In Re Loveless (Cal. Ct. App. - Jan. 31, 2011)

Half good.  Half bad.

Good part first.  Michael J. Loveless decides to rob a house in 1986 because he thinks there's a ton of money in it.  He and a confederate go in, tie up the father and his 14-year old son, and put a gun to the father's head.  A while later, while the gun is at the father's head, it goes off, killing him.  Loveless immediately apologizes, saying it was an accident.  After searching the house, Loveless's confederate tells Loveless to kill the boy since he's a witness, but Loveless refuses to do so.  They leave the house with $110 in cash, and Loveless is eventually caught, convicted, and sentenced to 15 years to life.

Fast forward 22 years later.  Loveless has no criminal record, was drinking heavily (and using drugs) at the time of the offense, has an extremely good disciplinary record in prision, and has lots of support for parole.  But the Board denies him.  The trial court, however, reverses.  The case goes up to the Court of Appeal.

The good part about Justice Nicholson's opinion is that it reverses the trial court.  There was indeed "some evidence" that supported the Board's decision.  Loveless had stopped attending AA and NA, had basically done everything that the Board told him to do but no more, hadn't really done any self-help efforts, and was overly agitated during the parole hearing, constantly interrupting the Board, which concluded that they were "listening to a con, and not necessarily a rehabilitated one."

Now, some of this is perhaps understandable.  If you've been in prison for two decades based upon a robbery that went horribly wrong, and finally have a chance to be free, when you're faced with a hostile Board (either objectively or in your own mind), I can see how one might be frustrated.  Nonetheless, you have to be calm, and your inability to do so doesn't bode well for your future success.  So I agree with the Court of Appeal that, based on the totality of the Board's findings, there was some evidence that supported their decision to deny parole.  So that's good.

Here's the bad part.  The Court of Appeal also holds that the Board was correct to deny parole because the crime was committed "in an especially heinous, atrocious or cruel manner."  What?!  Yeah, Loveless only got $110 from it, which I guess is a "trivial" reason, but all murders for money are inherently for trivial reasons -- the two (a human life and money) are incommensurate.  You're telling me you should grant parole to a guy who killed and stole for $110,000, but not $110?  Really?

More importantly, the shooting was clearly an accident.  Yes, that's still second degree murder.  But every murder is "especially heinous" if even an accidental murder counts as well -- hardly a basis for distinguishing the parole-worthy from those who should be denied.  Loveless immediately said it was an accident.  He refused to kill the son -- even at potential risk to himself from his confederate -- even though it meant leaving a live witness.  What Loveless did is simply flatly inconsistent with a view that he deliberately shot and killed the father for a mere $110.  The fact that the robbery was planned, and that it was a calculated risk to put a gun to someone's head, definitely makes it second degree murder.  But that doesn't make it an especially heinous one.

I've read a ton of second degree murder cases in my time.  To say that this one falls on the extreme end of the "especially heinous" scale is simply uncredible.  Yes, a person died, and yes, he died in front of his 14-year old son.  Deliberately imposing those costs or $110 would have been one thing, and maybe I'd be on board if Loveless indeed engaged in such a calculated act (or shot the son as well).  But that not only didn't happen here, but what actually transpired was in fact the total opposite.

So there's a good result here, I think, and for more than an adequate reason.  But part of the basis for the Court of Appeal's holding seems both demonstrably wrong as well as extremely pernicious -- for Loveless (who has to face that same holding in future parole appeals) and for everyone else who will now have to face this same precedent in deciding whether their (much worse) murder was also "especially heinous."

So some good.  But some definite bad.

United Fabrics v. C & J Wear (9th Cir. - Jan. 26, 2011)

Sometimes oral arguments matter.

United Fabrics has a copyright on a particular fabric design, and sues C & J Wear (as well as Macy's) for infringing this design.  United Fabrics got this design from an Italian design house though an agent, and registered the copyright in the United States.

The district court, however, dismissed United Fabric's lawsuit for lack of standing, on the ground that it didn't prove that it had a valid copyright because it couldn't establish a complete chain of title to the design -- i.e., ownership of the design from the Italian company to the agent to United.  United Fabric appeals.

The big problem with this analysis, however, is that registered copyrights are presumed valid.  So it was Macy's duty to prove that United Fabric didn't have the title, but Macy's didn't do that -- all it did was to show defects in the chain of title, and didn't present affirmative evidence of its own.

So the case gets briefed, and the time comes for oral argument.  The lawyers for C & J (and Macy's) decide that Scott Shaw -- a young partner (and 2002 graduate of USC Law) will argue the case.  Likely because Scott wrote most of the brief and so knows the case better than anyone else.  Plus, Macy's won below, and convinced the district court.  How hard can the oral argument be?  (To prove how confident the law firm was, even to this day, the case remains prominently on the firm's web site as an example of its stellar performance, under the firm's motto:  "When Results Matter".)


But, as one might expect, the Ninth Circuit picks up on the central problem with Macy's case, and wants to know what evidence Macy's has that rebuts the presumption.  The Ninth Circuit doesn't find it in the briefs, saying:  "Macy’s argues that United failed to establish the chain of title to the underlying artwork and therefore does not have a valid copyright. But Macy’s skips a step; nowhere does it set forth facts that rebut the presumption of validity to which United’s copyright is entitled, and Macy’s does not even argue that it has rebutted that presumption. The district court’s ruling suffers from the same defect. Although such evidence may be present in the lengthy and extensive record, it is not our place to find it, [citations] or to provide an argument on behalf of Macy’s as to how that evidence rebuts the presumption of validity."

So here's where the oral argument might matter.  Because, as one might predict, the panel bores in on this central question, and here's what transpires:  "It is true that, at oral argument, counsel for Macy’s asserted that it had rebutted the presumption of copyright validity. But, when we asked Macy’s attorney to identify evidence in the record sufficient to rebut the presumption of copyright validity, he merely argued, inter alia, that a United representative testified at a deposition that its designs 'were not published as a true collection' and that 'there is also no evidence that [these designs] met the requirements of an unpublished collection.' Counsel also asserted that Macy’s introduced evidence 'that the transfer was completely invalid,' but to support this assertion, he did nothing more than contend that United failed to provide evidence of the transfer. By repeatedly mentioning that United provided 'no evidence,' we are skeptical that Macy’s understands that it bears the burden of providing 'some evidence' of invalidity. Regardless, Macy’s cites no authority that such facts rebut the presumption of copyright validity."

Admittedly, maybe the problem was also with the briefs, as well as the evidence below.  Sometimes you've got nothing -- nothing -- that's truly on your side.  Though that's pretty rare, especially in appeals in which you won below.  And even if it is, that's a good sign that you should settle the case -- presumably on favorable terms, since the other side currently stands at a total loss -- rather than defend your nothing on appeal.

But this is also proof that oral argument isn't always a show trial.  Sometimes, judges tell you what they think, and if they have indeed missed something -- which is always possible -- being able to recognize their inquiries for what they are and having the ability to correctly respond to these questions matters.

Sometimes dispositively.

Kwikset Corp v. Superior Ct. (Cal. Supreme Ct. - Jan. 27, 2011)

I won't say much about this case.  It's a (relatively) high-profile UCL standing case from the California Supreme Court, so will get a decent amount of press elsewhere.  No need for me to pile on.

But I did want to say two quick things.  First, this is a really wonderful opinion by Justice Werdegar.  One of her best, in my view, in the sixteen year she's been on the Court.  The entire time I was reading it, I thought to myself:  "Wow.  Whoever's writing this is smart, and a really good writer.  I wish I could do half as well."  It's analytically solid.  Extremely so.  Second, on a related note, it really crushes Justice Chin's dissent.  It's not even close.  It's not that Justice Chin doesn't have a point.  But it's largely a political one.  If you care about law and legal analysis, in my opinion, it's not even a fight.  So I thought it disappointing that Justices Chin and Corrigan would go the other way.  Not perhaps unexpected, but disappointing nonetheless.

But let's focus on the positive.  If you want to read a great example of a really good opinion, read Justice Werdegar's.  It's incredibly solid.  Extremely good.

In Re Espinoza (Cal. Ct. App. - Jan. 27, 2011)

I agree with this disposition.  The regulations say that you can't have conjugal visits with your wife if you've previously been found guilty of distributing drugs while in prison.  Makes sense.  That's true even if you slung your dope during one of your prior stints -- as opposed to your current one -- in the pen.  Some parts of the regulations only look at your activity during the past twelve months.  This one doesn't.  So you've got no right under the regulations, or under the Due Process Clause, to sleep with your spouse while you're in prison.

Sorry about that.  But you gotta think about that before you smuggle in dope.  Your bad, not ours.

Despite my overall agreement with the opinion, there's one tiny part that I'd delete.  Justice Hollenhorst holds that there's no Due Process right at stake because Espinoza "is not being denied contact visits wtih his spouse or other family members in the prison's visiting room.  He simply faces restriction on the manner in which he may visit his spouse.  Thus, there is an alternative avenue open for Defendant to maintain his family relationship with his spouse."

True enough.  But Espinoza's "alternative avenue" to maintaining a "family relationship" with this spouse is qualititively different to the one he's seeking.  Big time.  I don't think Justice Hollenhorst -- or anyone else -- would like it if the only way he could have a "family relationship" with his spouse was to do so in a crowded prison visiting room.  I know I wouldn't.  There are contacts I'd like to have that don't involve being watched by 100 other inmates and their children.  So, yes, there's an "alternative" available, but to me, that doesn't say much (if anything) about the nature or merits of Espinoza's claim, or the importance of the right he seeks.

It's important.  He's just lost it.  No need to deny the former by attempting to minimize the importance of intimate relations with the person with whom you've chosen to spend the rest of your life.

U.S. v. Potter (9th Cir. - Jan. 26, 2011)

In a shocking -- shocking -- development, the Ninth Circuit this morning held that the possession of a firearm in furtherance of drug trafficking is not protected by the Second Amendment.

Yet another example of the wacky, uber-left Ninth Circuit going out of its way to undermine the core constitutional rights of American citizens.  This time, the time-honored right to possess a weapon in order to facilitate the sale of narcotics.

Those Ninth Circuit bastards.

People v. Morrison (Cal. Ct. App. - Jan 25, 2011)

I'm liking the trial court -- Judge Jed Beebe, up in Santa Barbara -- in this one.

William Morrison is on probation and gets caught by his probation officer for putting fake pee in a cup.  Section 135 of the Penal Code makes it a misdemeanor to wilfully destroy evidence.  So you'd think that manufacturing "evidence" that's never going to be used at trial (this is a pure probation issue) would simply be a probation violation, or at most a misdemeanor.  But Morrison gets charged with a felony under Section 134, which applies to anyone who prepares false evidence for any "trial, proceeding, or inquiry whatever, authorized by law."

Judge Beebe says:  "I'm not happy about it.  It seems to me it ought to be a wobbler."  But he concludes:  "I've been struggling for some intellectually honest way to read that language and say it doesn't apply, and I can't find it."  So applies Section 134 to Morrison.  After which the Court of Appeal affirms.

I like someone who both struggles to do the right thing and yet remains intellectually honest, even when it compels a result contrary to his internal preferences.  I think that's a great way to be.  So kudos to Judge Beebe.  Who gets this one exactly right, in my view.

Sometimes, the plain language of a statute is indeed the starting and ending point for the relevant inquiry.

U.S. v. Gonzalez-Diaz (9th Cir. - Jan. 24, 2011)

Everyone agrees that it's illegal to "enter" the United States illegally after being deported.  But assume a defendant isn't charged with that, but is instead, charged with being "found" in the United States after being deported.  With respect to that offense, everyone agrees that to be "found" in the United States illegally, you've got to be actually found there.  If only because that's what the statute says.  So if you leave the United States before you're found, you're not guilty.  Consider it akin to withdrawing from a conspiracy, but in the immigration context.

Given those precepts, how should the following hypothetical come out:  Defendant lives in the United States illegally, decides to leave, goes to another country (illegally), gets caught there, and then is returned to the United States against his will.  Guilty of being illegally found in the United States?

The Ninth Circuit says "Yes."

This seems dubious to me.  Sure, you were "found" in the United States.  But you were also there against your will -- here, the defendant was begging not to be returned, for fear that he'd be killed in prison.  Moreover, it's not as if he was found living freely in the United States.  He was only "found" in the United States because United States officials were waiting for him at the border the second the Canadian officers handed him over to them.  In other words, he was under official restraint the whole time, which typically means that you're not guilty.

The Ninth Circuit concludes, however, that even though someone who leaves the United States isn't "found" there and breaks the chain required for a conviction, individuals like the defendant here are not "found" anywhere else because they were not legally in the other jurisdiction (here, Canada).  But where does that requirement come from?  Certainly not from the word "found," which doesn't have any legality component at all.  It seems to me that once someone leaves the U.S., they are "found" elsewhere, legally or not.

This holding also seems to me to have some really perverse consequences.  For example, imagine that a guy illegally lives in the United States for a tiny bit, but then decides to return to his home in Honduras permanently.  He's had a change of heart.  He now realizes it's wrong to be an illegal alien.  He'd like to get back to Honduras as quickly as possible, but doesn't have enough money for a flight, so takes a bus.  He leaves the United States, and travels the entire length of Mexico, but two miles from the border with Honduras, he's picked up by Mexican authorities for being illegally in Mexico.  He pleads with them to send him to Honduras, but the Mexican authorities refuse, and instead fly him to the United States, at which point he's immediately arrested.  According to the Ninth Circuit, the defendant here is guilty of being "found" in the United States upon his return.  But that seems silly.  He did everything he could to leave.  He shouldn't be guilty just because his attempt to leave the United States was initially successful but ultimately was frustrated by government officials.

Or imagine this one:  Same defendant, same process, and two miles from the border, Mexican authorities arrest the defendant on a trumped-up charge in order to coerce a bribe.  Defendant has no money, and begs to be delivered to Honduras, but Mexican authorities refuse, saying that they'll send him back to the U.S. unless he can pay.  He can't, so they do.  Defendant can prove all this.  The Ninth Circuit would still say he's guilty, since he was not yet "legally" in his home country.

I think a contrary rule is preferable.  If a guy can establish that he intended to leave the United States permanently, and in fact leaves the country, I don't think he's "found" in the U.S. just because officials from a foreign country subsequently put him there against his will.  It may be hard to prove that this was the defendant's intent, but if he can, I think that's good enough.  He left.  His crime -- at least the "found" one -- has terminated.  Sure, he can still be deported, and returned to his home country.  Or perhaps even charged in the other country for trying to enter illegally there.  But can't be imprisoned in the United States on the ground that he was "found" there after authorities placed him there against his will.

It seems to me that this rule avoids all the bad consequences of the Ninth Circuit's holding, obtains nearly all the benefits of it, and avoids a conflict with both precedent and the text of the statute.  Plus, it just seems fairer.  A guy who does all he can do to leave the United States -- and does -- shouldn't be guity of being "found" in the U.S. involuntarily.

So I'm going to have to disagree with Judges Willie Fletcher, Ray Fisher and James Jones (sitting by designation from Virginia) on this one.

Which, by my count, makes the vote of Article III judges still 3-0.  But if one were to count my non-Article III, tenured bottom, it'd be 3-1.  Which surely is worth something, no?

Harris v. Maricopa County Superior Ct. (9th Cir. - Jan. 20, 2011)

Judge Reinhardt writes an opinion.  Judge Bybee concurs in part but dissents in part.  Not surprising.

But Judge Bybee wants to make sure you know a little bit more.  Even if you only read one line of the 50 single-spaced pages.

So rather than "Judge Bybee, concurring in part and dissenting in part," he makes sure the opening description reads:

"Bybee, Circuit Judge, concurring in the judgment in part, but mostly dissenting:"

"Mostly dissenting."  Nice touch.

City of Arcadia v. State Water Resources Control Bd. (Cal. Ct. App. - Jan. 20, 2011)

Good catch by the Court of Appeal.  Its initial opinion, read:  "The record reflects Regional Board's basin plan also took into considered 'potential' beneficial uses of water in setting water quality objectives."  Should be "consideration."  Editing error.  Nice correction.

But the same amendment that made that correction created another one.  The second change was to add:  "See also [sect.] 13240 (requiring basin plans 'shall be periodically reviewed and may by revised')."  Oops.  That should be "may be" revised, not "may by."

Plus, I know we like the first word after a parenthetical to end in "-ing".  But I'd either omit that first word entirely -- the statute speaks for itself -- or say "(requiring basin plans to "be periodically reviewed and may be revised")."  Makes more sense.

Still, I like the error correction.  Which I have to do constantly in my own work as well.

People v. Booker (Cal. Supreme Ct. - Jan. 20, 2011)

Think you understand people?  Then tell me why Richard Booker committed these murders.

It sounded like just an ordinary night out with friends.  That turns into an inexplicable triple murder.

I don't get it.  I really don't.

Needless to say, Booker is sentenced to death, and the California Supreme Court unanimously affirms.  A mere dozen years after the sentenced was pronounced.

P.S. - It's not that I categorically don't understand murders.  I typically do.  For example, here's a case that's also decided this morning, and is your typical fare.  Another death penalty, another unanimous affirmance, another 11-plus year delay.  But I get it.  At least the murder part.

People v. Armas (Cal. Ct. App. - Jan. 18, 2011)

This just seems out of whack to me.

I'm not complaining about the Court of Appeal's resolution of the case.  That seems just fine.  But to me, the underlying facts demonstrate just how out of whack we've made the sex registration regime.

Jose Armas pleads nolo contendre to a count of lewd conduct with a person under 14.  Apparently his wife came home and discovered him with his ten-year hold stepdaughter in bed without any underwear, and Jose admitted to the police officers that he was "turned on" when his stepdaughter removed his underwear and that had his wife not interrupted them, "it could have gone further."  Yuck.

Armas gets sentenced to probation and is immediately released after sentencing.  Now, I don't know all the facts, but to me, that seems like a pretty light sentence.  But what do I know?

What I do know is that Armas has to register as a sex offender for the rest of his life.  As does Armas.  So he's released on July 24th and, four days later, he goes to the Sheriff's station to register.  Apparently they only register people at that station on Wednedays (!), so the deputy gives Armas a piece of paper to prove that he tried to register, and tells him to come back the next Monday (?).  Two days later, Armas faithfully goes to his probation officer, shows his piece of paper, and is reminded to make sure he shows up to register on Monday.  On Monday, Armas does what he's supposed to do:  he shows up, registers, tells the officers where he's living (in a flophouse on Whittier Boulevard for which he has a voucher), and leaves.

Jose's vouchers run out several days later, and while he might have had enough money to stay a couple of more nights, he eventually has to leave, and starts staying at a shelter in L.A.  His probation officer, however, had sent Armas a letter a week after his registration to the hotel, which was returned as undeliverable.  So the probation officer called Armas, and Armas dutifully answered.  The officer tells Armas that since he's now a transient, he has to reregister, and also tells Armas to come in the next week.  Armas says okay.  And, one week later, on August 26th, Armas indeed comes in, and tells his p.o. that he's staying at the shelter.  The officer then tells him that since the shelter's in the City (whereas the flophouse was only in the County), he's got to reregister at a different place.  Shucks.  A week later, Armas calls the officer with whom he initially registered in an attempt to make an appointment to reregister, and makes another call four days later for the same purpose.  But four weeks go by without him actually registering.

So they promptly arrest him.  And charge him with three counts of failing to register.

For which he's pretty clearly guilty.  He's given it a shot, mind you.  But hasn't actually done exactly what he's supposed to be doing.  And the fact that the authorities are always able to reach him via telephone, that he has consistently shown up to all of his meetings with his probation officer, etc. don't legally excuse him from the technical registration requirements.  So he's guilty.

So the court sentences him to the low term.  Which, in his case, amounts to three years in prison.

It just seems bizarre to me that a dude that gets probation for the actual offense gets three years for failing to register effectively in a setting such as this.  What he did initially was far worse than what he did thereafter.  Is he liable for both events?  Totally.  But the sentences for each just seem radically out of whack with both each other and with the respective moral culpability of each.

I'm sure this is the way the system works.  But it doesn't seem right.  On any level.  As a deterrent, as a retributivist scheme, etc.  Punishing the failure to register substantially more than the underlying offense, at least in a situation such as this one, seems wrong.

Pannu v. Land Rover North America (Cal. Ct. App. - Jan. 19, 2011)

You're a large corporation.  You lose a big personal injury trial.  Like $21.5+ million big.  You want to take a shot with the California Court of Appeal.  What do you do?

You could have your trial counsel do it.  They know the case pretty well, after all.  But you want a fresh set of eyes.  Plus some special appellate skill.  Maybe even a "name" to get the Court's attention.  Plus, your trial counsel lost big.  Maybe time for someone new.

What's the "safest" approach?  Hire a well-known appellate lawyer.  Big firm.  Other big cases.  No one will complain about your choice.  Will cost you a huge chunk of change.  But you'll have the "best".

Like here.  The folks at Land Rover hire Ted Boutrous of Gibson Dunn to prosecute their appeal.  Now we'll really go at 'em, eh?

For naught.  Plaintiff prevails in the Court of Appeal as well.  Even adding a shot at your fancy lawyer. ("Land Rover's argument is predicated on a distortion of the record.")  Ouch.

Land Rover will presumably do the same thing at the California (and probably U.S.) Supreme Court stage as well.  Play it conservative.  Do the thing that no one can dispute.  Spend the money, don't settle the case, say that it's not your fault -- that the Court of Appeal got it wrong, that you hired the best lawyer in town, etc etc.

Sometimes that play works.  Sometimes it doesn't.  Here's an example of the latter.

Liberal v. Estrada (9th Cir. - Jan. 19, 2011)

A police officer sees a young African-American male driving a car in Menlo Park at 1:40 a.m., and the passengers in this car are a young African-American male and young Mexican-American male.  The car is obeying all traffic rules, but allegedly has an illegally tinted window.  So you know what's going to happen.  The officer turns on his lights and makes a u-turn to stop the car.  Because the subjective intent of a stop doesn't matter if you have an objective basis for it.

At which point the driver of the car sees this, and immediately makes a right turn at the next stop light and then an immediate left turn into an unlit parking lot behind a walk-up burger stand, turning off his headlights for good measure.  In short, he's trying to hide.

Which of course will not work, and will just hack off the officer.  As indeed it does.  The officer jams into the parking lot at high speed, shines his spotlight on the car, approaches it with his hand on his gun, and orders the occupants of the car to put their hands up and outside the car's window.  He gets the driver's license and registration, calls in the license plate number of the car, and orders backup, which arrives within 90 seconds.  Over the next several minutes, numerous officers -- "essentially the entire Menlo Park Police watch" -- arrives on the scene.

Does everyone attempt to calm things down?  No.  Of course not.  The driver starts screaming that the officer pulled him over purely based on his race.  One the passengers keeps yapping on his cell phone.  The officers scream at the passenger to get off the phone.  The officers order the driver out of the vehicle, slam him into the hood of the car, and 'cuff him.  You can probably figure out the attitude of the officers already, but lest there be any doubt, they record the thing on a tape recorder, and after partially Mirandizing the three occupants, you hear him say:

"[Officer Estrada]: Here’s the deal, ok? This is the way I do business, ok. If you would have pulled over and not tried to ditch me [inaudible], ok, then you and I would have been having a more decent conversation, ok. But you tried to ditch me, I get behind you, and then you start shooting off your mouth to me, and then your friends are joining along. I got to make a decision here.
[Plaintiff]: Um.

[Officer Estrada]: Let me finish.

[Plaintiff]: Yeah, I, that’s why I [inaudible] I thought you was done sir.

[Officer Estrada]: Don’t interrupt. I need to make, I need to make a decision here. I’m going to decide whether I’m going to let three little punks walk all over me, and the reason I call you punks is you’re acting that way. I[‘m] gonna have to decide whether I’m going to let three little punks walk all over me or whether or not to sit on you real fast and let you know that I’m the one in charge here, not you, ok. You understand me? Now, let me explain something else to you too. You may be able to get away with smarting off to some of the younger cops, you’re not going to do that with me and I’ll explain to you why, ok. Because, since I had no desire to become sergeant, I really don’t give a rat’s ass who I piss off. I don’t care about complaints.
[Plaintiff]: I know you don’t care I can see that.
 
[Officer Estrada]: Ok, so, so, so, it’s a lot of things in that Penal Code that I could arrest you right now for if I wanted to, so if I was you, I would just keep your mouth shut, don’t try to, don’t try to get smart with me, and we might have a better evening, you understand me? Do you understand me?"
 
Which, again, I'm confident happens all the time.  Only this time, it's recorded.  So the officer's can't testify that none of this happened, that they were courteous and merely concerned with officer safety, etc.
 
The truth of the matter is that the officers are hacked off.  They feel disrespected, and they're going to make the driver and passengers pay for that with a little "street justice".  No charges.  But we will slam you up on the car, handcuff you for a half hour, and make you sit on the curb for the better part of an hour.  Until you show the officers the respect they feel they're due, you're going to get the treatment.
 
Which is not to say that the driver acted appropriately.  He didn't.  Indeed, I think one of the officers (the Sargeant) is exactly right when he tells the driver -- again, on the recording -- that he's was "just being damn right ignorant" by pulling over into a dark alley, saying:  "“I mean stop, stop on the road because if this officer is not sure what’s going on and you do something stupid once he comes up on you, it’s very easy to get shot, you know, his safety is in jeopardy. Really, especially, you know, doing the whole routine back here.”  That's totally true.
 
Though two wrongs don't make a right.  Or at least that's what my mother repeatedly told me as a child.
 
Anyway, as you probably figured out, everyone gets released, then the plaintiff sues, then there's a qualified immunity motion, and then there's an appeal, which the Ninth Circuit largely decides in plaintiff's favor.
 
What's most interesting to me is that the dynamic of this case probably happens all the time.  But rarely is recorded.  And hence rarely results in a lawsuit, much less in a decision in favor of the plaintiff.
 
Which is not to say that plaintiff will necessarily prevail at trial.  Though he might.  It depends on which one of the parties the jury likes least.  In a situation in which both sides, in my view, did not display their most favorable personality traits.
 
So a story in Menlo Park that's probably replayed daily throughout the United States.  Except this time is on tape.  And accordingly offers a demonstrable insight into things that we might suspect, but rarely actually see, in a darkened alley at 1:40 a.m.

Hypertouch, Inc. v. ValueClink, Inc. (Cal. Ct. App. - Jan. 18, 2011)

Who to root for?  Entities who spam deceptive e-mail messages ("Free Gift If You Click Here!") and those that employ them, or someone suing them?  So close.  Especially when the former says that California's statutes are powerless to stop such misconduct because they're preempted.

The trial court sides with the defendants.  The Court of Appeal reverses.

And the (happy) crowd goes wild.

Couldn't happen to a nicer bunch of folks.

People v. Dixon (Cal. Ct. App. - Jan. 14, 2011)

Here's a criminal law question for you.  Imagine it's a final examination.  Or on the bar exam:

"John sends a text message to Jane offering to give her $200 in return for sex.  (The text reads: 'U with me, 1 night, $200 or more.'  Romantic, eh?)  Jane has not previously engaged in sexual activity for money, and is uninterested in doing so now.  John is guilty of which of the following California offenses:

A.  Soliciting prostitution ("Solicitation").
B.  Pandering (penalizing someone who "by promises, threats" or other means "causes or encourages another person to become a prostitute").
C.  Conspiracy to commit prostitution.
D.  (A) and (B).
E.  Each of (A) through (C).

Whatchathink?

Clearly, (A) is true.  This is a classic case of solicitation, and John/the john is obviously guilty.  Similarly, it's not (C).  There was no agreement between two people, so no conspiracy.

The question is whether John's act constitutes pandering.  The California A.G.'s Office thinks it does, which is why it charged him (actually, Todd Dixon) with it, got a guilty verdict from a jury, and defended this verdict in the Court of Appeal.  Todd "encouraged" Jane (actually, "L.N.") to be a prostitute because he wanted to turn her into a prostitute, albeit for one night and for himself.

But the Court of Appeal disagrees.  As do I.  Pandering is when you turn someone into a prostitute for someone else, or for a group of others.  Merely soliciting someone to have sex for you for money doesn't qualify.  Regardless of whether or not this is her first time.  Which, among other things, is why we think of "pandering" -- or the verb, "to pander" -- as being outwardly-directed.

I'm surprised the A.G.'s Office thought otherwise.  As, apparently, was the Court of Appeal.  Which makes repeated comments about the A.G.'s brief that definitely fall in the not-very-positive category.

Consider your knowledge of prostution law broadened yet again.

Wilderness Society v. USFS (9th Cir. - Jan. 14, 2011)

Who says that 11 federal judges can't all get along?

Unanimous.  Short.  Concise.

Were that everything was this easy.

In Re Marriage of Faso (Cal. Ct. App. - Jan. 11, 2011)

Would-Be Husband is a couple of decades older than Would-Be Wife.  They decide to get married.  Husband is worth over $30 million, and everyone wants a prenup.  Both parties get counsel.

The parties and their counsel heavily negotiate the thing.  Heavily.  They go through four or five different drafts.  At the end of the negotiating process, Wife says:  "You're not generous enough.  I'm calling off the wedding."  Husband thinks:  "I've got a plan.  The statute requires a seven-day waiting period in order for a prenup to be valid.  Even though it's been seven days since the first draft, it hasn't been seven days since the last draft, so I can sign Wife's proposal without it being binding.  Yay!"  So Husband and Wife sign.

With a negotiation process like that, how shocking the marriage only lasted 18 months.

Oh, and for what it's worth, the Court of Appeal holds that Husband's wrong.  Since he had a lawyer, the prenup is valid.  Wife's strategy was better than Husband's.

Ah, True Love.

Holmes v. Petrovich Development Co. (Cal. Ct. App. - Jan. 13, 2011)

I'm in a darn good mood.  It's completely sunny.  Seventy wonderful degrees.  I started my short drive to work overlooking the beautiful ocean, saw snow-capped mountains in the distance, drove down a beautiful palm-lined street, and hit all green lights on the way to work:  drive so fast that only a single song -- a guitar-riffing "Strangehold" -- had time to play on the radio.  Life is awesome.

So you'd think, given those predicates, that when I started reading the opinions this morning from the California Court of Appeal, I'd be in a super-cheerful, readily agreeable mood.

And yet with the first opinion I read, I find myself in disagreement with every member of the panel.

Not on everything.  I actually find the court's resolution of most of the case fairly persuasive.  It's a pregnancy discrimination and retaliation case.  Both sides have good positions.  On the one hand, I totally see where the plaintiff's coming from.  When you tell your boss you're pregnant, his reaction should not including saying (in writing, no less):  "I need some honesty.  How pregnant were you when you interviewed with me?"  I don't care how small the office is or how important the position.  That's not a legitimate inquiry.  Neither at the interview stage or thereafter.  "Honesty" has nothing to do with it.  So, to me, plaintiff is quite right to be upset at the inquiry.

That said, people make mistakes, and in later communications, defendant seems to have a sincere change of heart, and really does (IMHO) try to correct his prior error.  Not in a "CYA" way, I think, but rather in an honest understanding that what he did was wrong.  Plus, on the legal side, there are tough standards for when a single incident consititutes an actionable hostile work environment, so I can see why the trial court granted summary judgment to the defendant, and why the panel affirms.

So I can understand that.  Even though perhaps reasonable minds might differ.  (Which, among other things, is why I wouldn't have described plaintiff's arguments, as Justice Scotland does, as "It appears [plaintiff] expects FEHA to be a civility code."  That description is overly harsh, unnecessary and inaccurate, I think.  But maybe my reaction is a product of the good weather, and perhaps Justice Scotland wrote his lines during the winter rain and floods.)

But what I can't get on board for -- even in my completely good mood -- is the court's discussion of the attorney-client privilege issue.

The plaintiff, upset at her interactions with her boss, writes an e-mail to an attorney from her work computer.  Her computer is never monitored, and her e-mail is never inspected, and she even goes back and deletes this e-mail when her attorney tells her to.  But the Court of Appeal holds that because the employer had issued a boilerblate directive -- never actually followed -- that says that work computers are only for work, that they have the right to inspect all e-mails, blah blah blah, plaintiff's communication isn't privileged.  It's like, Justice Scotland asserts, "consulting [an] attorney in one of defendant's conference rooms, in a loud voice, with the door open."

Really?!  Seriously?

To me, this holding just goes way too far.  It might be one thing if everyone actually knew that someone was constantly looking at your e-mails.  In that factual setting, I get it.  But that wasn't the case here.  Nor is it the case in most of corporate America.  The mere fact that someone can look at your stuff doesn't necessarily mean you don't have a reasonable expectation of privacy.  Especially when, as here, you in fact know that they don't.

This holding also seems troubling -- and exceptionally far-reaching -- from a practical perspective.  Virtually every institution has the exact same internet/e-mail policy as the defendant here.  Yet the common practice -- to which virtually every person in America can attest -- is that we do expect a certain level of privacy in our work e-mail.  Go back and check your e-mails over the past year.  You mean to tell me there's nothing you have sent in the last year that you'd prefer remain private?  If so, you and I are definitely different.  We all, or at least most of us, do expect -- and believe -- that our e-mails will typically remain private absent unusual circumstances.  Even when our employer has a boilerplate, never-enforced policy.  I think that those actual expectations, proven time and again in practice, speak volumes about what people's expectations are.  And as a practical (as well as doctrinal) matter, I think those expectations are reasonable.  Something that the law should enforce absent unusual circumstances.

Plus, Justice Scotland's analogy seems way off base.  To me, the more accurate analogy would be to say that the communications here are like talking to your attorney in a whisper in an empty Costco owned by your boss when you know your boss is on vacation in Nigeria.  Even if your boss tells you, in writing, that he has the right to hide behind shelves and in large Pampers packages anytime he wants and to eavesdrop on anything he can hear, when you talk to your attorney in such a setting, you still have a reasonable expectation of privacy.

So I'd have to dissent with respect to that part of the opinion.  A part that I think is potentially really pernicious.

People v. Avila (Cal. Ct. App. - Jan. 6, 2011)

I always like it when the Court of Appeal gives good advice.  Particularly when it does so in the first paragraph of the opinion.  Always good for any readers who might be in a rush.

So, for example, Justice Yegan begins this opinion with the following introduction:  "A criminal defendant has a hard enough time defending the underlyign charge.  He should not 'pick a new fight' with the prosecutor and yet another fight with this court appointed counsel [by] threatening to kill them[,] thereby creating two new cases to defend."

Really?!  You don't say.  Hmmm.  Always thought that was a good strategy.  Thanks for the head's up.

Seriously, though, I really did like that introduction.  It brought a smile to my face.  Particularly since that's exactly what the defendant did here, and it was indeed a very poor strategic decision.

It didn't especially surprise me, by the way, when I learned later in the opinion that the defendant was found mentally incompetent to stand trial.  You have to be a little, well, "different" when you threaten to kill people in an open and obvious way.  Particularly when you do so in a call from a jail cell that you know is being recorded.  Even more so when -- because you're a nut job, quite frankly -- your second threat comes from a letter you sent from your jail cell (which you give to the jailer) in which you quite clearly print, on the outside of the envelope:  "Death Threat, Via U.S. Mail, Title 18 U.S.C. Crime."  Well, now.  That's making it pretty easy for the authorities, isn't it?  Even more so when you also write (again on the outside of the envelope) that if your letter isn't given to a particular judge, "When I get out, I will find you and murder you with a shotgun at point-blank."  Adding, lest there be any doubt, that you had the "specific intent" that your letter be taken as a death threat and that "This time I am not joking, I'm serious!!"

Getting a conviction on that one's gonna really be tough, huh?  That's for shortening the process, dude.

In the end, though, I find a glimmer of hope.  Because guess what?  This is not just some crazy guy.  This was a guy who ran for a seat on the Thousand Oaks City Council.  And who was initially charged with a crime when, during his 2004 campaign, he generated harassing text messages that were made to look as if they'd been sent by an opposing candidate.

Democracy, however, worked.  The voters elected the other guy.  So maybe we've got the right system after all.  The electorate can see whack jobs even before the criminal justice system can.

A great, and happy lesson.  Diminished only slightly by the realization that in the relevant election, out of seven candidates (the top two of whom won seats), this particular whack job came in fifth.

So imagine just how crazy the other two candidates must have been.

In Re Marriage of Fernandez-Abin & Sanchez (Cal. Ct. App. - Jan. 11, 2011)

Custody cases sometimes get ugly.  Real ugly.  But rarely do they include something like this.  Which occurred after a court order, no less:

"In mid-June 2008, husband, accompanied by about 10 armed men carrying assault weapons, went to wife's parents' house [], took the children and never returned them home."

Yikes.

This abduction took place in Tijuana, mind you.  But the children were U.S. citizens, the mother eventually became a legal resident, and the custody case ultimately ends up getting heard -- after various (ineffectual) orders by the Mexican court -- in San Diego, after the Child Abduction Unit of the San Diego D.A.'s office gets the kids (who were in Chula Vista) and reunites them with their mother.

But there are ongoing proceedings in both the U.S. as well as in Mexico.  Which makes for a procedural and jurisdictional nightmare.  Read the whole thing to get a sense.

It's not pretty.

Grewal v. Jammu (Cal. Ct. App. - Jan. 11, 2011)

When the Court of Appeal (or California Supreme Court) bothers to make some comments to the Legislature in a published opinion, I generally hope that people are listening.  Because it takes a bit for the judiciary to reach out to another branch, and when it does so, it's usually regarding an area that the judiciary has a great deal of both experience and expertise.  The judiciary speaks softly.  But it's more like E.F. Hutton than T.R. Roosevelt.  No stick.  But people listen.

I hope that's the case in reaction to this opinion.

It's another SLAPP appeal.  The resolution of which is less interesting than Justice Richman's comments to the Legislature.  Where he suggests that the Legislature should seriously consider repealing the provisions that authorize an automatic appeal when a party files for but loses an anti-SLAPP motion.

I think Justice Richman describes pretty accurately the problems engendered by automatic appeals.  Lots of these appeals are silly.  All of them delay the lawsuit a fair piece.  Sometimes substantially.  Because appeals take time, and meanwhile, the case is stayed.  Justice delayed is justice denied, and all.  So I am somewhat sympathetic to his views, and hopefully the Legislature will be as well.

But I'd nonetheless like to modify what Justice Richman says a bit.  As well as his suggestion.

It's true that some anti-SLAPP appeals are silly.  But some are meritorious as well.  Differentiating the two is not entirely easy.  And I'm not sure you entirely want to throw out the baby with the bathwater here.  There's a real problem -- the legitimate problem that motivated passage of the SLAPP statute in the first place -- of constitutional rights being potentially chilled by litigation.  We want to put a stop to that, and having an appeal helps to ensure that if the trial court gets it wrong, the defendant doesn't have to spend lots of money on legal fees in the meantime.  Because if they do, then we haven't taken away the chill on speech.

Justice Richman thinks that the possibility of filing a summary judgment motion or a writ solves this problem for cases in which an appeal might be meritorious.  I'm not entirely persuaded.  As for the former, filing such a motion costs a lot of money, takes a lot of time (including the required 75-day notice period), and often requires a boatload of discovery lest the motion be denied or continued.  Those are real problems.  As for the latter, given the number of denied writ petitions, and the short shrift they often (necessarily) receive, I'm not sure that's entirely adequate to solve the problem.  I'm can see why some one on the Court of Appeal might think  "Don't worry; we do a great job of solving this problem with discretionary review, since we're really awesome at separating the wheat from the chaff, and always step in when necessary."  But outsiders, including myself, aren't so convinced.  So neither solution seems entirely adequate to solve the chill.

But let me give an alternative.  For consideration by Justice Richman and/or the Legislature.

Justice Richman notes -- correctly -- that the problem with an automatic appeal is that it delays the lawsuit, typically by almost two years.  I agree that's too much.  So what about still allowing appeals but expediting them.  Opening brief due in 30 days; no stipulated or other extensions absent extraordinary circumstances.  Responsive brief due 30 days thereafter; reply brief (if any) 15 days thereafter.  All that's doable; the parties have already done the briefs below, and in these cases, that schedule is eminently feasible.  Once briefed, the anti-SLAPP appeals have priority.  The Court of Appeal has 30 days to schedule oral argument after briefs are filed.  Then pounds out its decision either quickly (could easily be within a week) or on the regular (90-day) schedule.  Whatever works.

Total time from start to finish:  Four to six months.  Sure, that's a delay in the underlying lawsuit.  But not a massive one.  Even a fraction of the discovery often takes up this period.  We'll thereby provide an appeal -- with the resulting safeguards -- but without the resulting delay.

I think that'd be the best of all possible worlds, and is a reasonable middle ground between what we have now and the solution advanced by Justice Richman.  It's a little bit of an administrative hassle, but eminently doable.  It also has precedent.  Both state and federal courts give certain appellate cases priority.  And the timeline I've suggested for anti-SLAPP cases is certainly more generous than, say, the one that applies to appeals of district court denials of motions by crime victims.  Which have to be decided by the Court of Appeals, soup to nuts, in seventy two hours.  I'd give the parties and Court of Appeal twenty times as much time to brief and resolve appeals in anti-SLAPP cases.  Call me generous.

So I think that Justice Richman is onto something here.  Not surprisingly.  I'd just suggest that his proposal to the Legislature be tweaked a little bit, and be a little more nuanced.

Maybe he'd in turn want to tinker with my proposal.  Perhaps if the trial court thought it was a close case, for example, it could have the power to expressly declare that "reasonable judicial minds could easily differ" with respect to the proper resolution of the anti-SLAPP motion, at which point the expedited schedule would not apply and the matter would be briefed pursuant to the usual provisions.  I'd be totally okay with that, and if a legislative committee wanted to add that, go right ahead.  I'm a flexible guy.

So I agree with Justice Richman as to the problem.  But the status quo has its advantages as well.  And I'm fairly confident there's a middle ground that properly obtains the benefits of both.

Las Vegas Sands LLC v. Nehme (9th Cir. - Jan. 11, 2011)

Here's a potential moneymaking strategy:

Go to Vegas.  Take out a credit application at a casino and a huge marker:  say, half a million dollars.  Gamble a tiny bit and then turn in the funds.

Go back home.  Have your attorney write an unsigned letter telling the casino not to give you any more markers and to cancel your credit line.  Make sure you get a return receipt.  See what happens.

Go back to Vegas.  If the marker's cancelled, no biggie.  Have fun.  If the marker's not cancelled, go ahead and take out another half million.  Gamble away.  If you win, you win.  Victory!  If you lose, make sure that the bank account that the marker's tied to is sufficiently empty to the marker bounces.  And when the casino sues you, defend the lawsuit on the ground that the letter negated your credit application, so you don't owe them the money.

That scheme's not only not a felony, but as the Ninth Circuit held this morning, may actually work.

Viva Las Vegas!

People v. Sharret (Cal. Ct. App. - Jan. 10, 2011)

"Defendant, Tyrone Sharret, appeals from his conviction for possession for sale (count 1) and sale (count 2) of heroin. . . . Defendant gave heroin to another person. That person in turn handed the heroin to another individual. That individual handed the heroin to an undercover police officer."

Sort of like musical chairs.  But with smack.

Dawson v. Entek Int'l (9th Cir. - Jan. 10, 2011)

I know that Mr. Dawson wins the appeal.  So he's assuredly happy.  But I still found it somewhat strange that Judge Bury (sitting by designation from Arizona) begins the opinion with:  "Shane Dawson (Dawson), a male homosexual, appeals the district court's grant of summary judgment . . . ."

I readily concede it may just be me.  But it just seemed, I don't know, somewhat weird to personify a guy by his sexual orientation at the very outset of the case.  It's undeniably relevant, since it's a case about hostile work environment based upon precisely that.

But still.  For some reason, I had a slightly negative reaction.  I'd have written it as "Shane Dawson appeals the district court's grant of summary judgment dismissing his claims that he was retaliated against and subjected to a hostile work environment based upon his sexual orientation."  Then get into the details -- which Judge Bury describes at length -- later on.

I concede, however, that my reaction here might be idiosyncratic.

Not that that ever stops me from sharing.  Particularly when, as here, it's the only Ninth Circuit opinion of the day.

People v. Wilkins (Cal. Ct. App. - Jan. 7, 2011)

This opinion is a classic example of the felony murder rule.  It should be in every first-year textbook on criminal law.

That's not a compliment.

Cole Wilkins sneaks onto a deserted construction site late at night, piles some construction materials (light fixtures, applicances, a sink, etc.) into the back of his truck, and leaves.  Four hours later, 60 miles from the scene of the deserted burglary, Wilkins is driving normally when one of the items accidentally falls off his truck.  A tractor-trailer swerves to avoid it, jackknifes, and turns over, trapping and killing a man in a vehicle next to the big rig.

So Wilkins is tried and convicted.  For first degree murder.  Forwhich he's sentenced to 25 years to life in prison.

The Court of Appeals affirms.

If that's the law -- as indeed it is -- then the law is an ass.

There's no better example, in my view, of the absurdities of the felony murder rule than this one.  Some may be equally absurd.  None are more so.

Amazing.

People v. Sigala (Cal. Ct. App. - Jan. 6, 2011)

I had two reactions to this case.  Both of which I thought entirely appropriate.

The first was visceral.  Eeeewwww!  How sick do you have to be to repeatedly molest your own granddaughter?  How even more perverse do you have to be to repeatedly molest four of your own granddaughter?  And how utterly, utterly twisted do you have to be to take a photograph of you molesting one of your granddaughters and with your penis in her twelve-year-old mouth.  Disgusting.  Disgusting disgusting disgusting.

Oh, yeah.  And the guy's got two strikes against him already.  So it should not come as a surprise to anyone that he gets three consecutive terms of 45 to life.  This dude is not sympathetic.  One iota.

So that's my first reaction.  Entirely emotive.  Bleeeeech!  Emotive but, I might add, entirely validly.  IMHO.

I nonetheless had a doctrinal reaction too.  The legal question in the appeal is whether the jury was properly instructed as to what it means to engage in "lewd or lascivious conduct" with a child.  That's surely something a jury needs instructions about, and the trial court told the jurors that this required the touching of a child with the intent to sexually arose either the child or the person doing the touching, but that "the touching need not be done in a lewd or sexual manner."

Now, the defendant here -- Jimmy Sigala -- totally touched his granddaughters in a lewd, sexual, gross and disgusting manner.  So I couldn't agree more fully with Justice Kriegler's concluding statement that even if this instruction was somehow wrong, "A clearer case of harmless error is difficult to imagine."  Right on.

But I'm somewhat less certain of Justice Kriegler's conclusion that the instruction is correct and that the touching doesn't at all need to be lewd or sexual, and that the only thing that matters is the defendant's intent.  My reaction was:  "Really?"

Let's test that hypothesis.  Imagine that a guy, Footsie, gets aroused by children's feet.  So he takes a job putting on children's shoes.  He never touches the kids any differently than any other shoe salesman, and neither the kids nor anyone else ever notices that he's aroused.  He's clearly guilty of a major felony, and massive prison time, under the Court of Appeal's holding.

But why?  He's not done any touching that anyone else (or his replacement) wouldn't have done.  He hasn't caused any actual harm.  He touches a toe or someone else does.  What's the difference?  Is it really right to punish someone purely based upon their intent, without any care whatosever that the actual act that they're performing is the same as anyone else?

The law and economics part of me says:  "Sure.  Why not."  We might rationally want to deter people like Footsie from becoming shoe salesmen on the fear that they might generally go too far, perhaps fondling the shoes more than is necessary.  It's more efficient to prefer someone who's not aroused, and hence that's what we want.  Moreover, we're concerned that someone might see Footsie's arousal, and if they do, that's a big downside, and can create psychological scars on the kids and/or their parents.  Hence we're allowed to, and rationally should, prefer non-fetish shoe salesmen for children, and can punish those otherwise situated.

Now, I'm not really convinced that efficiency concerns actually motivate the Legislature in this area.  In fact, I'm quite convinced of the opposite -- that it's almost entirely the "eewwww" factor that motivates these laws, as well as the fact that we could care less about being potentially unfair to anyone who gets aroused by kids. I have no doubt that the attitude is:  "Screw the sickos."

What's true for shoes is true even for other beneficial practices.  Let's say a parent tends to get aroused when he's holding his kid in the pool.  He holds the kid just like any other parent does, it's just that he gets excited by it.  We punish that.  Not because we want him to let go of the kid, or not take him to the pool, which is a beneficial practice.  But because we think he should get others to do that, rather than a guy who's aroused by the experience.  It's purer.  It's better.  Plus, emotionally, we want to put anyone who gets an erection from his own child in prison.

So I understand all that.  At both an intellectual as well as doctrinal level.  So what Justice Kriegler's saying makes sense.  It's the intent that matters, and even if the way you're touching them is no different than what anyone else does, your intent (and intended arousal) is what justifiably puts you in prison.

But all that leads to the following:  If the act doesn't need to be a "lewd and lacivious" touching (i.e., touching in a particular, sexual way), why does the act having to be a "touching" at all.  Putting on a shoe counts as a felony if you do it to get aroused.  So presumably the same should be true for any act -- not just a touching -- that's done with that intent.  Get aroused by watching children in a playground?  Felony.  Even if you simply look at them the same way anyone else does.  Get an erection from watching "Eight Is Enough" alone in your squalid bedroom?  Lifetime in prison.  If an otherwise innocent touching is illegal due to intent, then it's hard to see why any other innocent act doesn't equally qualify as well.  As long as you do any act with the intent to arose yourself vis-a-vis a child, you're guilty.

Yet no one -- not even California -- goes that far.  Which seems to present problems for the adequacy of the instruction.  Or at least the wisdom of the law.

Mind you, one could say:  "Well, Shaun, you've just convinced me that any act, not just touching, should be a crime too."  Fine with me.  Realize that you've pretty much come darn close to criminalizing mere status.  But maybe you're fine with that.  They're perverts, after all.

But if not, it's somewhat hard to justify the "touching" restriction if the Court of Appeal is right that the "lewd" part doesn't really matter -- that what "makes" an act lewd is that it's done with an intent to arouse.  Because then anything, not just touching, should count.  Yet that's not what the statute says.

Again, to reiterate:  Sigala's totally guilty.  Harmless error:  Totally true.  This sort of stuff ain't okay in the books of anyone, anywhere.  It is lewd touching.  End of story.

But there's a deeper, and I think more complicated, doctrinal story to be told here.  One that's perhaps overlooked because this particular case is so simple.  One that relates to the Court of Appeal's first holding:  that the instruction is itself correct.

So ponder that as we head into the weekend.  As as, ironically enough, I return from co-oping in my four-year-old's preschool class.  At which, I assure you, I touched children with only the most loving, blissfully good intent.  'Cause that's the way I roll.

As should we all.

U.S. v. Carona (9th Cir. - Jan. 6, 2011)

When I read an opinion, I typically look quickly at the caption and then start in on the text.  I don't look at the district court or the lawyers or the author.  I try to evaluate the argument on the merits, and then go back and see who wrote the thing, who the district court was, etc.

So after I read this opinion, which affirmed the conviction of former Orange County Sheriff Mike Carona, I was surprised to see that the opinion was written by Judge Clifton.  Because I've seen better.

It's not that Judge Clifton necessarily gets this one wrong.  He might be right.  But the issues are close ones.  First, the prosecutor faked a subpoena, used an informant, and recorded the informant talking to Carona -- a recording that was the core basis for Carona's ultimate conviction for witness tampering -- even though the prosecutor knew Carona was represented by counsel.  Rule 2-100 of the California Rules of Professional Conduct generally prohibits communicating with a represented party, either directly or through someone else, and in the Second Circuit, I have no doubt that the conviction would be reversed.  But Judge Clifton holds not only that we don't have to reverse the conviction, but that it's not a violation of Rule 2-100 in the first place.

Again, it's not that you can't make a decent argument for that result.  But Judge Clifton's analysis is extremely one-sided, and is so categorical to not really be persuasive to anyone who's not already convinced he's right.  As to whether it's an ethical violation, for example, the vast majority of Judge Clifton's arguments are also ones against the Rule itself:  that it's okay to trick defendants, that questioning's okay as long as it's not at all coercive, that wrongdoers shouldn't escape justice, etc.  Sure, you can believe all that, and they might also be entirely true.  But then even the basic rule shouldn't exist -- and yet it does.  So at least for me, these claims don't help evaluate what types of contacts are okay and what types of aren't.  They're more results-oriented policy assessments designed to persuade the already-persuaded.  Ditto for the subsequent slams on the exclusionary rule at the "remedy" stage of the opinion (saying that even if there was a violation, the court was fine to totally ignore it).  I mean, okay.  But that's hardly the kind of careful, neutral evaluation I like to see when the Court of Appeals deals with a difficult issue on which reasonable minds could -- and here, given the Second Circuit's opinion, clearly do -- disagree.

Ditto for the second issue -- whether the statutue under which Carona was convicted covers what he did -- albeit somewhat less so.  Carona's got a tolerable argument here.  What Carona did was to tamper with a witness and tell him to lie.  But he got acquitted on that count.  Thing is, he was also charged with a separate count of persuading someone to "withhold" testimony from the grand juy, and the jury convicted him of that one.  Problem:  He clearly never told the dude not to testify.  He just told him to lie.  So Carona says he can't be convicted on this count.

Maybe he's right, maybe he's wrong.  Judge Clifton says that "withholding" testimony can include lying, since that's "withholding" the truth.  (I'm paraphrasing several pages of holding, obviously, but work with me on the shorthand.)  Which is kind of true.  But that means there's monster overlap between the two statutes, and substantially -- or arguably entirely -- makes the more targeted statute meaningless.  We generally don't like to do that, particularly with criminal statutes (rule of lenity, etc.), and especially when there's an alternative meaning that's (1) pretty straightforward -- e.g., that "withholding" means not testifying, which is what our usual sense of the term would mean -- and (2) makes both statutes make sense.

Judge Clifton responds that statutes often overlap because they're written by anal, risk-adverse lawyers.  (My words, obviously:  He uses the phrase "belt-and-suspenders" lawyers, showing just how worried attorneys are about their pants potentially falling down, and by implication, how worried they might be about a statutory gap and hence willing to suffer redundancy.)  Okay, I can buy that.  But there's still something to Carona's argument, and I wish I'd have come away from Judge Clifton's opinion thinking that this point was taken more seriously than it was.  My reaction, as with the first part, was that there was a certain result we want to reach, and we'll say whatever is plausible that will help us get there.  Damn the nuance, full speed ahead.

I don't especially like that, and while some judges routinely do it, it's not Judge Clifton's m.o.  Hence my surprise at the author.

Overall, as you can probably tell, this is not my favorite opinion of the day.  Even though it's the only one -- at least from the Ninth.

It's also, I'm sure, not Carona's.  Who now gets to hang in prison with some of the people he helped put there.  Which -- like administrative segregation -- is far from fun.

People v. Cua (Cal. Ct. App. - Jan 3, 2011)

Here's a guy I'm glad is in prison.  Most likely for the rest of his life.

It's a double murder.  Husband and wife.  After (presumably) they found out that the defendant had been embezzling $200,000+ from them over the past several years.

Not even the most heinous murders in the world.  But ones surely deserving of heavy punishment.  In a situation in which there's little doubt as to who did it.

Trusting people:  Usually very good.  Occasionally very, very bad.

Byrd v. Maricopa County Sheriff's Dept. (9th Cir. - Jan. 5, 2011)

Let's do a brief quiz.

The question is whether it's okay for a woman to strip search a pretrial (unconvicted) detainee in a minimum security prison who's a man.  It's not a cavity search or anything like that, but the guy does have to wear thin boxer shorts (and nothing else) as the woman pulls out his waistband.  So less clothing than your typical TSA search, but no junk-touching.  No exigent circumstances, either.

(Parenthetically, by the way, I got subjected to a pretty intensive search in week ago when one of my kid car seats tested positive for explosives.  A full, heavy, "get to know you on the eleventh date" search.  But I gotta say, the TSA agent was not only incredibly nice about the whole thing, but left my actual privates alone.  So I was happy about that, and didn't feel violated at all.  Now, whether that'd be different in airports other than in Kona, Hawaii -- where I imagine they're pretty mellow -- or with a passenger other a white guy who wasn't obviously on vacation with his four small kids, I can't say.  But for me, at least this time, not bad at all.)

Getting back to the main point:  Does that violate the Fourth Amendment as an unreasonable search?  Or, more quiz-like, what will the en banc court decide?

Here's the panel:  Judges Kozinski, Schroeder, Thomas, Graber, Fisher, Gould, Paez, Tallman, Rawlinson, Bea and Randy Smith.  What's your thought?

I'll give you another data point.  Not that it'll help.  It's a 6-5.  Who are the 5?

Got your guesses?  Here are the answers.

Jewish War Veterans v. City of San Diego (9th Cir. - Jan. 4, 2011)

There are about a million opinions about the constitutionality of the Mt. Soledad Cross in San Diego.  I don't just mean in the minds of the many people who know about this litigation.  There are also, like, a million actual opinions.  The case has gone on for over twenty years.  There's a federal district court opinion in 1989.  A Ninth Circuit opinion in 1993.  Both of which held the cross unconstitutional.  Then there was another district court opinion in 1997, after the City "gave the cross away" in an effort to circumvent the district court's decision.  Then more opinions, ultimately resulting in a 2002 Ninth Circuit en banc decision that invalidated yet another purported sale as unconstitutional.  Then passage of federal legislation that allowed the City to give the Cross to the federal government (signed by President Bush), victory for a City referendum that elected to do so, and more opinions -- another district court opinion in 2006 telling the City to take the Cross down, a denial of a stay by the Ninth Circuit, and just when you thought the litigationwas finally concluded, Justice Kennedy came in and granted a stay, keeping everything going.  Then passage of more federal legislation, this time "seizing" the Cross by eminent domain, again designed to get around the district court and Ninth Circuit's decisions.  Then more litigation, and a district court opinion in 2008, this time holding that the Cross was actually constitutional.

Which ultimately leads to this opinion, issued as we usher in 2011.  Holding the Cross again unconstitutional.

The opinion, written by Judge McKeown, is really well done.  Which is saying a lot, because there are a lot of other opinions to compare this one to.  It's moderate, balanced and nuanced.  It centers on factual analysis and attempts to find consensus.  It is far from polemic, and is clearly an attempt both to get people on board as well as to insulate the opinion from further review.  Since you know there's going to be an en banc call, as well as a petition for certiorari.  Both of which have non-trivial chances of succeeding.  (Though I think the latter, given Justice Kennedy, has a higher likelihood than the former.)  Hence the opinion's repeated statements that its analysis is limiting to the particular facts and particular cross here; we're not striking down crosses in cemetaries, we're not striking down all crosses, etc.  This is an effort not only to find common ground in a tough factual as well as doctrinal setting, but also a practical attempt (IMHO) to make sure that all this hard work isn't swept away by a higher court.

I'll let you read the opinion for yourself, which (again) is very good, and I recommend.  Just a few tangential points.

First, the timing's sort of cool, eh?  Ring in a New Year with yet another opinion on the Cross.  22 years and counting.  Plus, given that the oral argument was over a year ago, I'm quite confident that the opinion -- which undoubtedly took a long time to write, since it's a high-profile case and you want to do a good job -- was ready to go, say, 20 days ago.  But no way you're going to issue this one right before Christmas.  Wait 'til the holidays are over, people are back at work, and the new year is here.  Then publish the thing.

Second, this is a Judge McKeown opinion.  Which says many things, some of which I've referred to obliquely above (and others I'll leave unsaid).  But in this particular context, let me add one unusual point.  Judge McKeown is not, uh, entirely ignorant of the presence of the Cross, which stands prominently over La Jolla.  If only because, well, she just so happens to live there.  An interesting tidbit not only in the abstract, but also because it totally shows.  There's stuff in her opinion -- relevant stuff, no less -- about the history of anti-Semitism in La Jolla.  Even I didn't know that stuff, and I've been here for 15 years.  And the citation to the American Jewish History article about housing discrimination in La Jolla?!  Awesome.  Loved it.  Couldn't be more impressed.  You can have arguments pro and con about whether you want your judges to actually know something about the factual underpinnings of a case.  But here's a great example of a judge's particular knowledge being indisputably useful.  It's an interesting aspect of various larger recusal-related debates.  This one, in my view, falling heavily on one particular side.

Finally, I understand why Judge McKeown ends the opinion as she does -- with a penultimate paragraph that essentially says:  "We're not necessarily saying the Cross has to come down."  Seriously, I do.  It's doctrinally correct (who knows what the future will bring?), it's part and parcel of the deliberately moderate tone, it helps to try to insulate the case from review, etc.

But when you've got a litigation that's gone on for over two decades, it's sort of a bummer of a way to end a great opinion.  To essentially say:  "Our Ruling In Round 13 is:  Bring On Round 14."  Couldn't think of a better way to spend yet another decade.

Still, I give this one two thumb's up.  And await, with bated breath, the inevitable next moves.

People v. Lieng (Cal. Ct. App. - Dec. 14, 2010)

When I booted up this opinion, all that was in my field of vision was the right hand side of the caption.  Which said:  "Mendocino County Superior Ct. No. XXXXXX."

To which I immediately involuntarily said -- out loud, even -- "Marijuana case."

Then I scroll down to the first paragraph.  Yep.  "In these consolidated criminal appeals, appellant Richard Lieng appeals from his plea of no contest to one felony count of cultivation of marijuana . . . ."

Too funny.

I mean, I'm sure that Mendocino County has some other appellate cases other than marijuana busts.  I just can't think of any.  At all.

Sometimes the mind's initial impressions are spot on.  Good to know that 2011 isn't any different than 2010.