michael’s sexual encounter with Kim in March. Nonetheless, the parties continued to live together and to have sexual relations for another eight months.  On this record, the court could not issue a judgment of nullity under section 2210, subdivision (d)."

Not that Justice Siggins is wrong.  He's exactly right.  You can't get an annulment based on fraud (e.g., that the guy always intended to sleep with other people) if you subsequently learn about that fraud and continue to live with him.  So the trial court erred in granting the annulment.

Was it the greatest marriage in the world?  Nope.  Far from it.

But it was a marriage.  Not a nullity.

Tuesday, September 24, 2019

People v. Hicks (Cal. Ct. App. - Sept. 24, 2019)

Justice Hoffstadt begins today's opinion by saying the following:

"Earlier this year, one of our sister courts in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) held that due process precludes a court from “impos[ing]” certain assessments and fines when sentencing a criminal defendant absent a finding that the defendant has a “present ability to pay” them. (Id. at pp. 1164, 1167.) As explained below, we disagree with Dueñas’s analysis, consequently conclude that Dueñas was wrongly decided, and accordingly reject the Dueñas-based challenge presented in this appeal."

Given the routine nature of these assessments in criminal cases, Justice Hoffstadt might as well have said:  "We want the Supreme Court to grant review in this case, so we're going to essentially make 'em do it now."

This one is going up.  Or at least should.

POSTSCRIPT - Or maybe not!  A (super) informed reader wrote to tell me that a couple weeks ago, the Legislature passed AB 927, which is currently sitting on the Governor's desk.  Here's what that bill says: 

"LEGISLATIVE COUNSEL'S DIGEST/AB 927, Jones-Sawyer. Crimes: fines and fees: defendant’s ability to pay. 

Existing law requires or authorizes a court to impose various fines, fees, and assessments on criminal defendants, including fines assessed as a penalty for a crime, restitution fines, and fees and assessments for the support and maintenance of the courts, as specified.

This bill would require a court imposing a fine, fee, or assessment related to a criminal or juvenile proceeding involving a misdemeanor or a felony to make a finding, as specified, that the defendant or minor has the ability to pay, as defined. The bill would require that a defendant or minor be presumed to not have the ability to pay if the defendant or minor is homeless, lives in a shelter, or lives in a transitional living facility, receives need-based public assistance, is very low income, or is sentenced to state prison for an indeterminate term or a term of life without the possibility of parole. The bill would also specify factors establishing inability to pay, as specified."

If the Governor signs AB 927, that seems like it'll largely moot the underlying judicial dispute, albeit probably not retrospectively (i.e., for fines and assessments imposed prior to the statute).  Which in turn would substantially decrease the need for the California Supreme Court to grant review.

So maybe this is a super important dispute.  Or maybe it'll soon become a largely academic one.  We'll soon see.  Keep those comments coming.  Always good to learn something new!

Monday, September 23, 2019

Doe v. Occidental College (Cal. Ct. App. - Sept. 23, 2019)

John and Jane -- not their real names, of course -- attend the same college (Occidental).  John and Jane are both extremely drunk one night.  As occasionally happens in college.  John and Jane have sex.

Neither John nor Jane should be having sex; neither one is sufficiently sober to effectively consent.  As the hearing administrator found:  "An external adjudicator found Jane was incapacitated within the meaning of the policy because she was intoxicated and unable to make 'an informed and rational decision to engage in sexual activity.' The adjudicator found John was also intoxicated; in fact, so intoxicated he did not know Jane was incapacitated."

But, as Justice Segal notes:  "Under Occidental’s policy, however, John’s intoxication did not diminish his responsibility to obtain Jane’s consent, and John violated the policy because he should have known Jane was incapacitated. The adjudicator concluded a sober person in John’s position should have known Jane was too drunk to consent."

Is this one of those "Boy Forces Girl After She Says No" cases?  No.  Not this one.  It's instead one of those straightforward intoxication cases.  Jane "wants" to have sex.  (But, again, is not in a position in which she can intelligently consent.)  Which is why you have facts like these:

"Jane said she remembered that, after returning to John’s room, she asked him if he had a condom. She remembered 'performing oral sex on him,' but did not remember 'having sexual intercourse.'"  And text messages like these:

At 12:20 a.m. Jane sent a text message to her best friend from home saying, “I’m wasted.”

Between 12:31 and 12:45 a.m., Jane and John exchanged text messages, including these:

John: “The second that you’re away from [Angela and Jamison] come back.”
Jane: “Okay.”
John: “Get the fuck back here. Get the fuck back here.”
Jane: “They’re still with me . . . .”
John: “Make them leave. Tell them yo[u] want to sleep. . . . Just get back here.”
Jane: “Okay do you have a condom.”
John: “Yes.”
Jane: “Good give me two minutes.”
John: “Come here.”
Jane: “Coming.”
John: “Good girl. Knock when you’re here.”
Jane: “[Jamison is] out ride [sic] my door.”
John: “What.
Jane: “[Jamison] is outside my door.”
John: “Wtf.”
Jane: “Right.”
John: “Get him to leave.”
Jane: “Working on [i]t.” . . . .
John: “Leave. Say you’re going to the bathroom.”
Jane: “Okay.”

And then, immediately before leaving her room to go back to John to have sex with him, "Jane texted her friend from home again at 12:40 a.m. and said, 'The worlds moving. I’mgoingtohave sex now.'”

So what happens?

John gets expelled.  The Court of Appeal affirms.

People v. Rodriguez (Cal. Ct. App. - Sept. 23, 2019)

One of my (many) flaws as a writer is that I often craft overly long sentences, full of semicolons, dependent clauses, unnecessary adjectives, etc.  I know I shouldn't.  But I can't seem to help myself.

So when I read the first sentence of this opinion by Justice Wiley, I was literally taken aback.  It's so simple.  So straightforward.  So easy. 

The opinion begins:

"Giovanny Rodriguez shot a man."

Yep.  That's what it's about.  Short and sweet.

And that's not the only sentence that Justice Wiley uses that's like that.  "Rodriguez was in a gang." "Police secretly recorded all this." "This is forfeiture."  Stuff like that.  There's even one paragraph that, in total, is five words:  "This case differs from Schueren."

Now, not all the sentences in the opinion are like that.  But enough are.  There's clearly a deliberate effort to be short and to the point.

I could definitely learn something here.  As, I suspect, could many of us.

On the merits, I recommend reading Justice Stratton's partial dissent.  It's super short.  And it raises an important point.  She begins by saying (accurately):  "Any way you slice it, defendant is serving more minimum prison time before he is eligible for parole because he successfully exercised his right to trial on the premeditation allegation. So, even though he is legally less culpable without a finding of premeditation, he faces more minimum time in custody."  And later asks the reader:  "Who among us thinks it is logical and usual to keep a defendant imprisoned longer for an unpremeditated crime than for the same premeditated crime?"

Well now.  That does seem strange, doesn't it?

Definitely work checking out.

Friday, September 20, 2019

People v. Bay (Cal. Ct. App. - Sept. 20, 2019)

The Court of Appeal amends today its earlier opinion (published back in July) to make a couple of substantive changes.  Those changes are interesting.

First, as to the sufficiency of the evidence, the Court of Appeal previously held that a jury could reasonably infer possession of the items in the backpack by the defendant, and today's amendment doesn't change that conclusion.  I discussed that assessment when the original opinion came out, and today, the Court of Appeal adds a fair amount of additional analysis to its conclusion.  I'm still not certain that Justice Humes gets it right, but nonetheless think that the amendments definitely add some force to his conclusion.

Second, as to the "burglary tools" part of the case, the Court of Appeal now reaches a different result than it did initially.  And the next time someone tells you that the judiciary isn't allowed to rewrite a statute, tell them to read this opinion.  Because that's exactly what the Court of Appeal does.  (And it's not even shy about it.)

The statute requires actual possession to establish guilty, but that's because the Legislature -- and I'm convinced that Justice Humes is correct here -- accidentally left out the word "or" when it amended the statute.  So the Court of Appeal rewrites the statute to insert the omitted word.

I generally think that's a permissible (and helpful) exercise of judicial review, and the right way to interpret statutes.  I'm not a thousand percent certain that you can permissibly do that in the context of criminal statutes, since there's arguably a Due Process right to be notified of what you're allowed or not allowed to do under penalty of incarceration.  If the statute says that I can't do X while Y, and I do X but not Y, I could see a legitimate complaint if they threw me in prison on the theory the statute should have said that you can't do X "or" Y.  Since I didn't violate the statute as written, and hence the mistake was the Legislature's, not mine.

The defendant doesn't seem to make that argument; indeed, as far as I can tell, his lawyer didn't even file a brief on the issue at all.  But I wonder if such an argument would (or should) be successful.


Thursday, September 19, 2019

Lindstrom v. Coastal Commission (Cal. Ct. App. - Sept. 19, 2019)

Even though Encinitas residents James and Karla Lindstrom (largely) lose this appeal, they can't (legitimately) complain that the Court of Appeal didn't give their arguments careful consideration.  Justice Irion's opinion is 52 pages long.  And it carefully -- and in my view, persuasively -- addresses the competing contentions of the parties.  It's a very good opinion, and the type I like to see.

The question revolves around the validity of various permit conditions that the Coastal Commission imposed on the construction of a very large (and expensive) residence on a vacant lot on the top of an oceanfront bluff at Moonlight Beach in Encinitas.  Of particular importance is (1) how far back from this (inherently somewhat) unstable bluff the residence needs to be built; e.g., 40 or 60 feet, and (2) whether it's okay to condition the permit on an agreement that no sea wall or other protective devices ever be employed to stop erosion.

The various tribunals below reached conflicting results.  But Justice Irion's resolution seems pretty darn good to me.  Her statutory analysis makes sense and to me from both a textual as well as policy perspective.  And she's definitely thought about the competing positions carefully and at length.  As I said, it's a good opinion.

It makes sense to me that we legitimately want the longer setback because we want the house (and bluff) to be stable (i.e., with a 1.5 safety rating) even after 75 years.  Not just standing, but stable.

By contrast, it's interesting from a policy perspective that we're now deliberately employing land use to make sure (essentially) that houses indeed collapse into the ocean over time, rather than are saved (e.g., impose "no-barriers-ever" conditions).  I'm not saying that's wrong.  Indeed, I'm sympathetic to the view, at least at some level.  (And that's a declaration against interest, since I own a home on the oceanfront that's off a bluff myself -- though there's a street between me and the bluff, and I suspect that the City will go through some fairly strong measures to save the thing before it lets my home fall into the ocean.)  When you build a house on an (inevitably) eroding bluff, it's okay to say to someone "Hey, we'll let you build the thing if you want, but you know it's going to eventually fall in the ocean, right?  No complaining in the future about that eventuality and asking to build an ugly seawall; if that is your intent, no deal."  Do I feel bad for the eventual homeowner -- likely, not the Lindstroms, who will likely have long before departed this property (and the world) before those 75-plus years expire -- who has to watch their house fall into the ocean?  Sure.  Of course.  But that's the price you pay for buying a property on an eroding bluff.  Hope you got a good deal on the thing.  At least the views of the ocean and sunsets in the interim were awesome.

I totally get the contrary arguments that the Lindstroms make.  But I think that the Court of Appeal's analysis of them was nonetheless correct.  (Including, I suspect, the small portion of the opinion that was in the Lindstroms' favor.)

We're letting people build on bluffs.  But we're also making sure that they eventually fall into the ocean.

Just not for a long while.

P.S. - I can't help but wonder whether the bluff-landslide deaths recently up in Encinitas consciously or subconsciously affected the result here.  This was definitely a high-profile event, at least down in San Diego.  And even though the case isn't about erosion that kills people, it definitely put erosion on the bluffs into distinct focus.  I wonder which party to the appeal (if either) reacted to the news of the deaths by saying "Crap.  That really hurts us here."

Tuesday, September 17, 2019

In re A.J. (Cal. Ct. App. - Sept. 16, 2019)

It's a tragic case, to be sure.  A minor with a provisional license ("learner's permit") is driving his father's car and makes an illegal left turn that hits and kills a motorcyclist.  Devastating.

Those facts hit home in part because I've got a 16-year old son at home with a provisional license, and like every 15- or 16-year old driver, I can totally imaging him making a similar mistake.  Let's face it:  New drivers are absolutely terrible.  Horrible.  Particularly teenage boys.  (Though, truth be told, my 17-year old daughter isn't exactly awesome at driving either.)

What struck me about this case is not that a motorcyclist was killed when someone took a left turn in front of them.  That happens.  A lot.  Argument number a thousand for not riding a motorcycle.  (As well as why you've got to be aware of your surroundings when you drive any vehicle.)

What's surprising is that this is not a lawsuit by the motorcycle rider (or his estate) against the driver.  It's instead a juvenile dependency wardship case.  The minor was declared a ward of the court based upon this single incident.  And wasn't even placed on informal supervision, even though the probation office itself thought that would be a good idea, given that the minor "was remorseful, had no prior delinquency history or significant disciplinary record, had been receptive to receiving services throughout these proceedings and, in fact, had taken the initiative to obtain services, and had full familial support."  Full dependency wardship and actual probation.

Such a resolution -- indeed, that it was even sought -- strikes me as unusual.  Or, at least, that it should be.  Imagine that your teenage son, or the son of a Court of Appeal judge, did the same thing:  accidentally made a left turn in front of a motorcyclist that ended in the cyclist's death.  Do you think that the usual response in such a case is to try to make the kid a formal ward of the court?  Really?  Particularly when the kid, as here, is remorseful, has no prior bad history, takes initiative in response to the accident, and has the full support of his family?

Maybe there's something not mentioned by the Court of Appeal here that explains why the parties (and court) here did what they did.  But I'll tell you:  If this happened to my kid, and as a result of an (admittedly tragic) accident, they used that one bad thing to make him a ward of the court, I'd be extraordinarily upset.

And "upset" is probably not the word I'd use at the time.

Hicks v. Richard (Cal. Ct. App. - Sept. 17, 2019)

It doesn't seem like a school principal -- any principal, and perhaps especially the principal of a Catholic elementary school -- should be saying things like this:

"As examples of making inappropriate comments and creating a hostile work environment, the letter stated Hicks "recently made the following statements in the presence of female faculty members at the School, and in some instances, either in front of children or toward children: 'she's like a dog;' 'nice legs;' 'look at her hips;' 'I don't give a shit;' 'he looks like [a] pervert (directed at an elementary student);' 'you are too fat to be a model (directed at a middle school girl),' and 'it is a shame you are having a girl (stated twice, directed at a pregnant staff member, and stated in the presence of female School employees).'" The letter also stated Hicks had commented on a female teacher's breast size in the presence of another teacher and had stated his hiring philosophy consisted of hiring attractive female teachers."

Yeah.  If he indeed did that, I could see why you might want to fire the guy.

The Court of Appeal holds that the letter at issue was protected by the common interest privilege, and hence that the defendant's anti-SLAPP motion should have been granted in its entirety.  Seems about right to me.

By the way, the Court of Appeal never names the school at issue.  It's the St. Mary, Star of the Sea elementary school, down here in San Diego County.  Pretty name.

Friday, September 13, 2019

Calaveras Tel. Co. v. PUC (Cal. Ct. App. - Sept. 13, 2019)

I suspect that opinions like this will seem quaint a couple of decades from now.  The issue is how much of a subsidy rural landline telephone companies should receive, since they (understandably) have higher costs due to the less dense nature of their customers.

I imagine that, in short order, cellular and satellite companies will have largely (if not entirely) replaced these entities.  Making this opinion seem the modern day equivalent of disputes about subsidies for buggy whip manufacturers.

If it doesn't seem that way already.

Thursday, September 12, 2019

In re L.M. (Cal. Ct. App. - Sept. 12, 2019)

It's a heartbreaking case, to be sure.  But also an uplifting one.

On one side, you've got the heartbreak that they take this tiny baby from her parents (particularly, her mother).  But not excruciatingly heartbreaking, on that front anyway.  The mother's homeless, has had two kids (including L.M.) who were taken away after the kids tested positive for methamphetamine, and the father's in custody on weapons and drug charges.  Mother's never even visited the kid.  And then Mother gets arrested on various charges, including vehicle theft.  And Father gets arrested on charges that include robbery.  To say that Mother and Father aren't going to adequately take care of the kids is an understatement.  That's not even really the issue here.

The issue is where you place the kids.

The earlier child of Mother gets placed with Rita and John E.  They eventually adopt her.  It's a beautiful thing.  They're doing great.  They live in Florida, and everything seems wonderful.

When the second child of Mother gets born (L.M.), Rita and John want that new kid placed with them as well.  They'll take care of her while the process with Mother runs in course, and in time, will likely adopt L.M. as well.  And in the meantime, L.M. will be with her biological sister.

Except for one thing.  Rita and John are in Florida, and aren't yet licensed there as foster parents.  So they immediately start that process.

But what to do in the interim?  Obviously they can't place L.M. with Mother.  So they place the kid with Kate and Jaime.

Who are also absolutely wonderful.  The kid bonds, the kid's doing great, fantastic.  Beautiful.

It takes some months for Rita and John to get certified in Florida, but they pass all the background checks, family visits, etc. with flying colors.  In the meantime, though, Kate and Jaime totally bond with L.M. as well, and decide they want to adopt her.

So then we have to decide:  Who gets L.M.?

Is it Kate and Jaime, who have cared for her since birth?  And are awesome.  Or is it Rita and John, who care for L.M.'s sister and who are also awesome?

As both the Court of Appeal and the trial court recognized, it's an incredibly, incredibly tough call.  As the trial court said after closing arguments of the parties at the trial: 

"When one becomes a judge, they send you to new judge orientation for a week, and then a little while after that, they send you to judge's college for two weeks. And then finally, if you get assigned to a[n] area of the law like dependency, they send you to primary assignment training for a week. None of those programs teach you how to make decisions like I have to make today. In making rulings like I have to make today is really the hardest part of this job. I recognize no matter how I rule, there will be people who will be devastated. And I take no joy in that. . . . Prior to making my ruling, I want the record to reflect that this court finds that based on all the evidence, that [Kate] and [Jaime] have done an excellent job of taking care of [L.M.] I believe them both to be good people, and excellent parents. I also want the record to reflect that based on the evidence Mr. and Mrs. [E.] have taken excellent care of [V.E.] and when [L.M.] has visited with them, I find that they have taken excellent care of [L.M.] as well. I believe them both to be good people and excellent parents as well. With or without [V.E.] in the mix, either of these two families would be an ideal family for [L.M.]. The issue here . . . is not whether one family is better than the other, the fact is they are both excellent. Both of them."

Ultimately, the trial court gives L.M. to Rita and John.  Principally because that way she can be with her sister, with whom she has apparently bonded during their visits and so they can be together for the rest of their lives.  Which is, of course, awesome.  And the Court of Appeal affirms.

The heartbreaking thing -- of course -- is that this means the kid gets removed from Kate and Jaime.  Not because they're bad parents.  At all.  And not because they haven't bonded with the kid, because they totally have.

Just because it's an incredibly, incredibly hard call.  One that could go either way.  And it goes against them.

So that's what I mean when I say the case is heartbreaking.

But at the same time, I wish that all the dependency cases that I read were this type of heartbreaking.  Here, there are two awesome families.  Both of whom will totally love the kid.  Both of whom are fully capable of helping the child be the absolute best child she can possibly be.  The world would be a better place if those were the stories that filled the pages of the California Appellate Reports.  In the place of all the terrible, miserable, horrible stories in those same pages in which you can only sigh and hang your head and what's likely to be the eventual outcome for the children at issue.

One final point.  There's a constant undercurrent in this case about race.  All the relevant parental units (John, Rita, Kate and Jaime) are Caucasian.  But L.M. is African-American.  As is her sister (with John and Rita).

The Court of Appeal goes to great lengths to discuss the race of the relevant parents and the kids, as well as how John and Rita "moved from San Diego to Tampa, Florida, which is 26 percent African-American," "reside in a multiracial neighborhood there," and that the first kid (V.E.) "attends a racially diverse school, and the family attends a church having a predominantly African-American congregation."  And there are repeated references as well, particularly in the trial court, by the various experts and witnesses expressing a preference for unifying the kid sisters because that way L.M. will have someone of her own race in the family.

So race is a big deal here.  Even though occasionally the references seem somewhat deliberately veiled.

In telling contrast, not a word is spoken about sexuality.  Or even marital status.  The Court of Appeal mentions that John and Rita are married.  But what we know about Kate and Jaime is that they "have had a stable relationship for seven years."  Which is equivalent thereto.  And although the reader may suspects that Kate is a woman -- and the Court of Appeal sometimes uses the word "her" to describe her -- it appears almost certainly deliberately that the Court of Appeal not once mentions the gender of Jaime.  A name often applied to both boys and girls.

That front isn't once mentioned.  Or even hinted at.

Which, of course, is how it should be.  Which shows you in part how far we've come from the bad old days.

I'll mention, though, that even though the opinion only uses first names and initials, it's not that hard to figure out the identity of Kate and Jaime, since we know they're in San Diego.  Looks like they had an absolutely gorgeous (and fun) wedding, and one that's well-documented online.  And even a little digging will also reveal pictures of L.M. on Kate's Facebook page.  Alongside some heartbreaking comments that reflect and understanding that the child now resides elsewhere.

John and Rita and Kate and Jaime did wonderful things.  Each and every one of them.

You feel incredibly bad that something so heartbreaking necessarily had to happen to two of them.

People v. Thomas (Cal. Ct. App. - Sept. 12, 2019)

I suspect that Justice Lui is entirely correct in this one.  There's enough evidence of an intent to cause great bodily injury, so the trial court didn't err in denying the defendant's petition (pursuant to the new initiative) to get out of his three strikes sentence.

Yet I gotta say that -- apart from the merits -- I'm uncomfortable with sentencing the guy to 25 to life for this offense.

What'd he do?  He basically sucker punched a friend of his and broke his jaw.  For no good reason other than they were arguing.  That's (of course) not okay.  As the victim quite artfully said in a letter he wrote to the defendant right before his trial:  "But Ray, you can’t be sucker punching people because things aren’t going your way."  True that.

But it was profoundly meaningful to me that the victim didn't want the guy going away to prison for the punch.  Even though he was the victim and lost 20 pounds when he jaw was broken.  I was struck by this paragraph of the opinion:

"After Chillious [the victim] was released from the hospital, appellant went to Chillious’s apartment and apologized. Chillious was reluctant to testify in the case because he felt sympathy for appellant and his daughter. Before trial, Chillious wrote appellant a letter in which he said, ‘I don’t want you to be sent away. But Ray, you can’t be sucker punching people because things aren’t going your way.’ He also told appellant he planned to lie at the next court hearing by testifying that appellant punched him in self-defense after Chillious pushed appellant. Chillious wrote that he knew appellant did not mean to break his jaw, and he did not ‘want to see [appellant] in the system for something [he] didn’t mean to do.’ Finally, Chillious said that he considered appellant to be a friend, and he hoped appellant would be out of custody within a couple of months."

Now, look, just because the victim sincerely doesn't want the guy prosecuted doesn't mean that we don't prosecute the guy.  There's no veto there.

But, nonetheless, it matters.  Particularly when the dispostive question is whether we send someone to prison for 25 years to life for something that the victim himself forgives -- where the victim doesn't want the guy to do any more than a couple months (if that) in jail.  That's a harsh sentence.  Facially overly harsh, in my view.  What the victim in a case like this genuinely wants matters.  To me, anyway.  At least in a three strikes, rest-of-eternity-in-prison type of situation.

Maybe -- maybe -- I'd feel differently if the guy had committed three prior murders or stuff like that, and the instant offense is proof positive that it's just a matter of time before the guy impulsively kills again.  But there's no indication of substantially harsh criminal history in this opinion at all.

Because it mattered to me, I went back and looked at the guy's prior offenses.  Burglary, grand theft, assault, and possession.  Plus repeated parole violations.  Nontrivial, to be sure, but hardly the worst.  The guy obviously has a significant criminal past, plus a drug and impulse control problem.  So he uses and steals and -- as here -- occasionally gets pissed and punches people.

But 25 to life when it's a single sucker punch and the victim himself legitimately doesn't want the guy to serve pretty much any time?  Wow.

That's not to say, at all, that anything that transpired here was illegal, or contrary to law.  Maybe every single judge did what was totally within their discretion to do.  Probably, even.

But still.  Wow.  Incredibly harsh.

At least to me.

Wednesday, September 11, 2019

U.S. v. Campbell (9th Cir. - Sept. 11, 2019)

Students who learn about dubitante opinions sometimes ask me how they differ from concurrences.  I typically tell them that, generally, a dubitante is no different that a concurrence with reservations.

Here's a perfect example.  Judge Berzon joins the judgment.  She just wants the Sentencing Commission to change (and make clear) the rule that she'd prefer.

Which is totally fine.

But there's a judgment.  One from which she doesn't dissent.  Hence she concurs.

Or at least that's my (overly binary) approach to the thing.

Tuesday, September 10, 2019

Machado v. Myers (Cal. Ct. App. - Sept. 10, 2019)

Never sue your neighbor.

That's an overgeneralization, for sure.  But it's still good counsel.  Lawsuits between neighbors almost invariably last substatantially longer -- and cost far more money-- than any of the parties anticipate.  And when they're eventually over, no one's happy.  Not a single party feels like they've "won" the thing.

Because generally, in the scheme of things, everyone loses.

Today brings yet another example of this general proposition.

Look how long the lawsuit lasted.  Imagine how much money was flushed down the toilet on legal fees.  Look how it ends up.

No fun for anyone.

Wednesday, September 04, 2019

Jessop v. City of Fresno (9th Cir. - September 4, 2019)

I wrote -- but didn't publish -- the following back in March.  I'll use all-caps when I'm back to the present day:

What?!

There are certain things that I would have thought would be totally straightforward.  Let me give you one of them:

The Constitution doesn't permit police officers to steal your property.

To be clear, I'm talking about actual theft.  They come into your home, take $50,000 from you, and put it in their pockets.

I'm uncertain whether that'd violate the Fourth Amendment as an unreasonable seizure.  I'm uncertain whether that'd violate the Fourteenth Amendment as a violation of substantive and/or procedural due process, or perhaps as a taking without just compensation.

But what I nonetheless feel confident about is that our Constitution does not permit state officers to come into your home, steal your money, and then go along their merry way.  I feel pretty strongly that the Founders did not think that such governmental conduct would be permissible under the principles our Republic was founded.

But the Ninth Circuit disagrees.

The facts are totally straightforward.  The police officers at issue execute a search warrant and seize some property pursuant to the warrant, and fill out an inventory form that says that they only took $50,000.  But the owners of the property say that the officers actually took over $150,000 in cash -- plus another $125,000 in rare coins -- and simply pocketed the difference.

To me, there's no way that government officials can do that consistent with the Constitution.  What's the point of the Fourteenth Amendment -- its just compensation clause, its protection of property, etc. -- if the government is permitted to simply take your property from you with utterly no remedy under our foundational principles?! It just doesn't make any sense.

But Judge Milan Smith -- joined by Judges Nguyen and Rastani (sitting by designation from the Court of International Trade -- holds that there's no federal remedy.  Because, to them, it's "unclear" whether the Constitution permits police officers to straight up steal your property, and hence there's qualified immunity.

No way.

To me, this is one of those cases "in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that we must conclude . . . that qualified immunity is inapplicable, even without a case directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013)."  For example, I'm sure there's no case on point that says that police officers can't turn you into a flea, or for you to parade naked during the Rose Bowl parade, or a whole plethora of other things that they obviously can't do.  Outright stealing from you is another one of those things that, to me, is so totally obvious that there doesn't need to be a case.  And I'm sure even the police would agree with that principle.  You can't steal.  That's obvious.  Full stop.

BACK TO SEPTEMBER:

Now, today, the Ninth Circuit amends its opinion.  Among other things, Judge Smith -- who authored the unanimous panel opinion -- adds a concurrence that explains that while the result is unfortunate, and while it might appear "at first blush" that this is an obvious violation of the Constitution, that's just not true when one looks in more detail.

Respectfully, though, I think no manner how closely you look, one's intuition here stands.  You can't steal, and everyone knows it.

I'm also not persuaded by the concurrence's argument that since the warrant authorized the officers to take all the money, and that's what they did, no right was violated since the Fourth Amendment only protects the initial seizure, not what happens thereafter.  I think that slices the meat far too thinly.  It's one think to take your property and put it in a court, where you can potentially get it back.  But to flat out steal that property is another.  The rights deprivation resulting from the latter is far more serious than the former.  Moreover, even if this out-of-circuit precedent is right, and the Fourth Amendment doesn't stop the police from stealing your stuff, then I feel fairly confident that other portions of the Constitution -- the Fourteenth Amendment comes to mind -- do.

Maybe the Framers thought:  "We want to make sure that the government doesn't store an army horse in someone's house, and that it doesn't take someone's property without paying for it, but if the state comes into your house and steals all your money, we're fairly cool with that."

But I doubt it.

Tuesday, September 03, 2019

Arias v. Residence Inn by Marriott (9th Cir. - Sept. 3, 2019)

One problem arising from accepting interlocutory appeals in CAFA cases is that the whole time the appeal is pending in federal court, proceedings on the merits continue apace in state court.  Leading to situations like this.

The state court's sitting on a summary judgment motion only to have the Ninth Circuit reverse and remand so the district court judge can think about whether to reassert federal jurisdiction.  Resulting in yet more delay and complexities as the pending-for-quite-a-while state court litigation potentially gets put on hold.

But at least the panel -- commendably -- got its opinion out ASAP.  Oral argument in August and a published opinion the first business day of September.

Friday, August 30, 2019

In re D.R. (Cal. Ct. App. - Aug. 30, 2019)

Looking for a father before taking away his kids?  You've got to look on Facebook.  Otherwise we're going to reverse you.

So holds the Court of Appeal.

More accurately, you've got to look on Facebook when there's ample reason to believe (as here) that the father's relatives -- to whom you can easily talk -- can point out which Facebook page is father's.  It's not enough to just look on Facebook and say "There are too many people with that name; we can't tell which is Father."  Just ask his brother.  He knows which one.

Not that tough.

Capp v. County of San Diego (9th Cir. Aug. 30, 2019)

San Diego attorney Jonathan Capp receives some good news today from the Ninth Circuit, which reinstates (in part) his lawsuit against the County of San Diego in a matter arising out of its child welfare investigation of his family (while he was in the midst of divorce proceedings).

But be careful what you wish for.

The Ninth Circuit holds that Capp -- who's representing himself -- has adequately pled a retaliation claim.  But the panel repeatedly notes that this doesn't necessarily mean that Capp will survive on summary judgment.  Just that he's adequately pleaded the cause of action.

I suspect that the district court judge shares the Ninth Circuit's implicit skepticism over whether the County really retaliated against Capp, or was merely (as it will certainly contend on remand) worried about the welfare of Capp's children.

But for now, Capp gets to continue his lawsuit.

Whether that will turn into additional time tilting at windmills remains to be seen.

Thursday, August 29, 2019

In re Conservatorships of M.M. & D.C. (Cal. Ct. App. - Aug. 29, 2019)

The most recent opinions published by the Court of Appeal (here and here) are both conservatorship cases.  Both under the Lanterman-Petris-Short Act (LPS).  Which means they involve individuals with serious problems (and, as a result, serious constraints).

In the first case, M.M. had a history of "schizophrenia and psychotic disorders, was unwilling to accept voluntary treatment, and [was] unable and unwilling to provide for his personal needs for food, clothing, and shelter."  He also had serious medical issues, and was admitted when he passed out on a bus.  His testimony at his hearing was often "rambling and nonsensical," and the jury found him gravely disabled.

In the second case, D.C. had also been diagnosed with schizophrenia, and was placed on a 5150 hold  "after she threatened to hit her mother and 'burn the house down with [her mother] in it.'"  When the responding officers when to her home, furniture was strewn all round the place, and there were holes in the walls.  Her thoughts were tangential and disorganized, and she was so agitated that she had to be sedated.  She also tested positive for amphetamines (which I'm sure didn't help).  And she had an incredibly serious lice problem.  (Yuk.)

To give a sense of D.C.'s thinking, at trial, when she was asked whether or not she agreed with her diagnosis of schizophrenia, she testified:  "I think I know what they’re talking about, but it’s—well, I thought it was like when you don’t understand you yell, and because I used to see them throughout my window, the guys that would come through the burger stand, and I would shut my window and be yelling, and my mom said maybe you are schizophrenic or something. . . . I says no.”  Uh, yeah.  I'm not surprised the jury found her gravely disabled as well.

The depressing thing about these cases is that you wonder whether the people at issue are ever going to get better.  Or whether, instead, they'll be institutionalized forever.  Or, alternately, caught in a vicious and never-ending cycle of being treated, released, going off their meds, being readmitted, retreated, rereleased, readmitted, etc. until they ultimately die.  None of which sounds good.

And how not fun would be it to be a juror in one of these proceedings?  You sit there listening to the horror that is someone else's life and then decide to institutionalize them even though they haven't done anything wrong to anyone -- basically because there's no good alternative.  I'd much, much rather be a juror in a civil or criminal case.  Ditto for being a judge in those proceedings, I suspect.

Of course you want to maximize someone's liberty if you can.  But these cases seem almost invariably depressing.  With, again, not much of an alternative.

So that's how this afternoon has gone so far in the Court of Appeal.

Wednesday, August 28, 2019

In re R.C. (Cal. Ct. App. - Aug. 28, 2019)

Justice Currey begins this opinion by saying:  "This case underscores the critical need to educate our youth about the evils of misogyny and sexual bullying, and the virtues of respect, kindness, and compassion."  Laudable goals, to be sure.

But "misogyny and sexual bullying" may understate the nature of the transgression here.

"R.C., then a high school student, used his cellphone to record a video of a classmate, K.V. — without her knowledge or permission — while they were engaged in consensual sex. K.V. repeatedly asked him to delete the video. In response, R.C. unsuccessfully tried to condition deletion of the video on K.V.’s agreement to have sex with R.C.’s friend."

That's not just sexist bullying.  It's disgusting.  The exact opposite -- I agree -- of "respect."

Ultimately, I agree with the Court of Appeal that the camera here was "concealed," though I think the issue's a close one. The cell phone camera wasn't "hidden" like you usually think the word entails.  It was right out in the open.

But R.C. held the camera up (while they were having sex) behind her back, and didn't tell her that he had started recording until after.  Putting it behind her back, where she couldn't see it, counts as that camera being "concealed."  Since a reasonable factfinder could conclude that one reason R.C. put it there, rather than in front of her, when he started recording was to start filming without her consent.

I cannot tell you what I would do to any of my children if they did what R.C. did.  (And that's even without the whole "I'll delete it the video if you have sex with my friend" stuff.)  Because it would involve extraordinary measures.

People v. Buchanan (Cal. Ct. App. - Aug. 28, 2019)

I'm not even going to describe the facts of this kidnapping and sexual assault case.  You can read them for yourself if you'd like.  Suffice it to say that these facts, plus Mr. Bucanan's history as (inter alia) a sex offender, more than explain why he was convicted and sentenced to forever in prison.

Not someone you want out on the streets.  Particularly if you are a woman.

Tuesday, August 27, 2019

In re Marriage of Taeb (Cal. Ct. App. - Aug. 26, 2019)

Maybe it's just me.  But if I was an attorney (and I am), I'd rather just pay a $2000 sanction award against me than (1) spend the time and effort to appeal that award, and (2) subsequently endure a 27-page published opinion that mentioned my name 90 separate times (!) and announced to the world in excruciating detail the mistakes I made and why the trial court was fully warranted in sanctioning me.

Especially since I have to pay the $2000 either way.

Sacramento-area attorney Michelle Trigger made a different call.  This opinion was the result.

In retrospect, probably a mistake.  Even if you don't have several thousand dollars lying around within easy reach.

Still better than the alternative.

Benton v. Benton (Cal. Ct. App. - Aug. 27, 2019)

Today's ten-page opinion can be accurately be summarized by saying:  "The statute says you can't appeal here.  So you can't.  Appeal dismissed."

Yep.  That's what it says.  Pretty clearly.

Monday, August 26, 2019

U.S. v. Town of Colorado City (9th Cir. - Aug. 26, 2019)

When was the last time you saw the United States sue an entire city.  Not the residents.  But the actual city itself?

And when was the last time you saw a lawsuit that claimed that an entire city had been taken over by a particular religious organization, and that town's police power abused to advance the interests of that religion (and its members) -- to the detriment of "apostates," no less?

And it'd be even worse if the religious group in question was a particular sect that believed in child marriages and actively helped the leader of that group evade an FBI warrant for sexual misconduct with children, right?

Yet that's all here.

Not something you see every day.

Friday, August 23, 2019

Edmo v. Corizon (9th Cir. - Aug. 23, 2019)

It's fairly unusual for a high-profile, 84-page opinion to be per curiam rather than signed by its author.

Yet here you go.

I wonder if the author of the opinion prefers to remain anonymous, for professional or other reasons.

Read the subject matter and try to figure out why the author of such a lengthy (and careful) opinion might want to just be part of a panel opinion.

Rank speculation, of course.

Huerta v. City of Santa Ana (Cal. Ct. App. - Aug. 23, 2019)

It's undeniably tragic that three little girls were run and killed on Halloween night in 2014 as they crossed the street in a marked crosswalk.  The person who hit them fled the scene but was captured two days later.

The dissent says that the accident might have been caused by a tree that cast shadows that evening onto part of the crosswalk.  But that's the dissent.

The majority says there isn't a genuine issue of material fact; the shadows didn't cause the accident, which was instead caused by a hit-and-run driver who was going between 50 and 70 miles per hour -- on Halloween evening, no less -- on a street that had trick-and-treaters dressed in all black and a posted speed limit of 25 mph when kids were present (and 45 mph otherwise).

Just because you have an expert doesn't mean that you'll necessarily get to trial.  As here.


Thursday, August 22, 2019

Nicholson v. Gutierrez (9th Cir. - Aug. 22, 2019)

The Ninth Circuit gives the plaintiffs in this case some good news and some bad news.

The good news is that they get to go to trial on the theory that they shouldn't have been detained in handcuffs for five hours.  Which is nice, since all they were doing was hanging around before school listening to rap music and getting on their school uniforms.

The bad news is that they don't get to seek relief for something far more serious:  Getting shot in the back by a police officer for no good reason.  Yes, it violated the Constitution.  Yes, a police officer should not shoot someone in the back, even if he has a plastic airsoft gun (with an orange tip) that's not being pointed at anyone as he and his friends hang out before school.  But the Ninth Circuit says that wasn't really clear before now, so there's qualified immunity.

So no relief for being shot.  But feel free to get damages for the five hours you spent in handcuffs.

Small "victory".

Ray v. County of Los Angeles (9th Cir. - Aug. 22, 2019)

How many cases do you see that decide whether a lawsuit is barred by the Eleventh Amendment?

Not many.  But you get one today.

Tuesday, August 20, 2019

Williams v. Superior Court (Cal. Ct. App. - Aug. 20, 2019)

I don't know.  Maybe.

A prosecutor makes a mistake.  There's a grand juror who finds out she's not going to get paid for her time, so she asks to be excused, and the prosecutor says okay and excuses her.

That's wrong.  The prosecutor can't do that.  Only a judge can.  (Of course, there's no judge there at the time, which is why the prosecutor thought it was his job.  Even though it's not.)

So the question is whether that requires dismissal of the indictment.

The Court of Appeal says it does, because having the prosecutor be the one who dismisses the grand juror makes it look like the prosecutor is controlling everything and the grand jury might accordingly be beholden to him.

Hmmm.  Maybe.  Though I suspect that's not what most of the grand jurors think.  At all.  The basic structure of the grand jury already gives the prosecutor a "lead" function, at least perceptually.  When you're dealing with what seems like a routine thing -- a hardship request -- I doubt whether the grand jurors think that having the prosecutor say "That's fine, you're excused" is anything more than a pure administrative function.  I'm not sure it really makes the grand jury think that the prosecutor is totally in charge, or akin to a judge.  Or at least not more than the preexisting fact that the prosecutor is the only key government official that the grand jury typically sees on any given day.

So, yeah, a mistake definitely transpired.  But it was an honest mistake, and one that I'm not certain really mattered at all.  Particularly since there were still 18 grand jurors left, and it only took 12 to return an indictment.

So maybe the grand jury was really swayed by what transpired here.

But I tend to doubt it.

Dryoff v. Ultimate Software Group (9th Cir. - Aug. 20, 2019)

Have a sports injury. Get addicted to opioids. Buy heroin online. Die when it's unknowingly laced with fentanyl.  Sue.  Lose.

A life in twenty words.

Monday, August 19, 2019

U.S. v. Shayota (9th Cir. - Aug. 19, 2019)

"Counterfeit Five-Hour Energy Bottles and the Fifth Amendment."

Available for your review here.  Courtesy of Judge O'Scannlain.

U.S. v. Cuevas-Lopez (9th Cir. - Aug. 19, 2019)

An Obama appointee writes an opinion that says that someone should be locked up longer for illegal reentry after deportation, and a Bush appointee dissents, saying that he should be locked up for less.

What a world.

Thursday, August 15, 2019

People v. Sanchez (Cal. Ct. App. - Aug. 15, 2019)

A 33-year old (Adult) hangs out with a 13-year old (Kid). At 3 a.m., Adult and Kid have seven or eight French-kisses.  During the next three months, Adult and Kid -- now 14 -- engage in a ton of secretive text and instant messages, with Adult repeatedly expressing love for Kid, buying presents, etc. On the night before the Super Bowl, Kid sneaks out of the house and meets up with Adult, and they French kiss again, Adult kisses (and leaves a hickey) on Kid's bare breast, etc.  Kid eventually tells the story to a teacher, who reports the whole thing to police. Adult is criminally charged and convicted.

No prior criminal history for Adult. What's the appropriate sentence for Adult?

(A) 20 years in prison.
(B) 12 years in prison.
(C) 5 years in prison.
(D) 2 years in prison.
(E) Probation.

No actual sex.  But a fairly long history of grooming and molestation.  And Adult is 33 and Kid is 13 and 14.  Big gap.

Oh, and if it matters:  Kid is Adult's step-grandfather's niece.  So it's a familial thing.

So what's right?

Got your answer?

Now for the actual sentence that gets imposed in this case.  I suspect it's not the same as the choice you made.  The actual sentence is at one of the two extremes of the options I gave.  (A) or (E).

Which do you think?

Answer:  Probation.  Straight up.

Does it matter that Adult's a woman, and so is Kid?

You don't see many probation sentences these days when a 33-year old repeatedly molests a 13-year old extended family member.