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

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

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

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

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

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can tell, he's the only person who's described a holding that particular way:  at a minimum, there are no published or unpublished opinions that ever use that same sentence.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

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

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

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

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

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

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

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

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

But it was a marriage.  Not a nullity.

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

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

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

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

This one is going up.  Or at least should.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what happens?

John gets expelled.  The Court of Appeal affirms.

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

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

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

The opinion begins:

"Giovanny Rodriguez shot a man."

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

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

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

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

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

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

Definitely work checking out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Just not for a long while.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If it doesn't seem that way already.

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

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

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

The issue is where you place the kids.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But still.  Wow.  Incredibly harsh.

At least to me.

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

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

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

Which is totally fine.

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

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

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

Never sue your neighbor.

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

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

Today brings yet another example of this general proposition.

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

No fun for anyone.

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

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

What?!

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

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

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

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

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

But the Ninth Circuit disagrees.

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

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

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

No way.

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

BACK TO SEPTEMBER:

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

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

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

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

But I doubt it.

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

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

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

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