Thursday, May 26, 2016

People v. Dokins (Cal. Ct. App. - Oct. 30, 2015)

A fifteen-year old gang member shoots and kills a fourteen-month old baby in a "drive-by" shooting in which the defendant was riding a bike.

The baby is dead.  The fifteen year old is essentially sentenced to spend the rest of his life in prison, albeit with a (slim) possibility of parole.

There's not even massive evidence that the fifteen-year old did it.  He probably did.  But in a perfect world, you'd want a lot more than the (notoriously unreliable) eyewitness evidence that was the basic reason for defendant's conviction.

No winners here.  None.

Tuesday, May 24, 2016

Sialoi v. City of San Diego (9th Cir. - May 24, 2016)

I'm not sure why the City of San Diego filed an appeal in this one.

Here's how the Ninth Circuit describes the case:  "In October of 2010, officers with the San Diego Police Department responded to a report that two armed black males had been seen in the parking lot of an apartment complex. When they arrived, the officers, armed with assault rifles and eventually numbering over twenty, encountered not two armed black males but a large Samoan family celebrating the birthday of a seven-year-old girl. The officers detained the members of the family (handcuffing the vast majority of them, including numerous adolescents) and then searched each of them for weapons. Finding nothing incriminating, the officers then searched the family’s apartment without a warrant or consent. Again finding nothing incriminating, the officers left without removing a single family member from the scene or filing any charges."

Needless to say, a Section 1983 lawsuit follows.

San Diego moves for qualified immunity on behalf of the defendant officers.  The district court denies the motion.  On every single point.  The City appeals.  The Ninth Circuit rejects the appeal.  On every single point.  Without a single vote to the contrary.  (And it's a mix of judicial philosophies:  the panel consists of Judges Reinhardt, Paez, and Milan Smith.)

All that the appeal seems to accomplish is to delay the lawsuit and run up legal fees.  The City's as well as the plaintiffs'.  The latter of which the City will pay as well if the plaintiff prevails.

My tax dollars hard at work.

People v. Espino (Cal. Ct. App. - May 24, 2016)

Police conduct a pat-down search of Freddy Espino.  They feel something in his pocket.  They think it might be crack cocaine.

Turns out it's not crack cocaine.  What is it, then?

No, not that.

It's a . . . diamond.  Which they discover after handcuffing the dude and pulling the thing out.

Not what the police were expecting, I'm sure.

Unfortunately for Mr. Espino, after the police pulled out the diamond, after "some hesitation," he also gave consent for the police to search his car.  There, the police officers discovered something that they're far more used to seeing.


Fortunately for Mr. Espino, however, the Court of Appeal holds that the officers did not have probable cause to keep him under arrest when they requested his consent (post-diamond) to search his vehicle.

Conviction reversed.

Presumably he gets back the diamond too.

Monday, May 23, 2016

In Re Ivan N. (Cal. Ct. App. - May 20, 2016)

This is, inter alia, why I don't want to do dependency law.  As well as why I profoundly respect the people who do:

"When the minor was 17 years old and had been in his adoptive home for three years, his adoptive parents learned from an incident at their home that he had molested their daughter, age 7 (sometimes termed the 'victim'). The minor admitted that he had used his hands and penis to touch her genital area several times over the past year. He was arrested and confined at juvenile hall. . . .

During an interview, the minor apologized and admitted he should not have molested the victim, which he did to get back at his parents. . . . On May 18, 2015 at the dispositional hearing, the minor agreed to the proposed residential placement, but requested a hearing on whether he should be allowed to return to the North San Diego County high school he had previously attended, his "school of origin" within the meaning of Education Code section 48850 et seq. (ch. 5.5, "Education of Pupils in Foster Care and Pupils who are Homeless"). He had friends there and had been passing all of his classes. . . .

At the disposition hearing, the court heard from the minor's parents. His mother (also the victim's mother) was concerned that it would not be appropriate to return the minor to his local high school, since their other children attend a grade school across the street and it would be difficult for them not to see him there."


Thursday, May 19, 2016

Center for Biological Diversity v. Cadiz (Cal. Ct. App. - May 19, 2016)

From today's opinion:

"It is ordered that the opinion filed herein on May 10, 2016, be modified as follows: On page 2, in the third editorial paragraph, beginning 'Best & Krieger,' delete 'Best & Krieger' and replace it with 'Best Best & Krieger.' This modification does not effect a change in the judgment."

As they say, it's important to get one's name right.  Especially to make clear that one's not just the best, but the best best.

Roe v. Superior Court (Cal. Ct. App. - Dec. 18, 2015)

I teach my first-year law students every year that you're only allowed to conduct a physical or mental examination of a party.  That's true in federal court.  That's true in California state court.  It's true pretty much everywhere they might practice.

I try to make the rule memorable by recognizing that it's a principle that's not without cost.  Say you have an eyewitness, and the critical question is whether this eyewitness has good vision or not.  The easiest way to figure this out would be to order an exam.  You could do that if he was a party, rather than a mere witness.  But if he's a witness, no matter how critical the inquiry, no matter how critical the exam, a court can't order one.

We fear that compelled physical or mental exams of mere witnesses are too burdensome, plus there are enforcement and liberty concerns (will we really strap them down if they resist?!) that don't apply to a compelled examination of a party.  Seems crazy, in a way, since sometimes a lengthy deposition is far more burdensome than a 15-minute visit to the eye doctor.  That's the rule.  Know it.

The California Court of Appeal reaffirms that rule here.

The trial court thought it could not only order a mental examination of the minor plaintiff (which it surely could), but could also the parents to submit to interviews with the defense forensic psychiatrist.

Nope.  That latter thing you can't do.  They're not parties.  No physical or mental exams.  Period.

The trial court got it wrong.  Hopefully my students will get it right on their exams.

And now, you'll get it right every single time.

Only parties.  That's the rule.

Wednesday, May 18, 2016

U.S. v. Tadios (9th Cir. - May 18, 2016)

Why is this case ostensibly so easy?

Judge McKeown writes a published opinion that disposes of the appeal in four pages.  Ms. Todios was a salaried employee who visited her husband while she was supposed to be working, and she was convicted of converting federal funds for (among other things) charging her visits to South Dakota to a federally-funded credit card.

Fair enough.  That's a crime.  I've got no problem with that.

As for her restitution, clearly, she's got to pay back the money she stole.  She said that she was doing a five-day "site visit" in South Dakota, when, really, she only spent two hours at the actual site, and the rest of her time visiting her incarcerated husband.  Okay.  Money back.

But the government also wants her to grant restitution for the "value" of her salaried time.  And that calculated "loss" also increases her sentence under the guidelines.

That'd be totally fine with me too.  If she was paid hourly.  But she's not.  She's paid a salary.  That's her argument on appeal.  That she was paid an annual salary whether she worked one hour a year or three thousand -- indeed, federal wage and hour law requires precisely that -- so there was no "loss" to the "value" of her missed time.

Judge McKeown's opinion, however, says that this argument "strains credulity".  But why?

Don't get me wrong.  I understand the impulse.  We usually do think that "time is money".  And I too wouldn't especially like a system where a government employee could sleep on the job and still collect the entirety of her pay.

But -- and I understand this may come as a shock to someone -- that's the system we have.

Take Judge McKeown's law clerks.  They're paid a government salary. They're salaried.  Imagine that one of them decides that he's not all that psyched about his job any more.  So he comes in one day, does 10 minutes of work on a draft opinion -- let's call it U.S. v. Tadios II -- and then closes his door and sleeps at his desk for the rest of the day.  Same the next day.  Same all week.  When Judge McKeown asks him what he'd done that week, he says he's "busting his hump on Tadios II."  But then Judge McKeown notices some drool on his desk, and also that the draft opinion only contains three sentences.  At which point the law clerk comes clean.

Now, there's no doubt that Judge McKeown's clerk can be fired for that.  (And would be.)  So when Judge McKeown's opinion cites federal personnel policies that say that sleeping on the job and not doing work constitutes an offense worthy of termination, I totally agree.

But that doesn't answer the question.  Which is whether the clerk could be found guilty of "stealing" government time -- which, under Judge McKeown's view, is equivalent to stealing the government's money.  As well as if, so convicted, the law clerk would also have to pay for the value of his time.

That's the dispositive issue.  And on those points, I think Judge McKeown's opinion is pretty aggressive.  And certainly not self-evident.

Plus, how far does this go?  Imagine that the law clerk gets all his work done in four hours, and sleeps the rest, but doesn't tell the judge he was sleeping.  Under Judge McKeown's analysis, there was a "loss" to the government that the employee stole.  But the law clerk did his job.  Where's the "loss" -- even if "time is money" -- if the judge expects Opinion X and gets Opinion X because the clerk can do it in half of the expected time.

Look, I understand that Judge McKeown may be upset.  Rightly so.  And have full authority to fire the guy.  For lying.  For being lazy.  For whatever.

But getting your work done early and then taking it easy?  That's a federal offense?!  With a "loss" to the government even though you fully satisfied your employer's expectations?  Really?

Such a view also seems inconsistent with actual federal law.  Because for the four-hour law clerk, I readily admit that you can fire him.  But guess what you can't do?  Dock his pay.  Because he's an exempt employee.  Which means, as a matter of law, whether he works one hour, four hours, ten hours, or ten minutes, he gets the exact same amount of pay.  As a matter of law.

Which seems somewhat inconsistent with Judge McKeown's view of a "loss" to the government.

Plus, again, where does Judge McKeown's argument stop?  Imagine that a law clerk works ten hours on Todio II one day, but tells the judge that he worked twelve.  Is that two hours of an actionable loss to the government?!  He lied, after all.  That was two more hours of work that he said he did -- that he could have been working on other drafts, or working harder on this one -- and didn't.  If it's the lie (on a timesheet or otherwise) that results in the offense, or at least a lie plus time-is-money, then Judge McKeown has to say that's an actionable loss as well.  Yet that'd seem shocking to me.  Especially since federal law says that the clerk -- just like Ms. Todios -- gets $X salary whether she works one hour, eight hours, or twelve.

I'd have liked Judge McKeown's opinion to explore these problems.  But it instead just says that it's fairly self-evident that we've got to count time as money and that, otherwise, government employees could sleep on the job and we could do nothing about.  Since we could do something about it -- fire them, as indeed transpired here.  But, even if we caught them, the one thing we couldn't do is to dock their pay.  Yet the Ninth Circuit nonetheless call it a "loss" subject to restitution and a sentencing enhancement.  That facially seems a problem to me.

Plus, is this opinion really consistent with workplace realities?  Imagine the clerk writes down that he worked eight hours.  But, really, he was checking ESPN and going to the bathroom for 15 minutes in that period.  Federal offense?!  Restitution for that time?!  It's a lie, after all.  And time is money.

Finally, I'm not even sure that all of this is even necessary to resolve the present case.  Ms. Todios appears to have taken off five days of work and only spent two hours on the site visit.  Federal law says that a salaried employee gets fully paid if she works even a single minute in one day.  So on the one day (presumably) that Ms. Todios did the site visit, maybe we don't count a "loss" for that day.  But the other four days, when she did nothing, she could be docked for those days.  That's a loss for which restitution clearly (at least in my view) could be ordered.

And, don't forget, we're not talking about whether Ms. Todios gets off.  She used a government card for personal expenses.  She's going away.  She'll have to pay restitution.

The only question is whether she also has to pay for the "value" of her partial days.

Judge McKeown says that it strains credulity to say that she shouldn't have to.

Of that I'm not so sure.

Tuesday, May 17, 2016

In Re Conservatorship of Bower (Cal. Ct. App. - May 16, 2016)

You read about all sorts of depressing things when you look at the Ninth Circuit and California Court of Appeal opinions.  Murders.  Rapes.  Child abuse.  Lots of nasty, nasty stuff.  Stuff that ends of making you alternately happy to be where you are and yet saddened by the human condition.

This opinion is a different type of non-uplifting story.  It's not a criminal case, which is where most of the ugly stuff appears.  But it still tells a tale that's part of the There-But-For-The-Grace-Of-God-type of opinions:

Sometime around 2007, when David would have been about 51 years old (and Lynn about 47), David was diagnosed with frontotemporal dementia, otherwise called FTD. Frontotemporal dementia is a term that describes a group of mental disorders affecting both an individual’s memory and personality. Often the afflicted person will begin to act out of character. In David’s case, his dementia appears to have precipitated a craving for alcohol and a hostility toward his family (his wife Lynn and their three young adult children). . . .

The record does show David’s condition has been more specifically classified as “semantic” dementia, which impairs parts of the brain affecting language. While David appears to have lost the ability to articulate words, or read or write, there is some indication in the record he can communicate his thoughts and feelings through gestures, like a thumbs up sign for yes or crossing his arms over his chest for no. Whether or not his thoughts and feelings are themselves the product of his dementia appears to be an open question.

Beginning in 2007, Lynn began to manage the couple’s real property empire alone. During this period, David began more and more to perceive his wife Lynn and his children as his enemies. He wasn’t exactly banished, like Rochester’s wife in Jane Eyre, to an attic, but – apparently, at Lynn’s direction – he did begin living in a cottage in back of the family home.

Perhaps because of this estrangement from his family, in June 2009, David signed a power of attorney form giving his sister Andrea control over all his financial matters. A little more than a year later, in September 2010, Andrea caused David to file a petition for dissolution of his marriage to Lynn. But the proceeding went nowhere. In March 2011, at Lynn’s behest, the family law court dismissed the dissolution action, finding that David lacked the “necessary mental capacity to form or express his independent resolve, free of any undue influence, to legally dissolve his long term marriage based on irreconcilable differences.” The family law judge continued: “The evidence is overwhelming that David lacks the requisite mental capacity to maintain these proceedings and any evidence to the contrary is characterized as de minimis, if any at all.”

As if to confirm the family court’s characterization of David’s lack of capacity, the day after the family law judge dismissed the dissolution action there was an incident in the family home that prompted his temporary hospitalization under section 5150 of the Civil Code. A gun was visible on a counter and David made “shooting motions” toward Lynn and his daughter Rachel. The incident prompted Lynn to call the police, who took David to the “psych ward” at UCI Medical Center. (David’s inability to speak would have, if anything, made the gesture more objectively frightening since it could have conveyed more than just ineffable antipathy.)

David was soon transferred, at Lynn’s direction, from the UCI center to a facility called Silverado. Andrea, however, objected to Silverado, and took David from Silverado to her own home in Escondido. There he developed a habit of breaking into neighbors’ houses to take beer from their refrigerators."

Not good.

Monday, May 16, 2016

People v. Herrera (Cal. Ct. App. - May 16, 2016)

Whoa.  See what you think about this one.

The popular media might describe the case in a plethora of different ways.  Maybe they'd call it a "gay rage" case.  Maybe they'd be more accurate and call it a "PTSD" case.  Maybe, in a perfect world, we would all concisely (and accurately) describe the opinion as revolving around the degree to which "expert testimony explaining how [a defendant's] past history of trauma was likely to affect his mental state at the time of the offense."  (Or, to put it a slightly different way -- and in support of a different conclusion -- whether "a mental health expert may [] give testimony that the defendant did or did not form the mental state required for the crime charged.")

Either way, it's an interesting case.  With interesting facts.  And a split between the majority and the dissent.

See which of these two opinions you find more persuasive.  The answer's by no means clear-cut.  And in the meantime, there are some scintillating -- though depressing -- facts to keep you interested in the outcome.

Friday, May 13, 2016

Lopez v. Sony Electronics (Cal. Ct. App. - May 13, 2016)

Justice Grimes writes an opinion today that's crystal clear as to its holding.  The introduction to the opinion is as informative as it is concise:

"We are asked to resolve whether an action alleging personal injuries caused by prenatal exposure to toxic substances is governed by the statute of limitations set forth in Code of Civil Procedure section 340.41 (applicable to tort actions for birth and prebirth injuries), or the statute of limitations set forth in section 340.8 (applicable to tort actions for exposure to hazardous materials and toxic substances).

Plaintiff and appellant Dominique Lopez, at age 12, by and through her mother and guardian ad litem Cheryl Lopez, brought an action against defendant and respondent Sony Electronics, Inc. (Sony) alleging that her prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries. Sony successfully argued in the trial court that plaintiff’s action was time-barred under section 340.4, which expressly provides that actions for prenatal injuries are not tolled during the plaintiff’s minority. Plaintiff appeals from the entry of summary judgment in favor of Sony, contending the correct statute of limitations applicable to her claims is section 340.8, under which her action would be timely.

We conclude section 340.4 governs plaintiff’s claims and that her action is time-barred."

You can't get much clearer than that.

Justice Rubin dissents.  Given that it's a split opinion, and involves whether a child who was born with "fusion of her cervical vertebrae, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney" can sue her alleged tortfeasor, you'd think that there would be at least a non-zero chance that the California Supreme Court would grant review.

But then there's the final sentence of Justice Grime's introduction:  "In so holding, we depart from our colleagues in the Sixth District who concluded that section 340.8 supplants the limitations period of section 340.4 for claims based on prenatal injuries caused by exposure to hazardous materials or toxic substances. (See Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522 (Nguyen).)"

Given that fact, the chance that the Supreme Court will review the case goes up.  Way up.  Indeed, in my view, to approximately 100 percent.

As it should.  Whether, and when, a child should be able to sue for birth defects shouldn't depend on what panel s/he happens to draw on appeal.

The California Supreme Court should review this case.

Thursday, May 12, 2016

In Re Rafael C. (Cal. Ct. App. - April 21, 2016)

The Court of Appeal could have been satisfied with just saying that the petition for rehearing has been denied.  Instead, it says:

The petition for rehearing is denied. The petition “restates arguments that were raised and considered on appeal.” [Cite] In addition, the petition seeks to raise arguments not included in appellant’s briefs. [Cite] The court notes the petition improperly cites unpublished case law. [Cite]"

Insult to injury.

Wednesday, May 11, 2016

Stetson v. Grissom (9th Cir. - May 11, 2016)

The Ninth Circuit today assigns the case to a different judge on remand, in part because the case has been before the Ninth Circuit three times already, and each time, the district court has been reversed on appeal at least in part.

Can you guess the district court judge?

You're right.  Judge Real.

Tuesday, May 10, 2016

Center for Biological Diversity v. Cadiz (Cal. Ct. App. - May 10, 2016)

How do you save water in the Mojave Desert?  Answer:  You pump more of it from the ground and send it to thirsty consumers in Los Angeles and other Southern California cities.

At least according to the Court of Appeal, which affirms the dismissal of various lawsuits to "[a] proposed project to pump fresh groundwater from an underground aquifer located below real property owned by Cadiz, Inc. (Cadiz), in the Mojave Desert (the Project) . . . . [in order to] prevent waste of the water in the aquifer, and to ultimately transport the water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties."

I understand the theory.  But the concept that you've got to pump more water in order to save it couldn't help but remind me of a bygone, related idea:  That we similarly "had to destroy the village in order to save it."

Monday, May 09, 2016

People v. Wade (Cal. Supreme Ct. - May 9, 2016)

Last year, I said:  "The California Supreme Court should grant review of this opinion.  I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable."

The California Supreme Court was apparently of the same view.  It indeed granted review.  And today, it resolved the conflict.

Unanimously, even.  "Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? We conclude the answer is yes."

That answer made me smile, for admittedly idiosyncratic reasons.  It Reaffirmed the one legal story that my father told me -- time and time again -- as I was growing up (and to which I referred last year).  He would always say that, in Virginia, it counts as having a firearm "on your person" when it's in a backpack (or in a pocket) due to an old case that held that a firearm was "on your person" when it was in your saddlebag.  He always got a chuckle about the use of that precedent.

Backpacks:  The modern day saddlebag.

(Which I guess makes us the horse.)

People v. Landau (Cal. Ct. App. - April 20, 2016)

There's a lot in this lengthy opinion about Confrontation Clause issues, the SVP statute, and a wide variety of other interesting things.  A reader could learn a lot from it.  Wholly beyond the issue of whether the elderly Mr. Landau, who's a pedophile, should now be released because his age and other circumstances (including his prostate surgery) means he's currently unlikely to reoffend.

(To give you a sense of Mr. Landau's age, the factual recitation in the opinion begins by saying "Sid S. (Sid) met appellant in 1969, when Sid was eight years old and went to a Boys’ Club basketball game where appellant was the score keeper. Shortly thereafter, appellant . . . took Sid to a drive-in theater to see “101 Dalmatians.”)

I'll only specifically mention a couple of very brief, non-doctrinal, factual statements that I found of particular interest:

(1)  "[Dr. Park] Dietz said pedophilia is a lifelong condition and its onset usually occurs when the individual (usually a male) is eight to 12 years old."  Wow.  I didn't know it started that early.

(2)  "Dr. Park Dietz, a forensic psychiatrist, was retained by the district attorney and was paid approximately $90,000 at the rate of $600 an hour."  Wow.  That's a lot of money.

Friday, May 06, 2016

Rishor v. Furguson (9th Cir. - May 6, 2016)

I often like reading the specific Faretta admonitions that district courts give to criminal defendants who ask to represent themselves at trial.  They're typically spot on, and really do try to convince the defendant that it's an incredibly bad idea to ditch an attorney.

The trial court here did that in spades.  Here's what the judge said:

"THE COURT: [I]n my 30 years of being on both sides of the courtroom as a defense counsel, prosecutor and now 12 years as a judge in a criminal case I have never seen anybody who has ever represented themselves competently; do you understand that?


THE COURT: If you represent yourself incompetently you’re stuck with you and you suffer the consequences. The consequences if convicted, the State informs me, is a sentence of life without possibility of parole.

THE DEFENDANT: Yes, sir. I fully understand that.

THE COURT: And that as a practical matter if you represent yourself—and this is just me talking up here.


THE COURT: As a practical matter the court might as well sign an order sending you to prison without possibility of parole right now because you’re going to screw your case up; do you understand that?"

Well now.  Tell us what you really think, Your Honor.

Despite those warnings, the defendant represented himself.  And, predictably . . . .

Was acquitted.

Wait.  What?!

Okay, so he wasn't totally acquitted.   The jury acquitted him on the two charged counts of second degree assault (counts 2 and 3), convicted him on the charge of unlawful possession of a firearm (count 4), and impliedly acquitted him on the greater charge of first degree assault (count 1) by convicting him of the lesser-included offense of second degree assault.  As a result of these wins, the trial court did not, in fact, "sign an order sending you to prison without possibility of parole right now," but instead sentenced him to 115 months in prison.

No small sentence, to be sure.  But nothing near LWOP.

Rarely do you see good things come to a person who represents himself.  And, perhaps, an actual attorney could have done even better.

Still.  Something unusual.  In that the defendant's decision to represent himself here was not an unmitigated disaster.

U.S. v. Lee (9th Cir. - May 6, 2016)

Judge Ikuta has a message for her colleagues on the Ninth Circuit.  She writes, in dissent:

"The Ninth Circuit has a knack for disregarding the Supreme Court. Sometimes it simply ignores the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011) (“[J]udicial disregard [for the Supreme Court’s habeas jurisprudence] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”). Other times it reads the decisions of the Supreme Court in such a peculiar manner that no “fair-minded jurist” could agree. See Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded jurist could think that [the Supreme Court case at issue] clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution.”). Occasionally it even thinks it is the Supreme Court. See Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth Circuit for granting habeas relief based on its own precedent, where AEDPA requires that a state court decision violate clearly established federal law as established by the Supreme Court, “not by the courts of appeals”). But this is the first time I’ve seen the Ninth Circuit decide a criminal defendant’s direct appeal based on law that the Supreme Court has just overruled without even considering whether the new rule applies."

Thursday, May 05, 2016

People v. Mohamed (Cal. Ct. App. - May 3, 2016)

From this opinion:

"In 2010, appellant was a board certified gynecologist who practiced cosmetic surgery out of his Encino office. Appellant relied on 'cutting edge' technology in his practice and used a medical instrument called a “VASER” liposuction machine in his liposuction procedures. The VASER liposuction performed by appellant involves a three-step process: first, a solution of saline, epinephrine (a blood vessel constrictor), and lidocaine (a local anesthetic) is injected or “infiltrated” under the skin; next, a titanium probe is inserted under the skin to deliver ultrasound energy through the VASER amplifier to loosen the fat cells; and finally, the injected solution along with the loosened fat cells are sucked out, or 'aspirated' from the body, resulting in a liquid aspirate consisting of infiltrated solution, blood, and fat."

Okay.  That doesn't sound so bad.  Personally, I'm not down for it.  But I get that other people might be.

"Appellant performed his liposuction procedures in a room in his medical office, which was not an accredited surgical center. The office lacked an electrocardiogram (EKG) machine, pulse oximeter, backup oxygen, a backup power supply, and a 'crash cart,' and had only a limited supply of drugs to reverse the effects of narcotics. Appellant did not employ any certified advanced cardiac life support personnel, nor did he have an anesthesiologist or a nurse anesthetist to handle sedation during his surgeries. On occasion, appellant’s office assistant, Judy Evans, assisted him in his procedures. Hired in 2001, Evans did everything in the office from performing general office work to assisting in appellant’s surgeries and procedures. Evans received lip and facial injections from appellant at cost. She had attended one year of nursing school about 40 years earlier, but was not licensed as a nurse. As of 2011 she had not taken a CPR class in eight years."

Oh.  That doesn't sound good.  I have a sense this isn't going to turn out so well.  A sense that's only highlighted by the fact that this case is entitled People v. Mohamed.

"Zackie Handy went to see appellant in May 2010 about a treatment to reduce the wrinkles on her face. She was 77 years old. Appellant convinced her to undergo liposuction to remove fat from her abdomen, back, under her arms, and her legs, claiming the treatment was 'tax deductible' and would reduce the risk of heart attack and Alzheimer’s, lower her cholesterol 'by a lot,' and add 20 years to her life. He assured her she would have 'no downtime.' Appellant also told Handy she would be part of a 'Harvard study' and would receive a substantial discount. Handy agreed to the liposuction procedure on her abdomen, and paid appellant with a $55,000 cashier’s check from her equity line. She subsequently gave appellant two more postdated checks totaling $45,000."

Wait.  Elective surgery for $100,000 on a 77-year old?!  Based on these (alleged) representations?!

That's not sounding very good either.  At all.

"When Handy arrived for the procedure on her abdomen, she told 'Nurse Judy' she had taken baby aspirin that day. Evans said that would be fine and gave Handy four Vicodin pills (a combination of acetaminophen and the opioid hydrocodone) and 1.5 milligrams of Xanax (an anti-anxiety drug) to take orally. Handy told appellant not to do anything to her face. Handy fell asleep during the procedure and woke to find her face blotchy and lumpy from fillers appellant had injected into her lip, chin, eyelids, and eyebrows. Appellant told her that he had been forced to stop the liposuction because of excessive bleeding due to the aspirin and had worked on her face instead. . . . During a follow-up appointment, Handy complained about the appearance and pain from the lumps on her face. Appellant gave her a 'free' Botox injection, which she did not want. As a result of the injection, Handy could not close one eye, and she continued to experience pain and headaches from the fillers. Handy canceled further appointments with appellant, stopped payment on the two postdated checks she had given him, and reported him to the California Medical Board."

That's not good.  But it's not even this case.

"On August 17, 2010, Sharon Carpenter consulted with appellant about having 'whole body' liposuction. She was 61 years old. Appellant told her that he performed a unique form of liposuction, and she would receive a discount by being part of a 'Harvard study.' Carpenter was eager to have the procedure and agreed to pay appellant’s $100,000 fee. . . .

Appellant started Carpenter’s liposuction procedure assisted by Evans at 1:10 p.m. by placing 12 skin ports on Carpenter’s body. At 2:30 p.m. appellant began infiltration of approximately 5,000 cc’s of a normal saline solution containing 1 percent lidocaine and one part per million epinephrine. Carpenter received another milligram of Xanax at 2:35 p.m., and appellant started using the VASER at 3:35 p.m. Appellant gave Carpenter oral doses of Percocet (a combination of acetaminophen and the opioid oxycodone) at 4:45 p.m. and again at 7:00 p.m. Carpenter received an injection of Zofran (an anti-nausea medication) at 2:45 p.m. and another after she vomited, about nine hours into the procedure. The fentanyl patch was removed at 10:00 p.m. . . .

At approximately 11:30 p.m. Carpenter refused to take any more fluids, and appeared dehydrated. Appellant twice called Encino Hospital across the street seeking to borrow or purchase IV tubing, normal saline bags, and an 18-gauge cannula. According to the nursing supervisor who spoke with him, his voice sounded urgent. The hospital refused to give appellant any medical supplies.

After calling the hospital, appellant resumed the liposuction. Carpenter became sleepy and appellant assured her the procedure would only be 15 minutes longer. But appellant continued the liposuction for another 30 to 40 minutes, reaching a total of 5,000 cc’s of extracted aspirate. At 12:17 a.m.—11 hours into the procedure—appellant noticed that Carpenter’s breathing was shallow, and she was unresponsive. He also noticed her lips were slightly cyanotic (blue), which meant that she was not getting sufficient oxygen. As appellant began rescue efforts, Evans called 911. At 12:25 a.m. appellant lost Carpenter’s pulse, and appellant and Evans moved her to the floor to perform CPR.

Paramedics arrived at the building at 12:22 a.m., but the door was locked, delaying their entry. When they reached appellant’s medical office on the seventh floor, they found appellant performing CPR, and blood was everywhere. Carpenter had no pulse and was not breathing; the paramedics took over CPR, started epinephrine, and gave her atropine, to no effect. Twenty minutes later Carpenter was pronounced dead. . . .

Dr. Raffi Djabourian, the Senior Deputy Medical Examiner for the Los Angeles County Coroner, conducted an autopsy of Sharon Carpenter on August 23, 2010. Based on toxicology tests on blood and tissue samples, he concluded that the cause of death was opioid toxicity from the lidocaine, fentanyl and oxycodone she had received."

That's involuntary manslaughter.  And it gives you a fair piece of time in prison.

Not to mention a poor reputation in the community.

Wednesday, May 04, 2016

Collins & Teng v. USCIS (9th Cir. - May 4, 2016)

Yu-Ling Teng is a naturalized U.S. citizen.  When she first came to the United States in 1965, on a student visa, she had a Taiwanese passport that listed her date of birth as 1939.  She says that's right.  So, way back then, she got a social security card, consistent with her passport, and all things moved along smoothly.

Fast forward to 1974.  She now applies for a green card, and -- for whatever reason -- submits a declaration from her aunt that says that she was born in 1944.  So that's the date the (then-) INS used for her green card, and thereafter, in 2001, when Ms. Teng becomes a citizen, on her naturalization certificate.

The problem is that the date of birth on Ms. Teng's social security card does not match her date of birth on her naturalization certificate.  Why's that a big deal?  Because in 2004, California refuses to issue her a driver's license, saying that the dates on her two documents don't match.

Ms. Teng tries to fix things with the DMV, but no dice.  She tries valiantly to fix things with the INS, but they say they're powerless.  She tries to change her date with social security, but they too say they can't help her.  She goes to her local assemblywoman, who tells her to file suit in federal court, but the district court says that it also can do nothing.  And, today, the Ninth Circuit affirms.

Regardless of the facts, and regardless of the reality that Ms. Teng -- a U.S. citizen -- should be able to have consistent documents (and drive), no one is willing (or able) to help her.

That's a failure.

By contrast, on the same day, in a different case, the Ninth Circuit grants relief to Olufemi Collins.

Mr. Collins was born in Nigeria.  When he came to the U.S. on a student visa, in 1973, he had a Nigerian passport, and it listed his date of birth as 1952.  So that's the date he used with the INS, and the one in its records.

Mr. Collins says that, in 1991, he discovered his true date of birth in a family bible.  But he didn't do anything for a couple of decades.

But then, in 2011, Mr. Collins asks the INS to change his birth date of 1952 to his "true" birth date of 1948.  Why?  Because Mr. Collins wants social security benefits.

The (now-) USCIS says it's powerless to help him.  Just as it said to Ms. Teng.  So Mr. Collins files suit.  Just as Ms. Teng did.  The district court denied relief, just as the same district court judge did with Ms. Teng.

I understand the distinction that the panel (Judges Kleinfeld, McKeown, and Ikuta) draws between the two cases.  Judge McKeown says that one certificate was issued by a court prior to 1991, whereas the other was issued by the Attorney General after the Immigration Act of 1990.  That, the Ninth Circuit holds, makes a jurisdictional difference.

Jurisdictional, perhaps.  Equitable, no.

There's absolutely no reason that Mr. Collins should get relief but not Ms. Teng.  It ain't right.

Something should change.  The law.  Its application.  Something.

Tuesday, May 03, 2016

Hearn Pacific Corp. v. Second Generation Roofing Inc. (Cal. Ct. App. - May 2, 2016)

The Court of Appeal's published opinion does not mention the appellate attorney's name.  (For which that lawyer is undoubtedly incredibly thankful.)  Moreover, the list of counsel on appeal includes three different lawyers for the respondent; though the docket contains only one of them, Oakland attorney Jeffery Alan Chadic.

Here's a snippet of what Justice Stewart's opinion says about counsel for the respondent.  Suffice it to say:  the Court of Appeal was not pleased:

"For [Respondent] Hearn to turn around now and argue the opposite -- that 'Hearn remained the only party asserting its claims' and that section 368.5 does not apply -- without so much as even a nod to what it said in its pleadings, is baffling. There are limits to appellate advocacy, chief among them a duty of candor to the court. (Rules Prof. Conduct, rule 5-200.) It may be Hearn has some explanation for its change of tune, but the explanation is not to be found in the 32 pages of briefing Hearn has filed on appeal, nor did it surface in any way at oral argument. Responsible (not to mention, effective) appellate advocacy requires confronting serious potential obstacles, not burying one’s head in the sand to them, be they potentially controlling adverse authorities or problematic portions of the record. As has been said by the federal circuit that is home to Chicago’s Lincoln Park Zoo: 'The ostrich is a noble animal, but not a proper model for an appellate advocate.' (GonzalezServin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934 [Posner, J.].)"

There's lots more in the opinion as well.  The last real shot the Court of Appeal gets in on counsel for respondent is fairly typical of what you see throughout the thing; e.g., "For the first time on appeal, Hearn also contends in scattershot fashion the 'purported' assignment was invalid on a number of grounds. The position borders on frivolous, and also rests in large part on repeated violations of the rules of appellate briefing."  Yikes.

Sometimes you lose.  Sometimes you lose really, really big.

And the Court of Appeal doesn't even bother to hide -- indeed, goes out of its way to express -- its displeasure with you.

Sanford v. Rasnick (Cal. Ct. App. - April 25, 2016)

Here's a practical suggestion from the Court of Appeal.

No.  Make that a command.

When you make a CCP 998 settlement offer, you can (obviously) include a specific dollar figure that you'll accept (or pay), but you can't include the condition that the party execute "a written settlement agreement and general release."

The Court of Appeal holds that such a condition makes the offer too indefinite.  We don't know what exactly would be in the (unspecified) settlement agreement.  And we don't to resolve fights about what is "normally" in such an agreement or what is atypical.

So if you make such an offer, and the other side rejects it, you're not entitled to your costs. Even if you do better at trial than your 998 offer.

So leave that stuff out.

Monday, May 02, 2016

Osborne v. Todd Farm Service (Cal. Ct. App. - May 2, 2016)

One of the downsides of having the trial attorney serve as the attorney on appeal is that the trial attorney may not have a neutral perspective about the case.  There are definitely upsides, to be sure; efficiency, superior knowledge of the record, etc.  But downsides abound as well.

Especially when, as here, the appeal concerns whether the lawsuit was properly dismissed based on the misconduct of trial counsel.

Appellant's counsel is Glen Murphy, and the trial court repeatedly admonished counsel for plaintiff -- "Mr. Murphy" -- not to mention certain matters governed by a motion in limine.  When Mr. Murphy nonetheless repeatedly did so, the trial court dismissed the lawsuit.  With prejudice.

The Court of Appeal affirms.

The old aphorism is that an attorney who represents himself has a fool for a client.  One might on occasion perhaps say analogous things about counsel on appeal.

Sometimes a neutral, outside perspective is worth it.

Thursday, April 28, 2016

U.S. v. Adebimpe (9th Cir. - April 28, 2016)

Woo-hoo!  The Ninth Circuit has published nothing for nearly a week.  Nothing last Friday.  Nothing on Monday and Tuesday.  A brief order yesterday that simply took a case en banc.  (To Judge Kozinski's likely chagrin.)

It's been slim pickings.

But today, there's finally a published opinion.  And even a dissent!

Only one opinion, mind you.  But one is better than none.  (At least in this context.)

It's a fairly straightforward case.  Perhaps a difficult one, to be sure:  there's even a circuit split on the issue.  But straightforward nonetheless.

Here's Judge Murguia's perspective:

"Patrick Sogbein ran a conspiracy to defraud Medicare by providing power wheelchairs to people who did not need them. Sogbein’s wife, Adebola Adebimpe, participated in the conspiracy by supplying many of the wheelchairs through a medical equipment company that she owned. Sogbein and Adebimpe challenge the district court’s application of a twolevel upward adjustment under section 3B1.3 of the Sentencing Guidelines, after finding the defendants abused a position of trust with respect to Medicare. We hold that medical equipment suppliers can have the requisite 'professional or managerial discretion' for the abuse-of-trust adjustment to apply, if they are responsible for determining the need for the equipment they provide and personally certify the validity of their claims to Medicare."

By contrast, here's Judge Paez's take:

"In my view, DME suppliers do not exercise substantial professional or managerial discretion within Medicare’s reimbursement scheme because Medicare’s rules and regulations confine them to a ministerial role and leave all critical determinations of medical need to the beneficiary’s physician."

Judge Murguia gets Judge Hurwitz's vote, so her take is now the law of the Ninth Circuit.

Some published law.  An innovation.  At least for the Ninth Circuit during the past week.

Wednesday, April 27, 2016

Abuemeira v. Stephens (Cal. Ct. App. - April 27, 2016)

Today's apparently Rich People's Lawsuit Day in the California Court of Appeal.

Defendants and plaintiff are neighbors in a gated community in Bell Canyon.  Here are the things to which everyone agrees:  Defendants are driving a car, plaintiff is driving a motorcycle, all inside the gated community, and the parties get into a tiff.  A big tiff.

The rest of the facts are told from very different perspectives.  Here's the defendants' version:

"[Defendants Stephens and Ekmekdjian] saw Yasser speeding on his motorcycle and followed him to obtain his license-plate number. Yasser stopped the motorcycle and gestured for them to approach. Yasser then 'lunged' at Ekmekdjian who 'shoved' Yasser in response. '[I]n rage,' Yasser called the two men 'faggots' and 'cocksuckers.' Yasser then 'jumped' Stephens, struck him, and demanded that he cease recording the incident. When Ekmekdjian intervened, Yasser struck him too. Eventually, a passerby separated the combatants."  Further, "Stephens and Ekmekdjian characterized the roadside skirmish as 'a hate crime against a homosexual couple.' . . . Stephens and Ekmekdjian displayed the video-recording to family, friends, law enforcement, and news agencies, and created an on-line petition demanding that the California Attorney General investigate the incident."

Oooh.  That sounds bad.

But here's the plaintiff's version.  That sounds bad as well:

"[Plaintiff] stated that he gestured for Stephens and Ekmekdjian to drive past him, but instead, they forced him off the roadway and blocked his passage. When Stephens left his vehicle, he began filming the encounter with his cellular telephone. He'"forced [the] phone into [Yasser's] face,' and stated, 'Say hello to the world.' Stephens and Ekmekdjian yelled and made accusations and then Ekmekdjian shoved Yasser. Stephens later filmed Daria and the two children, despite Yasser's pleas not to do so. Stephens stated: 'I can do whatever the fuck I want. . . .' A physical altercation then ensued. During the fight, Stephens and Ekmekdjian referred to Daria as a 'bitch,' and a 'cunt,' and to Yasser as a 'nigger' and an 'animal.' They also suggested or implied that Yasser was 'a terrorist.' Yasser was thrown to the ground and punched and kicked in the head. Daria and her infant received some bruises and scratches when they attempted to rescue Yasser."


You can also see from these factual recitations why Justice Gilbert drops an amusing, but informative, footnote at the beginning of the opinion that says:  "Unfortunately, this opinion contains an abundance of obscene language. Reader discretion advised; unsuitable for precocious children of reading age."

Ditto for this blog.  (Though too late now.)

One last thing.  I left one part out of the plaintiff's version of events.  Where the ellipsis is in the above quote.  Right after Stephens (allegedly) says "I can do whatever the fuck I want," the last part of that sentence is ". . . I'm a super lawyer -- do something about it."

Yep.  That's right.  Mr. Stephens is an attorney.  A partner at Sedgwick.

Loses this anti-SLAPP appeal, though.  As he did in the trial court.

Boxer v. City of [Redacted] (Cal. Ct. App. - April 26, 2016)

The City plants 31 very pretty redwood trees in a local park.  Some homeowners in the area are not happy, however.  Because when those trees grow, they'll partially block the existing views of the City (and some other pretty things) from those homes.  So the homeowners sue, claiming that their land has been "taken" by the City and demanding just compensation for their diminished views.

Can you guess where the homeowners live?

If you guessed "Beverly Hills" -- even after I omitted the name of the defendant in the caption -- give yourself a pat on the back.  Exactly right.

The plaintiffs in this case live on Spalding Drive in Beverly Hills.  Pretty near Beverly Hills High School  Nice place.  There's a nice two bedroom, two and a half bath home on that street.  Will only set you back around four million.

Tough life.

Sadly, for the homeowners, it got a bit tougher.  The Court of Appeal affirms the dismissal of their lawsuit.

They'll have to settle for a partially obstructed view.

Tuesday, April 26, 2016

People v. McGehee (Cal. Ct. App. - April 26, 2016)

Here's a neat little hypothetical that you might discuss in a class on criminal law.  Except for Mr. McGehee, it's not a hypothetical, but instead, his actual life.

Mr. McGehee stabs something ten times with a kitchen knife, killing it.

(A) If the thing he killed was a deer, then he's not guilty of any crime.  (Assuming that there's no animal cruelty, out-of-season hunting, etc.)

(B) If the thing he killed was a person, but he thought that it was a deer when he killed it, then we all agree he's not guilty of murder.  Maybe he's guilty of some lesser crimes, depending on his precise mental state and reasonableness of his belief that it was a deer.  But not murder.

(C) If the thing he killed was a person, and he knew it was a person, then he's generally guilty of murder.  Maybe he's insane -- that's the second phase of the trial.  But murder at the first phase.

Now for the hard question.  The one raised squarely in this case:

(D)  What if the thing he killed was a person, but he thought it was a demon?

Demon = Deer = Manslaughter?  Or Demon = Person = Murder?

Everyone concedes that his belief that the thing -- in this case, his mother -- was a demon is relevant to the sanity phase.  But what about the first phase?  If you think that a demon is a non-person, so is more like a deer, then his belief that he was killing a demon is relevant to whether he had the intent to kill a person.  Since demons aren't persons.  So it's relevant to the first phase of the trial.

But if you think that demons are more like people than deer, then his belief that it was a demon that he was killing isn't relevant to the first phase, so he's not entitled to an instruction on manslaughter; e.g., a crime that doesn't involve the premeditated killing of a person.

The Court of Appeal holds today that a demon is more like a person than a deer.  So no instruction on manslaughter.

Justice Hoch's opinion never uses the deer analogy.  That's my addition.  But the opinion nonetheless concludes the same way.  Holding:  "[D]efendant argues he was entitled to involuntary manslaughter instructions because substantial evidence supported the view he hallucinated an attack by a demon, and therefore did not intend to kill a human being, but instead intended to kill a demon. This too is quintessentially a claim of insanity. Its rationale is that because of defendant‟s mental illness, he was unable to understand the nature and quality of the criminal act, i.e., he was killing a human being rather than a demon. Such a claim may be made, but must be made during the sanity phase of the trial."

I wonder whether Justice Hoch would say the same thing if Mr. McGehee's mental illness made him think he was stabbing a deer.

Regardless:  That's today's holding.

Monday, April 25, 2016

In Re H.R. (Cal. Ct. App. - March 25, 2016)

"In November 2014, the Los Angeles County Department of Children and Family Services (DCFS) removed H.R. and his half sister J.R. from the home of mother, L.R. DCFS acted based on allegations of domestic violence between mother and her companion, Alejandro F., physical abuse of J.R. by mother, domestic violence between Alejandro F. and the children's maternal grandfather, alcohol abuse by mother, and mother's leaving the children home alone for extended periods of time. H.R. was four years old at the time of removal.

Mother declined to give DCFS any information about father when interviewed by DCFS for the detention report, including his name, birth date, address, telephone number, or any other identifying information. She said father had not been involved with H.R. since his birth. She told the social worker 'to find out [about him] without her help.'"

Very cooperative.  Thanks for that.

They end up finding Father in Arkansas.  Just as he's about to be deported to El Salvador.

Thursday, April 21, 2016

Estate of Barton v. ADT Security Svcs. Pension Plan (9th Cir. - April 21, 2016)

Good for you, Judges Owens (who writes today's opinion) and Kozinski.  Good for you.

This is the type of opinion that Judge Ikuta -- who claims that her colleagues have gone "off the rails" -- hates.  By contrast, it's the type of equitable, common sense, and undeniably fair opinion that people like me love.

Competing styles, to be sure.

But I think it's awesome.  Exactly right.  The type of judges I like to see on the bench.

Well done.

People v. Jimenez (Cal. Ct. App. - April 19, 2016)

Justice Robie begins this opinion by saying:  "What people say behind your back is your standing in the community in which you live."  I totally agree.

His next sentence:  "On the other hand, what people do not say about you may also shed light on your reputation in the community and, in turn, your character."  Hmmm.  I'm not entirely sure I completely understand where he's going with this thought, but, yeah, I guess that's somewhat true as well.  For example, if people never really say about you that you're especially generous, then, yeah, it's likely true that you're not all that generous.  Maybe not a miser or anything; if, at the same time, they don't say you're tightfisted, that probably in turn means you're not that either.  So what they don't say about you is indicative of something as well.  I agree with that too.

Justice Robie's next sentence:  "That is the principle behind an optional part of CALCRIM No. 105 -- the standard instruction on witness credibility -- which informs the jury that '[i]f the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.' (CALCRIM No. 105.)"

I've never really thought about CALCRIM No. 105 before.  But upon reading it now, it seems to me that it's an instruction that's somewhat weird.  If not entirely wrong.

But that's the exact opposite intuition that Justice Robie has.  He's entirely fine with CALCRIM No. 105, but the more I think about it, the more that instruction seems -- at best -- entirely unhelpful, and at worst flatly wrong.

Look, if people around you are constantly talking about how trustworthy you are, then I agree that's a fair piece of evidence that you're incredibly trustworthy.  Conversely, if they're constantly saying what a huge liar you are, then that's what you probably are.

But if they're not talking about either of those two things, to me, that's a fact that strongly suggests that you're neither of these things -- neither incredibly trustworthy nor an incredible liar.  You're just normal.  Middle of the road.  A regular person.  Probably you tell the truth on most things.  But on some things, maybe you think it's okay to fudge things a little bit, or even (on occasion) to advance an outright lie.  Maybe for good reasons, maybe not.  You're a normal, regular person.  In essence, if the community has no reason/need to comment on your truthfulness, that's strong evidence that you're at the default level of truthfulness.  Average.  Your normal person.

Yet CALCRIM No. 105 seems to say something else entirely.  It expressly says that if people don't talk about your character for truthfulness, your character for truthfulness is "good".

"Good"?  Nope.  Not to me.  I'd think that your character for truthfulness is "normal".  Average.  Not "good".  Nothing special either way.

"Good" is not the same as "average".  Not even in the everyone-gets-a-trophy America.  If you tell me that someone has a "good" character for truthfulness, that word -- "good" -- tells me that they have an above-average character for truthfulness.  Above average.  That's what "good" means.  Moreover, at an absolute minimum, the very fact that you're bothering to tell me that their character for truthfulness is good, rather than the default level, is to indicate that there's something different about their character from the default level of truthfulness.  That's CALCRIM No. 105.

Yet the truth in the exact opposite.  If no one talks about their character for truthfulness, that means that character is the default level.  Normal.  Average.  Typical.  Unexceptional.

Neither good nor bad.

The exact opposite of "good" under CALCRIM No. 105.

Now, maybe juries don't pay attention to CALCRIM No. 105 anyway.  I certainly wouldn't.  But that's hardly a defense of the instruction.

I'd just delete the thing.  Apparently lawyers routinely ask witnesses, as the prosecutor did here, whether anyone talks one way or the other about the truthfulness of a particular person, and when the witness responds "No" -- that no one ever really says anything about whether that person is a liar or not -- the judge then instructs the jury under CALCRIM No. 105 that this testimony means that that person's character for truthfulness is good.

That just seems flatly wrong to me.  Silence doesn't mean good.  If I'm going on a blind date, and I ask someone who knows the person "Does anyone ever talk one way or another about her character for physical prowess in sports?" and he responds "No," no one in the universe would think that this response suggests that the date is "good" in sports.  Sure, it may suggests that she's not known to be especially bad at sports.  But it's no evidence at all that she's good at them.

Ditto for truthfulness.

I didn't have a real impression about CALCRIM No. 105 before reading this opinion, in which Justice Robie says that the instruction accurately reflects our intuition.  But I have a definite impression now.

And it's the opposite of Justice Robie's.

I'd delete the thing.  At best, irrelevant.  Most likely, wrong.  And harmful.

Wednesday, April 20, 2016

People v. Reid (Cal. Ct. App. - April 20, 2016)

"Defendant Marc Lynds Reid II challenges his multiple felony convictions arising from his theft of nine metal urns containing the cremated remains of 11 people."

Dude!!  Who steals cremated remains?!  What the hell?!  Why would anyone even do that?!

"[D]efendant entered a semi-open mausoleum building at the Evergreen Funeral Home at Memorial Park in Merced. He broke into nine urn niches located in one of the mausoleum walls by smashing the glass panes enclosing each niche. Defendant then removed nine metal urns, each weighing approximately 25 pounds and collectively containing the cremated remains of 11 people. . . . The urns were later broken down into scrap metal for recycling and the cremated remains of the 11 deceased were discarded."

Recycling?!  Wow.  I'd much prefer you steal manhole covers, thank you very much.  Let's leave human remains alone, please.

For his offense, Mr. Reid gets charged with a plethora of crimes; basically, any statute that might arguably apply.  And gets sentenced to . . . 24 years, 8 months in prison.

That's a lot of time.

In Re Mia Z. (Cal. Ct. App. - April 20, 2016)

"At some point during the day on May 12, 2014, [a three-year old child named] Destiny walked away from Mother’s apartment and ended up about 120 feet away, in a well-trafficked alley fronting a commercial parking lot. While Destiny was standing in the alley, a heavy metal rolling gate at the access to the parking lot fell off its track and landed on Destiny, striking her in the head. Paramedics responded to the scene and transported Destiny to a local hospital, but doctors could not save her. Destiny was pronounced dead in the mid-afternoon. . . .

Destiny’s accident occurred in an alley in front of a commercial parking lot that was 'very far' from Mother’s residence. Further, Detective Martinez reported that video surveillance showed Destiny and two boys in the parking lot for several minutes before the accident. The boys began pushing and pulling on a black metal gate, and, while Destiny was out of the camera’s view, the gate fell over into the alley where she was apparently standing. Beyond the details of the accident with the gate, the detective reported that the alley where Destiny had been playing was a high traffic area through which cars traveled at a high rate of speed. Detective Martinez stated that she was aware of a child neglect report involving the family in mid-September 2013 for leaving children unsupervised. Detective Martinez stated that it was her belief that Mother had a history of leaving her children unsupervised. . . .

The social worker then went to Father’s address where a tenant in his building (who wished to remain anonymous) reported that Mother, Destiny and Mia had moved out about a month earlier. The tenant had known the family for many years. He said there had always been concerns about the parents’ lack of supervision of their children. The tenant explained that on a daily basis the children were observed by various tenants to be on the apartment balcony, in the hallways, on the sidewalk, or in the lobby alone and unsupervised. This typically occurred during daytime hours when Father was at work and Mother was home with Destiny and Mia. The tenant said he had talked to the parents about the lack of supervision on more than one occasion. Mother would say things to the effect that she did not know how the children got out of her eyesight. The social worker learned that the building had several video cameras, and was shown a video taken in September 2013, when Mia and Destiny left the family apartment, went down the stairs, and exited through the lobby out onto the street. The tenant said he had several videos depicting the children wandering around the building unsupervised. When asked why he kept the videos, the tenant answered that he had almost hit Destiny with his car once when she 'darted into the street.' According to the tenant: 'Her parents didn’t know where she was or what had happened. But that was always the case. There were several times where the girls [were] in a situation where something tragic could have happened because their parents did not care.' . . .

An anonymous reporter told DCFS that Destiny and Mia regularly would leave the apartment and go to the balcony, hallways, and the outside of the apartment building, and were often observed running around the building without supervision, diapers, or clothes. According to the reporter, a number of tenants had acted to protect the children when they were outdoors alone, and had confronted Mother about her lack of supervision.

Martin B., the parents’ landlord, told DCFS that he often saw Destiny and Mia wandering around without supervision. He said Mother usually left her door open when the children were playing outside, but 'the supervision was not there.' He also said there were 'many times' when he told Mother that both girls had gone into the apartment of a single male. Martin B. said that many tenants had brought to his attention the fact that the children were not being supervised. When asked how many times he saw that the children were not being supervised, Martin B. replied, 'at least 20 times.' He added that he once found the children on the fire escape stairs, which was extremely dangerous because the family lived on the third floor.

Tony B., who managed the family’s apartment building until 2012, told DCFS he noticed the parents were not adequately supervising the children, which he brought to Mother’s attention two or three times. He often saw Destiny at the top of the third floor staircase while mother was inside cooking with the door open. Tony B. described one incident where Destiny and Mia made it all the way to the emergency exit of the building, which had a large hole to the first floor. He took the children back to Mother’s apartment and explained the risk that the girls could fall into the hole.

During the parents’ further interviews, Mother denied ever placing the children at any risk, and claimed she was providing adequate care. She said that many of the children in the apartment complex played outside and other parents would supervise her children. Father said he and Mother had come to believe that Destiny’s death was her 'destiny,' and added that accidents can 'happen in a breeze and there are accidents that can’t be prevented.'"

Usually, when you've got facts like these, the parents have an underlying drug problem.  But that does not seem to be the case here (or at least there's no evidence of it).  The facts are what they are.  And they are distressing indeed.  Not only for the now-deceased three year old, but for her siblings as well, who are now four and one years old.


Tuesday, April 19, 2016

People v. Lucero (Cal. Ct. App. - April 19, 2016)

From this afternoon's opinion:

"Ahmed Silmi frequently kept cash deposits from his businesses in the trunk of his Mercedes. . . ."

That doesn't seem wise.  Doesn't seem wise at all.

". . . . Approximately thirty minutes later, Lucero, whom Silmi had known for a few weeks, arrived at the barbershop. The three men smoked methamphetamine together. . . ."

I can already tell:  This is not going to end well.

"Silmi had $18,228 in cash and 44 cellular phones in the Mercedes. . . .  Lucero pointed a gun at Silveira and told him to open the trunk of the car. When Silveira attempted to drive away, Lucero shot him several times. . . . Authorities found Silveira in the driver's seat of the vehicle that had crashed into the house. Silveira suffered a total of six gunshot wounds, all to his upper body and head. Silveira died from the gunshots."

Yep.  Did not end well.  For anyone.

Monday, April 18, 2016

People v. Dunley (Cal. Ct. App. - April 18, 2016)

"Appellant displayed a belief that he was God or 'God’s son in the flesh,' and reported hallucinations and hearing voices, which sometimes commanded him to be aggressive."

Whenever I hear of anyone who thinks he's the messiah -- and/or higher up in the organization -- I need to remind myself that it's always possible that he's right.  At the same time, my reaction to such a claim is the same one that I have to solipsism.  Sure, if you start thinking that you might be God, or the only actual person in the universe, it's certainly possible that you're right.  But statistically, doesn't it seem like you're more likely than not wrong?

I mean, there are lots of other (alleged) minds in the world.  What's so special about you?

Other than, of course, that it's you.

Friday, April 15, 2016

DP Pham LLC v. Cheadle (Cal. Ct. App. - April 15, 2016)

You've got some documents from a witness.  You're looking at them.  The documents themselves reveal that they're not privileged and/or that a statutory exception applies to the privilege.  So you use them, since you know for certain that they're not, in fact, privileged.

But the other side keeps screaming at you that these documents are privileged.  And they file a motion.  Both to get back the documents and to disqualify you for using privileged documents.

No big deal, right?  You know they're not privileged.  So you attach the purportedly (but not) privileged documents, which are in your possession anyway, to your opposition, confident that you'll prevail.

Sorry.  The Court of Appeal holds that the trial court isn't permitted to look at the documents to see if they are, in fact, privileged.  Even if they're already in your possession.  Even if the trial court has not ordered their production (which would, indeed, violate the Evidence Code).  And unless you can prove that the documents are privileged without talking about what's in the document, you lose.

Oh, yeah.  And you might be disqualified.

So holds the Court of Appeal.

Thursday, April 14, 2016

Vergara v. California (Cal. Ct. App. - April 14, 2016)

You know something's up when the first five pages of an opinion are devoted to listed the various counsel and -- especially -- amici in a case.  It's a high-profile opinion.

As indeed it is.  The Court of Appeal reverses the trial court's ruling that the system of teacher tenure in California violates the Equal Protection Clause.

No dissent.  Unanimous.

So the status quo remains.  For now, at least, teacher tenure in California is intact.

At least in the judiciary.

In Re Marilyn Scheer (9th Cir. - April 14, 2016)

Judge Owens gets colloquial in today's opinion.  It's definitely one worth reading.  Even wholly apart from the cultural references.

It involves a situation every one of us hopes we'll never encounter personally.  Marilyn Scheer is a California attorney.  She does some home modification work, charges an illegal up-front fee, and then loses a State Bar arbitration proceeding against her filed by a client.  She makes a couple of payments on the award but then stops.  The State Bar gets miffed, involuntarily enrolls her as inactive, and tells her that she can't get her license back until she pays back the client and asks to be reinstated.

A fairly common occurrence.

Sheer responds by filing bankruptcy.  Once she obtains her discharge, she then orders the State Bar to give her license back, saying that restitutionary obligation under the Bar's order was now gone.  The Bar refuses to reinstate her, and Scheer sues the Bar.

Scheer's basic argument is that she's entitled to her license because  11 U.S.C. § 525(a) says you can't revoke or refuse to renew a license solely because an individual has not paid a debt discharged in bankruptcy.  But both the bankruptcy court and the district court say that her obligation to repay the client pursuant to the State Bar's order wasn't dischargeable, since Section 523(a)(7) says that you don't get a discharge if a debt "is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”

The Ninth Circuit, however, reverses.

Judge Owen's opinion in this regard is exactly right on one point.  If you look solely at the words of the statute, it's hard to see how Scheer's debt falls under Section 523(a)(7).  It doesn't seem like it's a fine payable to a governmental unit -- it's payable to the client -- and it seems like it's compensation for an actual loss; i.e., the illegal fees that the client previously paid to Scheer.  How could anyone go the other way?

Like I said:  I agree.  But here's the thing.  There's actual precedent about this.  And the precedent is pretty darn bad for Scheer.  There's this case called Kelly v. Robinson.  From a little tribunal called the Supreme Court.  That case is very much like the present one.  Kelly involved a restitution order entered in a criminal case.  There, like here, the money would go to a particular damaged party, and there, like here, the amount of the restitution was based on the actual damages that person suffered.  So if you look solely at the words of Section 523(a)(7), it doesn't look like that exception would apply, and the restitution order in Kelly would be discharged.

But the Supreme Court said otherwise.  It's a restitution order.  Entered at the request of the government.  Hence it's not subject to discharge.  So holds the Supreme Court.

Well now.

Judge Owens has a response.  This is what he says about that decision:  "The Court’s approach in Kelly -- to untether statutory interpretation from the statutory language -- has gone the way of NutraSweet and other relics of the 1980s."

Okay, I love the cultural reference.  Now, I'm not quite sure that the underlying factual predicate is what Judge Owens thinks it is, since NutraSweet actually continues to be used in literally thousands of products to the present day.  But I get what Judge Owens is saying.  The kind of analysis displayed in Kelly is as dead as a product that we know used to exist back but then don't think exists now.

Wholly beyond the whole NutraSweet thing, however, there are two big problems with Judge Owen's attempt to avoid Kelly.  One:  It's the Supreme Court.  Last I checked, the Ninth Circuit didn't have the ability to overrule Supreme Court precedent that it didn't like merely on the grounds that it was "outdated".  The Supreme Court says that Kelly remains good law.  So we've got to follow it.  Warts and all.

Second, yeah, I get it, Kelly displays a type of statutory interpretation that not every member of the current Court gets excited about these days.  But lots of members of the Court are, in fact, on board.  Plus, it's not like Kelly is some 5-4 relic of a bygone era.  It was a 7-2.  Oh, yeah.  And guess who was part of the 7-2?  Justice O'Connor.  Chief Justice Rehnquist.  Even Justice Scalia, for goodness sakes.  If even the absolute King of Textualism joined the opinion, it's darn hard to say that opinion doesn't stand the test of time because it reaches a conclusion that couldn't possibly be squared with textualism.

Seven members of the Court, including all the textualists, agreed that restitution orders aren't dischargeable in bankruptcy.  (The only dissenters were Justices Marshall and Stevens -- hardly justices hell-bent on textualism and two whom Judge Owens wants to strap his contemporary analysis.)  The current order looks, smells, and quacks like a restitution order.  So there's a darn strong argument, in my view, that you've got to follow the relevant Supreme Court precedent.

Even if -- as I do -- you personally don't think the text, standing alone, would compel such a result.  Precedent means something.  Especially Supreme Court precedent.

I get that the Supreme Court's decision in Kelly leads to some uncertainty.  And Judge Owens is surely right when he lists a plethora of post-Kelly cases -- although none of them involve State Bar orders -- to establish his point that "[i]t is fair to say that the 'I know it when I see it approach' of Kelly has led to predictably unpredictable results."

But that you don't like a Supreme Court case, or that it has created unpredictable results, isn't a basis for lower courts to stop following its dictates.  There are lots of Supreme Court cases I don't like and the analysis of which I find confusing, unhelpful, or downright wrong.  But if I'm on a lower court, I've got to follow 'em.  And that also means following them in analogous settings.  It's a dirty job, to be sure.  Filled, at least sometimes, with uncertainty.

But that's still my job.

Sure, the Supreme Court's prior case involved a criminal restitution order, and this one involves what essentially amounts to a State Bar restitution order.  But that prior case also involved someone named Kelly, whereas this one involves someone named Scheer.  What matters is not whether the cases are different in some way.  It's rather whether those differences are material.  If the analytical reasoning of Kelly extends to the present case, then the result should be the same.  Even if you're not persuaded by that reasoning.  That's what it means to follow precedent.

At least in my view.

(Nor, by the way, does it answer the question to say that a subsequent Ninth Circuit case, which post-dated Kelly, "answers the question," since that prior circuit precedent (1) followed Kelly, and (2) found the debt to the State Bar nondischargeable, thereby providing scant support for today's contrary holding on both points.  At the absolute most, that prior circuit precedent is distinguishable from the case at issue today; it certainly doesn't provide affirmative support for it.  Again:  At least to me.)

So, in the end, I'm not sure that saying that application of statutory purpose, context, and history went out the window with NutraSweet really answers the dispositive question here.  I think you've got to do much more work than that.  Work that could have been, but isn't, present here.

People v. Weddington (Cal. Ct. App. - April 13, 2016)

This is why you should lock your doors every time you leave your home.  Every time.

"Sometime after Fernandez had left, Barba noticed a red car parked across the street. The car pulled away, but returned five or ten minutes later. Barba saw the driver, whom she later identified as Bashir, get out of the car and approach Barba’s front door. When Bashir reached the front door she pounded on it loudly for about 30 seconds. Barba became frightened. She gathered her children and went to the master bedroom as the pounding continued. When the pounding stopped, Barba saw Bashir return to the red car, where two male passengers were waiting. The car then drove away.

About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on patrol near Havenhurst Avenue in Granada Hills, he noticed a red Chrysler Sebring driven by a woman with two male passengers who were slouching down in their seats. Officer Parker followed the vehicle and next saw it stopped in the alley behind Barba’s house. Weddington got out of the car, and as he walked toward the trunk of the Sebring, he looked in Officer Parker’s direction and immediately got back into the car. The Sebring then accelerated quickly away. Officer Parker followed the Sebring as it sped out of the alley—going 30 to 35 miles per hour in a 15-mile per hour zone—and turned right without stopping at the end of the alley or signaling for the turn. Officer Parker tried to get behind the Sebring to conduct a traffic stop, but the Sebring sped onto the 118 Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the Sebring onto the freeway, and turned on the patrol vehicle’s lights and siren. The Sebring exited the freeway and came to a stop.

Officer Parker requested backup units and conducted a traffic stop. Weddington and Nunnery were passengers in the car driven by Bashir, who was driving on a suspended license. The Sebring was impounded and searched. The destination on the GPS on Weddington’s cell phone was an address located in the southern part of Los Angeles. In the search, police recovered a crowbar, a window punch, two flathead screwdrivers, one with a bent tip, a Phillips-head screwdriver, a tire repair tool, a pair of two-way radios, one black glove, two empty backpacks, and a pair of white gloves. Another pair of black gloves was recovered from Nunnery’s pocket. Los Angeles Police Officer Benjamin Sadeh described how these items could be used in a burglary and opined that most of these items were common burglary tools.

Midmorning on September 26, 2011, a multi-unit team of the Los Angeles Police Department conducted undercover surveillance of the red Chrysler Sebring starting in the southern part of Los Angeles and continuing north along the 405 Freeway into the San Fernando Valley. Officers in a helicopter tracked the Sebring using a powerful magnifying camera, which enabled them to see people on the ground from an altitude of 6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers on the ground in unmarked vehicles who were using the information provided by the airship to follow the Sebring and relay street names and house numbers back to the helicopter.

The helicopter tracked the Sebring as it exited the freeway in Northridge and slowly drove through side streets, occasionally stopping in front of homes. Eventually, the Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about five minutes, the female driver exited the vehicle, walked to the front door of the house, and knocked on the door for one to two minutes. No one opened the door. The woman returned to the Sebring and drove away.

The Sebring stopped in front of the home of Julianne McCloskey on the 9000 block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front door of the house, knocked, and stood there for about a minute and a half. No one came to the door. The driver then peeked over the side gate of the house before returning to the car. After a few minutes the Sebring pulled away.

The Sebring then parked across the street from a home on the 16000 block of Tupper Street. Again, the driver exited the vehicle and knocked on the front door of the house for about a minute. No one came to the door. The driver looked over the gate on the side of the house before returning to the Sebring. After about five minutes the Sebring drove away.

Police next observed the Sebring stop in front of the home of Kin Fong on the 16000 block of Labrador Street. Fong was not home. The female driver got out of the car and walked up the driveway to the front door of the house. After knocking on the door for a minute or two and receiving no response, she walked to the side gate and looked into the backyard. As she had done after knocking on the doors of the previous homes, the woman went back to the Sebring and sat in the driver’s seat. This time, however, the Sebring did not pull away. After about five minutes, a thin male emerged from the backseat of the Sebring and went through the gate to the backyard. A heavier male then got out of the front passenger seat of the Sebring and joined the thinner man in the backyard. The men opened a window through which they entered the house. After about 10 to 15 minutes, both men exited through the front door carrying small bags and pillowcases which appeared to be weighted down.

A marked police car followed the Sebring when it left the Fong residence. As police attempted to conduct a traffic stop, the Sebring began to pull over to the right and slow down, but suddenly accelerated and sped away. During the ensuing police chase, the Sebring ran several red lights in heavy traffic, and money, coins, jewelry, clothing, and video game cartridges were thrown from all four of the Sebring’s windows. Some of the coins hit the windshield of the closest police car.

The Sebring eventually crashed, and the three occupants of the vehicle ran in different directions. Police took up the chase on foot, and Bashir, Weddington, and Nunnery were apprehended and taken into custody. As Nunnery was being apprehended, he spun around and elbowed the arresting officer in the face, breaking his nose.

In a bifurcated bench trial, the prosecution presented evidence in support of the gang enhancement allegations that Weddington, Nunnery, and Bashir were all members of the Clover subset of the “Seven Trey Gangster Hustler Crip” criminal street gang (STGH), an offshoot of the original Crips gang. They all had numerous STGH tattoos. The prosecution gang expert testified that gang tattoos were earned by “putting in work” for the gang, that is, committing crimes for the gang’s benefit. . . .

According to the prosecution gang expert, the burglary and attempted burglaries represented a signature crime of STGH, known as “floccin’,” in which Crip gang members leave their territory in the southern part of Los Angeles to commit daytime burglaries of residences in the San Fernando Valley suburbs. The term “floccin’” is derived from so-called “knock-knock burglaries,” in which one of the perpetrators knocks on the door of a target residence to determine if anyone is home. The gang expert described a YouTube video he had seen by a STGH gang member known as “Cowboy” which depicted floccin’ as a residential daytime burglary in which jewelry and other small items are taken and the perpetrators flee in a getaway car."

To me, this was outstanding police work.  I wouldn't have thought the LAPD would have engaged in such expansive surveillance just to stop a string of residential burglaries.  But I'm glad it did.

On the law side, I also agree with the Court of Appeal that there were multiple attempted burglaries in this case, including those involving the homes that didn't end up getting broken into.  Justice Rothschild dissents, and says that for the houses the gang passed up on, their actions were only equivocal and "they rejected each house, not because something interfered with the execution of a burglary, but because, after considering each of the houses, they themselves decided to look for another target."  I understand that position.  But disagree.  In my view, they planned on busting into every one of the houses they cased, but in each of the non-burgled houses, there was something that interfered with the execution.  Something didn't look right.  Maybe there was a dog.  Maybe they heard sounds.  Maybe they saw a neighbor.  Whatever.  In each of these cases, I'm not sure what it was that persuaded the robbers to ditch that house and go to a different one.  But I'm confident that it was something.  'Cause they planned on breaking in, and only that something -- whatever it was -- caused them to ditch that burglary for another.

These people were ready.  Their intent to burgle wasn't equivocal.  Every single one of those homes would have been entered if things had looked as the burglars hoped and initially thought.

That's an attempt.  Every single time.

Wednesday, April 13, 2016

Tribble v. Edison Int'l (9th Cir. - April 13, 2016)

Plaintiffs say that their employer violated ERISA by imprudently investing in and retaining certain mutual funds in their retirement plan.  The district court dismissed most of these claims as beyond the relevant statute of limitations, the plaintiffs appealed, and in 2013, the Ninth Circuit affirmed.

But in 2015, the Supreme Court reversed.  The Court unanimously held that the Ninth Circuit erred by failing to recognize that an ERISA trustee has a continuing duty to monitor trust investments and remove imprudent one.  So back to the Ninth Circuit the case goes.

So things are looking good for the plaintiffs, having secured a unanimous victory in the Supreme Court.

Not so fast.

Today, on remand, the Ninth Circuit holds that the plaintiffs waived this "continuing duty" theory by failing to previously raise it.  So case dismissed.  Again.

The Ninth Circuit's decision seems overly parsimonious to me.

Plaintiffs first say that they raised a "continuing violation" theory below, which should be good enough to preserve the issue. The Ninth Circuit disagrees.  But in my view, if these two theories are not the same thing, they're certainly darn close.  Waiver is a matter of discretion.  Having won in the Supreme Court on the exact same theory they're now asserting, it seems a little harsh to me to parse out the briefs below incredibly carefully to try to find a meritorious assertion waived.

Plaintiffs also say that if they didn't raise this theory, that's because the law was against them, and they're under no obligation to raise below arguments that are legally barred.  Judge O'Scannlain's opinion responds that this "change of law" exception to waiver doesn't apply because there was no change in the law.  But that's a tough thing to say since the Ninth Circuit's opinion expressly says that the law was X in 2013, and then the Supreme Court unanimously says in 2015 that the law is not X, and is instead Y.

Plaintiffs have a wide variety of other waiver arguments as well.  But my basic point is this.  The lower courts didn't rely on any waiver argument.  They reached the merits.  The resulting legal issue was then squarely presented to the Supreme Court, which resolved the merits.  I understand that we generally want people to have presented arguments below in order to get the informed judgment of the lower courts.  But here, the Supreme Court was just fine to resolve the issue without any such prior adjudications.  In such circumstances, it doesn't make sense to me to find waiver.  If the Court doesn't need prior assertions of the argument -- and it didn't -- neither should we.  Especially when we're dealing with what we should do after the Court has already decided the issue.  We now know what the law is.  We should apply it.  It serves utterly no purpose to find waiver.  Or at least no real purpose other than finding a way to hose a party that got us reversed, and to find a way to dismiss what we now know may well be a meritorious claim.

Those don't seem like sufficient reasons to me to find waiver.

I understand that the Supreme Court said in the last paragraph of its opinion that it was up to the lower courts to resolve the waiver issue.  But I'd decide that issue with a finding of nonwaiver.

So here's my purported rule.  The Court of Appeal shouldn't retroactively apply the discretionary doctrine of waiver when the Supreme Court has already addressed the substantive issue on the merits.   If the Supreme Court didn't need the lower courts to chime in, neither do we.

Especially at this point,