Thursday, July 19, 2018

People v. Booth (Cal. Ct. App. - July 19, 2018)

To figure out what the defendant's sentence was, all you need to know are the offenses for which he was convicted:

"Defendant was convicted of five counts of sexual penetration of a child 10 years old or younger; 1 three counts of oral copulation of a child 10 years old or younger; five counts of preparing pornographic images of a minor; one count of possessing child pornography; and one count of sexual exploitation of a child. As to count 9, possession of pornography, the jury found it to be true that defendant possessed more than 600 images and 10 or more images involving a prepubescent minor or a minor under 12 years old."

Yeah.  You're never, ever getting out of prison.  Ever.

The actual details of the offenses are amongst the most disturbing I've ever read.  Too disturbing even to post here.

I'm confident that history will at some point judge our practice of locking up twenty-something-year olds for the rest of their lives, without any effective possibility of release and in the conditions in which they are so confined.  I'm not at all confident that this judgment will be a favorable one.

At the same time, defenders of our contemporary practices will point to cases like this one as why we did what we did.

Anyway, a distressing case.

Ross v. Williams (9th Cir. - July 19, 2018)

Usually the "relation back" principles of FRCP 15 are meaningful only to particular civil litigants who have filed an amended complaint.  But because habeas petitions are technically civil actions, the contours of this rule sometimes make a dispositive difference in a prisoner's liberty.  So it's important to get them right.

The majority and the dissent here disagree on how best to apply these principles.  Here's how the first paragraph of the dissent concisely frames the issue:

"Proceeding pro se, Ronald Ross filed a federal habeas petition a few months before his time to do so under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was set to expire. His form petition asserted ineffective assistance of trial counsel on several grounds, including failure to secure a speedy trial, to assert prejudice from evidence lost before trial, to retain defense experts, and to object to the state’s experts. Ross’s petition contained no specific factual allegations, but he attached to his petition a six-page state-court decision that discussed the factual bases of most of his claims in some detail. The majority holds that Ross’s amended petition—which he prepared with the assistance of counsel but filed several months after AEDPA’s deadline had passed—does not relate back to the date of his original petition because the original petition set out no facts. See Fed. R. Civ. P. 15(c)(1)(B) (providing that an amendment relates back if it asserts claims that arise out of the “conduct, transaction, or occurrence” set out in the original pleading)."

The majority thinks there's no relation back.  Check out the opinion to see if you agree.

Wednesday, July 18, 2018

Willhide-Michiulis v. Mammoth Mountain (Cal. Ct. App. - July 18, 2018)

There are lots of inherent risks of skiing and snowboarding.  You might not think that getting hit by a snowcat operated by the resort and having your leg amputated was one of these inherent risks. 

But the Court of Appeal makes clear today that this is, in fact, all on you.  As Justice Robie puts it: "Mann’s driving of the snowcat with a tiller on an open run was not grossly negligent and was, in fact, an inherent part of the sport of snowboarding and conduct contemplated by the parties in the release of liability agreement. The question now is whether the additional conduct alleged in plaintiffs’ opposition -- Mann’s failure to use a turn signal, making of a sharp left turn from the middle of the snow run, failure to warn skiers on mambo of his presence, and failure to warn skiers of the existence of Old Boneyard Road -- elevated Mann’s conduct to gross negligence. We conclude it does not."

Enjoy the upcoming winter.  Watch out for snowcats.

Tuesday, July 17, 2018

Weinstein v. Blumberg (Cal. Ct. App. - July 17, 2018)

I'm not sure of the prevalence of this practice.  But apparently, some attorneys believe that you can circumvent the discovery motion to compel deadlines in state court by simply filing the notice of motion within the relevant (e.g., 60-day) deadline and then serving the actual supporting documents (points and authorities, declarations, etc.) later, in advance of the hearing.  The theory, I imagine, is that it's easy to file the notice of motion, and then you'll do the real work later, after the deadline has expired but before the ordinary motion briefing schedule.

Sorry, though. The Court of Appeal makes clear today that doesn't work.

Get all those papers in on time next time.

Monday, July 16, 2018

Post Foods v. Superior Court (Cal. Ct. App. - July 16, 2018)

The federal government would generally like people to eat whole grains.  The Court of Appeal holds that policy objective means that California's statute that requires consumers to be warned about things that may cause cancer (via warning labels) is preempted vis-a-vis breakfast cereals in which such cancer-causing chemicals are created by baking, frying, or roasting such grains.

Which is a shorthand way of saying that since telling the people the truth may cause them to react in ways we think are bad for them, we'll make sure they're kept in the dark.

Even when they are (1) adults, (2) in a democracy, who (3) voted to be informed.

The net result may perhaps be improved health for some segment of the population.

With a corresponding decrease in personal autonomy.

Shorter v. Baca (9th Cir. - July 16, 2018)

From today's opinion:

"At trial, Shorter presented uncontroverted evidence that the County, tasked with supervising high-observation housing for mentally ill women, has a policy of shackling the women to steel tables in the middle of an indoor recreation room as their sole form of recreation, and that jail officials routinely leave noncompliant detainees naked and chained to their cell doors, for hours at a time without access to food, water, or a toilet."

At a minimum, that doesn't sound like particularly fun "recreation."

A bit more detail:

"For recreation, deputies move the women to an indoor day room, where they leave the women with one arm restrained by a handcuff extended from a chain secured to the floor. The women sit individually at indoor steel tables and benches. Some watch television and others participate in group activities. Jail policy requires the women to remain handcuffed to the chain next to the table at all times, and HOH detainees do not have access to a gym or an outdoor recreation area. Shorter participated in two and half hours of this type of recreation during her thirty-two days in the jail. The jail’s daily logs also show that on seven days of her confinement Shorter received less than three meals per day. And the same logs show that Shorter showered only three times, going six, seven, or eight days during her confinement without a shower, and instead relying on feminine pads for personal sanitation."

And then there's the always-fun cavity search:

"Shorter also challenges the jail’s visual body cavity search policy, which all inmates are subjected to upon return from trips to court, and the jail’s pervasive practice of leaving noncompliant detainees shackled to their cell doors. The search process begins with the detainee inside her cell, with both hands in handcuffs. The detainee then places her hands outside the chute of her cell, where the deputy, on the other side of the door, unlocks one of the handcuffs. Then, with one hand still handcuffed and attached to a chain outside of the door, the detainee removes her pants, socks, and shoes, as well as her shirt and bra, which remain attached to the chain extending from her handcuff. The detainee must then lift her breasts, lower her underwear, bend over, open her vagina and rectum, and cough. The County’s official policy mandates that inmates shall not be required to “remain in any search position for more time than is reasonable and necessary to complete the search.”

In practice, however, where the detainee failed to comply with the search procedures, it was common for deputies to leave the detainee chained to her cell door for hours at a time. Deputies Avalos and Ortiz testified that they were trained to leave noncompliant detainees who did not follow search procedures chained to their cell doors. Shorter testified that, on three occasions, deputies Avalos and Ortiz left her chained to her cell door for three to six hours, without access to food, water, or clothing. On one occasion, the deputies did not leave enough slack on Shorter’s chain to allow her to reach the bathroom in her cell. Shorter testified that there was only enough slack on the chain to allow her to sit on the floor and hold her hand up in the air. Each time the deputies chained Shorter to her cell door, Shorter freed herself by manipulating her hand out of the restraints or by convincing another deputy to release the restraints. Shorter said that these incidents made her feel like “an animal on display.”"

Plaintiff loses below.  The Ninth Circuit reverses and remands.

Friday, July 13, 2018

L.B. v. M.B. (Cal. Ct. App. - July 13, 2018)

I'm all in favor of using abbreviations to shield the identity of litigants in appropriate cases.  So even in a civil case (as here), if there are allegations of domestic abuse, personal sexual conduct, etc., and there's a minor child involved, it generally makes sense to omit the actual names of the parties.

Yet this is one of those rare cases in which doing so makes little sense.

The nanny is L.G., the (ex-) wife is M.B., and the (ex-) husband is S.B.  It's a celebrity couple and their nanny, with Wife saying that Husband had sex with Nanny, got her pregnant, etc.  Nanny then sues Wife for defamation and other torts, Wife files but loses an anti-SLAPP motion, and Wife then appeals.

All lurid stuff, with more in the actual opinion, so you can well understand why the Court of Appeal employs initials.

Though it merits mention that this stuff is all over the press anyway.  Like, everywhere.

Unless it just so happens that this is merely one of several nanny-threesome-lawsuit-disputes involving people with the initials L.G., M.B., and S.B. that doesn't involve Lorraine Gilles, former Scary Spice Melanie G., and Stephen Belafonte.  In which case, yeah, definitely use initials.

P.S. - FYI, "M.G." loses her appeal.

Thursday, July 12, 2018

People v. Torres (Cal. Ct. App. - July 12, 2018)

See whether you think this is (1) awesome police work, or (2) an interrogation that convinced a 73-year old Mexican immigrant to falsely confess to molesting a child.  I can see strong arguments on both sides.

The elderly man at issue was clearly not sophisticated (a huge understatement).  The police took advantage of that by repeatedly lying to him and convincing him that because the "science" would clearly prove him guilty, his only way "out" was to say what the police were telling him he had to say.  Which he then did.  You can definitely see how this might result in false confessions.  And it's not like there's a ton of other evidence that the guy in fact molested the four-year old girl at issue.

At the same time, maybe the guy is guilty, and the police got him to incriminate himself.  Perhaps accurately.

It comes down, I think, to a value judgment about what level of risk you're willing to take that you are encouraging false confessions.  (The theory that we can just admit the evidence and "let the jury sort it out" seems both a cop-out and demonstrably false.)  If you care deeply about not putting an innocent person in prison, I think that interrogations like this one have to be stopped.  But if you're willing to run a 10% (5%? 1%?) risk of a false confession, then I can see why you'd let this stuff go on.

Ultimately, here, the Court of Appeal holds that the present facts are pretty darn close to a prior case that held that the interrogation was custodial, so it was ineffective assistance of counsel not to try to exclude the confession (since there were no Miranda warnings).  But the broader issue remains.  Say the police had indeed given the warnings.  Which I have no doubt would not have mattered in the slightest to what the elderly man in fact did here.  Are we then totally fine with police methods like these?

Wednesday, July 11, 2018

Richardson v. DMV (Cal. Ct. App. - July 11, 2018)

Yes, the 93-year old woman at issue had a history of causing accidents.  Yes, the DMV suspended her license previously, and yes, I'm confident that other DMV employees may not have passed her on her final driving test.  And, yes, she hit the plaintiff on his motorcycle and caused serious injuries.  ("The accident severed Richardson’s left leg, broke his right leg and pelvis, damaged his spine, and left him paralyzed from the waist down.")

But there's a specific statute that immunizes the DMV for liability for making alleged mistakes in the issuance or licenses.  So it rightly obtains summary judgment.

Sorry about that.  But it's the law.

Tuesday, July 10, 2018

U.S. v. Hernandez (9th Cir. - July 10, 2018)

It's bad enough when you sleep with a 17-year old minor you coach in club softball.  You only make it worse for yourself when you exchange intimate photos with her.  Because that constitutes child pornography.

And the whole shebang gets you over 23 years in prison.

National Asian American Coalition v. Brown (Cal. Ct. App. - July 10, 2018)

Today the Court of Appeal decides the fate of $331 million held by the State of California.  And directs that it be transferred out of the state's General Fund and back into the National Mortgage Settlement Fund.

A pretty hefty chunk of change.

Monday, July 09, 2018

U.S. v. Obendorf (9th Cir. - July 9, 2018)

This is not the most monumental Ninth Circuit opinion you'll ever read.  About a misdemeanor conviction, no less.  So you can survive and flourish the rest of your life even if you never come across it.

But if you're a city kid like me, you'll nonetheless learn something if you take a gander.  Since it's abut baiting ducks.  Something I didn't know a lot about before today.

It's a case from Idaho (of course).  It involves the intersection between people who like to kill ducks for sport and federal laws that try to regulate this practice:

"Obendorf’s farm lies just north of the Boise River, near the town of Parma, Idaho. Hundreds of thousands of ducks pass by the farm during their annual migration each fall. One of Obendorf’s fields is about fifteen acres in size and planted with corn. It has come to be known as the duck field . . . .

A few times a year, federal agents from the U.S. Fish and Wildlife Service (FWS) patrol the river valleys of southwestern Idaho by airplane, looking for signs of waterfowl baiting. On November 15, 2013, FWS Special Agent Scott Kabasa and two of his colleagues flew over Obendorf’s farm. Such flights are routine, but Kabasa paid special attention to Obendorf’s farm during the November 15 flight because he had received a number of tips that Obendorf was baiting ducks on his property. As the plane passed over Obendorf’s farm, Kabasa noticed several large piles of corn in the duck field, including a pile near a hunting pit blind. Kabasa also noticed the duck field had been harvested differently from other fields on Obendorf’s farm. Most of Obendorf’s cornfields were fully harvested, but the duck field was “strip combined”—meaning it was harvested in alternating strips such that many rows were left untouched.

That night after dark, Kabasa and Brian Marek, a conservation officer with the Idaho Department of Fish and Game, snuck onto Obendorf’s farm to take a closer look. Kabasa and Marek counted six large piles of loose corn kernels on the duck field, including one “within shot-shell range” of the pit blind. They also inspected the stripcombined rows in the duck field and observed “an exorbitant amount” of corn kernels littering the ground under the stalks. Kabasa later testified that “the vastness of the corn that was on the ground was unbelievable.” The agents walked Obendorf’s other cornfields, which, unlike the duck field, appeared neatly combined and fully harvested."

So the authorities investigate further and eventually charge (and convict) Mr. Obendorf.  Which leads to today's Ninth Circuit opinion by Judge Christen.  Who writes a 23-page opinion about the relevant statutes and regulations that ends with:

"The Migratory Bird Treaty Act regulations do not create a regulatory exception to the MBTA’s ban on unlawful baiting. Obendorf was charged with unlawful baiting, not unlawful hunting, so 50 C.F.R. § 20.21(i)(1) could not have immunized his conduct. Although the parties misapprehended the law below, any error was harmless. Accordingly, Obendorf’s conviction is AFFIRMED."

So slightly safer to be a duck today in Idaho.


Thursday, July 05, 2018

Jameson v. Desta (Cal. Supreme Court - July 5, 2018)

Good news for indigent litigants, who will now get a court reporter (for free) even in those courts that have done away with official court reporters.

Slightly bad news for non-indigent litigants.  As footnote 18 of the opinion suggests that that it'll be the opposing (non-poor) parties who'll pay for that official reporter.

But a unanimous opinion demonstrating that the California Supreme Court continues to care about the quality of justice dispensed to indigent litigants.

Monday, July 02, 2018

Brown v. Smith (Cal. Ct. App. - July 2, 2018)

Some summaries are concise and to the point.  Those are awesome.  But sometimes they do even more.  Maybe even give some historical background, discuss precedent, etc.

Today's opinion is a good example of the latter category.

Here's how Justice Grimes begins the opinion.  One that's important in its own right on the merits, but also a great example of style:

"In 1890, the California Supreme Court rejected a constitutional challenge to a “vaccination act” that required schools to exclude any child who had not been vaccinated against small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230 (Abeel).) In dismissing the suggestion that the act was “not within the scope of a police regulation,” the court observed that, “[w]hile vaccination may not be the best and safest preventive possible, experience and observation . . . dating from the year 1796 . . . have proved it to be the best method known to medical science to lessen the liability to infection with the disease.” (Id. at p. 230.) That being so, “it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.” (Ibid.)

More than 125 years have passed since Abeel, during which many federal and state cases, beginning with the high court’s decision in Jacobson v. Massachusetts (1905) 197 U.S. 11 (Jacobson), have upheld, against various constitutional challenges, laws requiring immunization against various diseases. This is another such case, with a variation on the theme but with the same result.

We affirm the trial court’s order dismissing plaintiffs’ challenge to an amendment to California law that eliminated the previously existing “personal beliefs” exemption from mandatory immunization requirements for school children."

Nicely done.